Whether the owner of the previous land may seek the exclusion of interference against the person who illegally occupies the reserved land for replotting, if there is a designation of reserved land for replotting as a result of the land readjustment project (affirmative)

Where there is a designation of the reserved land for replotting as a result of the implementation of a land readjustment project, the owner of the previous land may acquire the right to use and benefit from the land designated as the reserved land for replotting and seek exclusion from interference.

Article 57 of the Land Readjustment Projects Act

Supreme Court en banc Decision 77Da1831 Decided April 11, 1978 (Gong1978, 10784)

Plaintiff

Defendant 1 and 2 Defendants, et al., Counsel for the plaintiff-appellant-appellee)

Seoul Civil District Court Decision 91Na29919 delivered on December 9, 1992

The appeal is dismissed.

The costs of appeal shall be assessed against the defendants.

The grounds of appeal are examined.

1. Based on macroficial evidence, the court below determined that the 105 square meters of the land indicated in the annexed drawings (the land in this case) indicated in the decision in the execution of the land readjustment project around October 1985 as to the land of Eunpyeong-gu Seoul ( Address 1 omitted) and 76 square meters (previous land) owned by the plaintiff was designated as the land reserved for replotting. On the other hand, the land in this case designated as the land substitution for replotting included a large portion of the site adjacent ( Address 2 omitted). Since June 20, 1979, the defendant 1 owned the building portion as indicated in the above ( Address 2 omitted) and occupied the site without title. Since June 20, 1979, the defendant 2 and the defendant 3 lawfully confirmed the fact that some of the buildings in this case are occupied, the owner of the previous land can obtain the right to use and benefit from the land designated as the land substitution for replotting and seek the removal of interference. Accordingly, the defendant 1 has the duty to remove the above building portion constructed without title from each part.

In light of the records, the court below's determination of recognition is right and wrong, and the ground for the lawsuit that part of the land incorporated into the above land scheduled for substitution is not the ownership of the Seoul Special Metropolitan City, which is the land scheduled for substitution is not owned by the land readjustment project implementer, is not asserted in the court below, and it cannot be deemed that the land substitution disposition is null and void as a matter of course on the ground of such ground. Therefore, there

2. In addition, the court below rejected the Defendants’ assertion on the prescriptive acquisition of the above building site since Defendant 1 newly constructed the above building site on June 20, 1970 and thereafter occupied the building site thereafter, and the prescription period for the acquisition of possession on June 20, 1990 has expired, it cannot be deemed that Defendant 1 had possessed the above previous land owned by the Plaintiff, not the previous land [ Address 1 omitted] before the designation of the land scheduled for replotting. Meanwhile, since it is apparent that Defendant 1 had not occupied the above building site until then 20 years since around October, 1985, since it is apparent that Defendant 1 had not passed since the time when he occupied the above building site, the claim for the prescriptive acquisition by prescription against the Defendants is without merit.

In light of the records, the above recognition judgment of the court below is just and acceptable, and there is no error of law as pointed out in the theory of lawsuit. The argument is without merit.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo (Presiding Justice)