2020Da229239 Land Delivery

Plaintiff:

Kimcheon-si

Law Office of Pohang (Law Office)

Attorney Lee Dong-soo

Daegu District Court Decision 2019Na303788 Decided April 28, 2020

March 11, 2021

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. Relevant provisions and legal principles

A. Unless there exist special circumstances, such as infringement of the rights, etc. of other persons with respect to a road, a person who intends to pass through a public road, which is an unspecified number of the general public, may, in a case where a third party infringes on the freedom of passage of a specific person by causing interference with daily life by causing interference with the passage of the road only for a specific person, constitute a tort under the Civil Act. The infringing person may file a lawsuit against interference with passage to prevent the exclusion of interference or future interference (see, e.g., Supreme Court Decision 2010Da63720, Oct. 13, 201).

B. Article 185 of the Criminal Act provides that “A person who damages or destroys a road, waterway, or bridge, or obstructs traffic by any other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” Here, the term “land” refers to a place of public passage, that is, a place of public nature where many and unspecified persons, or vehicles and horses are able to freely pass through, without limited to a specific person (see Supreme Court Decision 2017Do1056, Apr. 23, 2019). The term “land” refers to a place of public nature in which general traffic is able to be freely passed (see Supreme Court Decision 2017Do1056, Apr. 23, 201). The ownership relation of the site, traffic right relation, or traffic congestion, etc. is not provided under the Criminal Act (see Supreme Court Decision 88Do18, Apr. 25, 198).

C. In a case where a certain piece of land is used for public passage, i.e., a road for public use, regardless of the process of its establishment, the exercise of ownership of the site is restricted, and this constitutes social constraints on the property rights that the owner should recognize. Therefore, a claim against the local government occupying and managing the land for public use for removal, occupation, transfer, or prohibition of passage of the road provided for public use should be deemed as an abuse of the right that is not permissible in principle under the legal order (see, e.g., Supreme Court Decision 93Da26076, Sept. 28, 1993).

D. Meanwhile, the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages defines roads as “rural roads” which are officially announced by the head of a Gun among the roads located in an Eup or Myeon area, which are located in an Eup or Myeon area not prescribed by the Road Act, as roads for the convenience of traffic and production and distribution activities of residents in agricultural and fishing villages (Article 2(1)); and stipulates that the head of a Gun, in an agricultural and fishing village master plan, a maintenance and improvement plan, and a project plan shall be formulated and systematically managed (Article 6, 7, and 8), in a road area, a person who intends to install, rebuild, alter, or remove artificial structures, things, or other facilities, or occupy and use roads for any other purpose shall obtain permission from the head of a Gun (Article 18); and a person other than the head of a Gun shall obtain permission from the head of a Gun to upgrade a road (Article 5(2)); and the abolition or alteration of a designated road shall

2. Determination as to the instant case

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On January 23, 2014, the Plaintiff purchased forest land of 59,504 square meters ( Address 1 omitted) in a voluntary auction procedure and completed the registration of transfer of ownership.

(2) The instant forest land has a road indicated in the attached list of the lower judgment (hereinafter “instant road”), which is the only passage to and from the temple “○○○○,” located within 793 square meters of a historic site in Kimcheon-si, Kimcheon-si ( Address 2 omitted), and is used by neighboring residents as well as by the Buddhist inspection.

(3) Since the building of “○○○○”, the instant road was naturally formed as part of the Saemaul Project around 1985. A cement packing was made as part of the Saemaul Project. Around 1994, the Defendant, a local government, recognized it as a “public contribution for the convenience of transportation and production and distribution activities of residents in rural areas” under Article 2(1) of the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages, designated it as an agricultural and fishing village and managed it for not less than 30 years.

B. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the instant road was naturally formed for a long time, and that the Defendant, a local government, constitutes a contribution offered to the general public in the course of managing it as an agricultural and fishing village under the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages for more than 30 years. It is highly likely to deem that the Plaintiff, who purchased the instant forest in the course of voluntary auction, seeks removal and delivery of the instant road against the Defendant, even

C. Nevertheless, the lower court rejected the Defendant’s abuse of right defense, and accepted the Plaintiff’s claim for removal and delivery on packaging. In so determining, the lower court erred by misapprehending the legal doctrine on contribution, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge