(a)Standards for interpreting intent to provide private roads;

(b) The case reversing the original judgment which held that the landowner granted the right of free traffic to the general public where the land designated and publicly announced as a planned road site is actually being used as a road;

A. In a case where a neglected land is actually being used as a public road for the traffic of the general public without implementing an urban planning project after making a public announcement of the land pointed out, etc. as to the urban planning that is one of the urban planning facilities, if the owner of the land provides the land as a road and grants the right to passage free of charge to the neighboring residents or the general public or gives up the exclusive and exclusive right to use and benefit from the land, the reason why he/she owns the land or its scale, the location and nature of the land to be used as the road, the relationship with other neighboring land, the degree of contribution to the land for the effective use and benefit of the remaining land sold after a careful consideration shall be made by comprehensively taking into account the following factors: (a) the reason why he/she sold the land in accordance with the urban planning, the ownership period, and other reasons why he/she sells the land in accordance with the urban planning plan;

(b) The case reversing the original judgment which held that the landowner granted the right of free traffic to the general public where the land designated and publicly announced as a planned road site is actually being used as a road;

Article 741 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 35649, Oct. 27, 1992) (Gong1992, 1020) and 93Da31412, May 13, 1994 (Gong1994, 166)

Plaintiff 1 et al., Counsel for the plaintiff-appellant and one other, Counsel for the plaintiff-appellant

Suwon-si Attorney Kim Tae-tae, Counsel for the defendant-appellant

Seoul High Court Decision 92Na57372 delivered on May 19, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, since the above land was owned by the non-party 1 and the non-party 1 had been partially 349 square meters prior to the sale of the above land (hereinafter referred to as the "land prior to the sale"), since the land was owned by the non-party 1 and the non-party 1 had no exclusive right to use and benefit from the sale of the above land on the ground that the non-party 1 had no exclusive right to use and benefit from the sale of the above land, and the land was owned by the non-party 1 and the non-party 1 had no exclusive right to use and benefit from the sale of the above land on the non-party 1 to the non-party 2's building site, the non-party 1 had no right to use and benefit from the sale of the above land on the non-party 1 to the non-party 2's building site, and the land remaining after the sale of the land to the non-party 1 to the non-party 1 to the construction permit to use the land on the road.

2. However, in a case where a neglected land is actually being used for the traffic of the general public without implementing an urban planning project by publicly announcing the land that is one of the urban planning facilities, the head of the Si/Gun shall not execute the urban planning project, and if the owner of the land directly provides the land as a road to the general public, or if he appears to have given exclusive and exclusive rights to use the land, he shall be deemed to have given the right to use the land without compensation to the neighboring residents or the general public; the circumstance or scale of the sale of the land in accordance with the urban planning; the location and nature of the land to be used as the road; the degree of contribution to the land in question to the other neighboring land; and the degree of the remaining land to be sold for the effective use and benefit of the urban planning; it is difficult to accept the decision of the court below on the ground that the Plaintiffs were granted the right to use the land without compensation to the neighboring residents or the general public; see, e.g., Supreme Court Decision 200Da94929, Dec. 29, 1997; 2098Da197; 294.209.2;

First, according to the facts established by the court below as to the process of the creation of housing site or the process of the installment sale, even if examining the evidence of the court below, it can be found that the plaintiffs sold 12 lots except the land in this case after dividing the above land into 1 through 9, 22, and 25 lots as stated in its reasoning. The above evidence can not be a evidence to support that the plaintiffs conducted a group of housing site creation projects on the land before the division. Rather, according to the above evidence 3-1 through 20, Eul evidence 7-1, 6, 7, 8, the above 5 through 8 lots were re-divided into 18 lots after the plaintiffs sold them, and the change of land category as well as the above 18 lots was made by the purchaser in the future after the purchase registration of ownership was made by the plaintiffs. In light of the fact that the plaintiffs' request was not accepted.

Furthermore, according to Gap evidence No. 1, Gap evidence No. 3 and Eul evidence No. 5 and the result of the first instance court’s on-site inspection, the land prior to subdivision was already connected to the existing road No. 465 prior to the designation and public notification of the land scheduled for the road, and the land in this case was turned into a three-distance road. Among them, the road was cut into a three-distance road at each section of the same 14-4 and 134-3 of the same Act, and at the same point of 15 meters, the road was installed at the roadside part at the same time. On the other hand, the road was built at the 286-8 direction as above and its width was 10 meters, which was actually connected to other public services or the above existing road, and it was inevitable for the plaintiffs to be aware that the remaining land was to be sold from the land to the new road No. 2600, Apr. 21, 194 to the public announcement of this case’s land, as stated in its reasoning.

Nevertheless, the court below held that the plaintiffs provided the land of this case as a road and granted the right to free access to neighboring residents, etc. on the grounds as determined by the court below. Thus, the court below did not err by misunderstanding facts or misunderstanding legal principles as to unjust enrichment in violation of the rules of evidence, and it is clear that such illegality affected the judgment. Thus, there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)