2016Da238854 Undue gains

A

Yeongdeungpo-gu Seoul Metropolitan Government

Seoul Southern District Court Decision 2015Na53327 Decided July 1, 2016

November 10, 2016

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In a case where a private land is naturally occurring or is classified into a proposed road site and actually used as a road for the public traffic, the owner of the land grants a neighboring resident or the general public the right to exclusively use and benefit from the land by providing the land as a road, or waives his/her exclusive and exclusive right to use and benefit from the land. In interpreting the intent, it shall be determined by comprehensively examining the following: (a) the developments and period he/she owns the land; (b) the developments and scale of selling the remaining land in installments; (c) the location and nature of the land used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the degree of contribution to the land in question for the effective use and benefit of the remaining land partitioned and sold (see, e.g., Supreme Court Decisions 88Meu1697, Jul. 11, 198; 2013Da3454, Sept. 12, 2013).

2. According to the reasoning of the lower judgment, the lower court: (a) comprehensively based on its adopted evidence, divided the following facts: (b) on May 20, 1968, the first company Co., Ltd. (hereinafter referred to as the “Japanese Co., Ltd.”) divided the land into C, D, and B; (c) on July 1, 1968, it divided the land of Yeongdeungpo-gu Seoul Metropolitan Government, Yeongdeungpo-gu, through the survey of the Intellectual Property Association on May 20, 1968, and divided the land of 316 square meters (hereinafter referred to as the “c, D, and E; and (d) on the one hand, divided the land of this case into the shape and B (hereinafter referred to as the “instant land”); (c) on the one hand, the first company divided the land of this case into the F, G, or H into the shape and shape of each of the instant land; and (d) on the one hand, the Defendant divided each of the instant land into the shape and shape of the public, and found that each of the instant land to be divided into the shape or shape.

Furthermore, the court below rejected the defendant's assertion that the owner of the land of this case provided it as a road at the time of the above installment sale, and renounced exclusive use and profit-making rights, based on the fact that the transfer registration of ownership was completed in the name of a third party on January 21, 1969, prior to the land divided from the mother lot number of this case, and that the K, L, and H land in the shape of the special decision that was divided from the above F F F F F F F land has completed the transfer registration in the name of the third party on February 7, 1969, rather than the other land divided from the same mother lot number, the first company cannot be deemed to have waived exclusive and exclusive use and profit-making rights for the land of this case.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the evidence adopted by the first instance court and the lower court (in particular, evidence Nos. 15-1 through 7 and evidence Nos. 20-1 through 22 of the evidence No. 15-2), as seen above, the registration of ownership transfer has been completed on September 19, 1968 for the entire divided lands, and for the remainder of land except Q (after division) and U, the registration of ownership transfer has been completed on February 7, 1969 for Q-owned lands. The current status of Q-owned lands continues to be owned by Q-owned lands by Q-owned lands until July 20, 207, while the remaining lands have not been sold to third parties since the aforementioned division was approved by the lower court.

Examining these facts in light of the legal principles as seen earlier, Q, by Japan, owned the land and other land including the instant land, divided by the mother lot number of the instant case on September 19, 1968, on which it was owned jointly with S and T on February 7, 1969, and thereafter sold the remaining land except the instant land to a third party, and the instant land was provided as a road, there is considerable room to deem that Q renounced renounced the exclusive and exclusive right to use and benefit from the instant land.

Nevertheless, the lower court rejected the Defendant’s assertion on the waiver of the right to use benefits solely based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of the right to use benefits, etc., which affected the conclusion of the judgment. The allegation contained in

4. 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.

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee