Plaintiff (Attorney Cho Sung-ok, Counsel for the plaintiff-appellant)

Kimcheon-si (Attorney Lee Im-deok, Counsel for the defendant-appellant)

April 9, 2020

Busan District Court Decision 2017Da54873 Decided February 12, 2019

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant, as the Plaintiff

(a) remove cement packaging roads of the land listed in the separate sheet, and deliver each of the above land;

(b) pay the amount of money calculated at the rate of KRW 261,250 and KRW 6,040 per month from January 23, 2018 to January 23, 2018;

C. It shall pay 10,00,000 won in collaboration with the Defendant △△△△△△ and the interest rate of 15% per annum from the day following the day of service of the copy of the complaint of this case to the day of full payment.

2. Purport of appeal

Of the part against the defendant in the judgment of the first instance, the part of the claim for removal and delivery of land, excluding the part of monetary claim, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is that the reasoning of this court is stated in the reasoning of the judgment of the first instance except for the defendant's further determination as to the assertion made by this court as follows. Thus, it is acceptable in accordance with the main sentence of Article 42

2. Additional determination

A. Summary of the defendant's assertion

1) Existence of possessory right holder

Before 30 to 40 years, the Defendant designated the portion indicated in the separate sheet A (B) as a statutory road and had been in the cement package on the ground with the consent of the Nonparty who was the owner of the forest of this case at the time, and has been managing it until now (hereinafter the said cement package road is referred to as the “instant road”).

Therefore, the defendant has a legitimate possessory right to the land of this case, which is the site for the road of this case (including the land indicated in the list b. to d.).

2) Abuse of rights

The instant road was used as a passage through which the Plaintiff had access to ○○○○○, before acquiring the ownership of the instant forest on January 23, 2014, as the only passage leading to the Buddhist Buddhist Buddhist Buddhist Buddhist Buddhist Buddhist Buddhist Temples ○○○○ (hereinafter “○○○”) in the public service. The Plaintiff was awarded a successful bid of the instant forest with the knowledge of the aforementioned fact in the auction procedure, and did not seek removal, etc. of the instant road to the Defendant for three years thereafter.

While the benefit of the Plaintiff to remove the road of this case and take over the land of this case is very small, the road of this case is prevented from being used as a passage, and the damage to ○○○ and neighboring residents is enormous. Therefore, the Plaintiff’s request for removal of the road of this case and the request for delivery of the land of this case cannot be allowed as it constitutes abuse of rights.

B. Determination

1) Determination as to the assertion of possessory source

A) The circumstance that the instant road was designated as a statutory road and managed by the Defendant is merely the meaning that the Defendant was the possessor of the instant road site, not immediately acknowledged as the possessor of the right to possess the instant land. Furthermore, even if the Defendant obtained the Nonparty’s consent at the cement Packaging of the instant road, such circumstance alone is insufficient to deem that the right to possess the instant land is naturally acknowledged in relation to the Plaintiff, who acquired the ownership of the instant forest after the said fact.

B) However, there is room for harming the Defendant’s assertion as above to the purport that “the Nonparty, who was the owner of the instant forest, renounced exclusive and exclusive rights to use and benefit from the instant part of the road, and the Plaintiff acquired the ownership of the instant forest upon knowing such circumstances, and thus, the Plaintiff may not exercise exclusive and exclusive rights to use and benefit from the instant part of the road.” As such, this is examined.

Unless there exist any special circumstances, it is reasonable to deem that a person who specifically succeeds to the ownership of land, the exercise of exclusive or exclusive rights by the original owner of which is restricted by auction, sale, and payment in substitutes, etc., to have acquired the ownership of such land, even though he/she was aware of the fact that such restriction on use and profit was imposed, or that at least there were at least such circumstances. As such, such specific successor may not exercise exclusive or exclusive rights to use and profit from such land. In such cases, whether there are special circumstances allowing a specific successor to exercise exclusive or exclusive rights to use and profit from such land should be determined by comprehensively taking into account the circumstances such as the process and purpose of acquisition of the land by the specific successor, as well as the situation where the land was offered to the general public for use and profit-making, and whether there was a decline in property value due to the restriction on the exercise of rights to use and profit-making, and if the original owner’s gratuitous provision of the land was related to the permission, registration, etc. for use of the land by the general public, it should be determined by comprehensively taking into account all the following circumstances (see Supreme Court en banc Decision 201646.

Even when it is assumed that the non-party, who is the previous owner of the instant forest, renounced exclusive and exclusive rights to use and benefit from the instant road, in light of the following facts and circumstances acknowledged by comprehensively taking into account the descriptions or images of Gap’s 1 through 6, 8 through 18, 22, 23, Eul’s 2, 3, and 5 through 8 (including each number; hereinafter the same shall apply) and the appraisal commission of the first instance court’s appraiser Nonparty 2 and the overall purport of the pleadings, it is reasonable to deem that the Plaintiff’s exercise of rights to the instant road portion is not restricted.

① Since the instant road and the instant road are connected only to ○○○○○○, it is difficult to deem that the instant road has been provided for the purpose of general public, not for the visitors of ○○○○○ History.

② ○ filed a lawsuit against the Plaintiff on the confirmation of the right to passage over surrounding land as Daegu District Court Decision 2019Na31531, Daegu District Court Decision 2019Da31531, and the judgment was rendered on December 12, 2019 that the Plaintiff had the right to passage over surrounding land at ○○○○ on the land indicated in the attached Table A., and the Plaintiff appealed and is pending in the lawsuit as Daegu District Court Decision 2019Na32542.

③ Whether the Plaintiff provided the instant land as a road or not can be seen as having a direct interest with the Defendant, mainly in relation to the ○○○ company.

C) Therefore, the defendant's above assertion cannot be accepted.

2) Determination as to abuse of rights

A) For the purpose of the exercise of the right to be an abuse of the right, a subjective purpose of the exercise of the right must be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should not be viewed as a violation of social order. Unless it does not fall under such a case, even if the loss of the other party is significantly high compared to the profit that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute an abuse of the right (see Supreme Court Decisions 2003Da11967, Jun. 24, 2003; 2007Da5397, Sept. 25, 2008, etc.).

B) In full view of the facts and circumstances acknowledged earlier, the following circumstances revealed by comprehensively taking account of the respective descriptions or images of Gap evidence Nos. 1 through 6, 8 through 18, and 20 through 23, the evidence submitted by the defendant alone is merely causing pain and damage to the defendant, and there is no benefit to the plaintiff, and there is no other evidence to acknowledge it as the exercise of rights that are objectively contrary to social order.

① Since the principal user of the road of this case is the visitors of ○○○○○ History, even if the Plaintiff’s claim of this case is accepted, it is difficult to readily conclude that the Defendant or the general public suffers from pain or damage.

② The Plaintiff cannot be deemed to have suffered damage due to the damage of trees or the gathering of medicinal herbs without permission by the persons passing the instant road by impairing the forest land of this case.

③ Even if the instant road is the only passage from a public road to ○○○○○, it is difficult to readily conclude that cement packaging has to be installed for traffic, in light of the following: (a) the length of the instant road is about 680 meters; (b) the passage of the instant road is about 11 minutes; and (c) the passage of the instant road is

④ Even if cement packaging of the instant road is removed, the use of the road will still be possible. Therefore, it is not anticipated that enormous interference with the access of ○○○○ company will be caused.

⑤ In addition, there is insufficient evidence to deem that the Plaintiff filed the instant claim with the intent to bullying the Defendant or neighboring residents.

Therefore, we cannot accept this part of the defendant's argument.

3. Conclusion

Thus, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal is dismissed.

(attached Form omitted)

Judges Lee Young-young (Presiding Judge)