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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
Reasons
1. The reasoning for the court’s explanation of this case is as stated in the judgment of the court of first instance, except for the following determination as to this case, and therefore, this is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. The defendant asserts that the plaintiff's filing of the claim of this case on the ground that the land of this case, the land category of which was changed on November 1, 1940 to a road and was used for the general public for more than 70 years since that time, constitutes abuse of rights.
In order to say that the exercise of the right is an abuse of the right, the subjective purpose of the exercise of the right is to inflict pain on the other party and to inflict damages on the other party, and there is no benefit to the person who exercises the right, and the exercise of the right should be objectively deemed to be in violation of social order.
Unless it falls under such cases, even though there is a significant amount of damage to the other party than the profit that the exercise of the right gains by the exercise of the right, such circumstance alone does not constitute abuse of rights.
(see, e.g., Supreme Court Decision 2009Da58173, Feb. 25, 2010). With respect to the instant case, the health care unit for the Plaintiff’s exercise of the right is solely for the purpose of causing pain to the other party and causing damage to the other party, and there is no benefit to the person who exercises the right.
Therefore, the defendant's above assertion is without merit, since the exercise of the right is not against social order.
3. In conclusion, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just as this conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.