2017Da249073 (Main Claim) Undue profit

2017Da249080 (Counterclaim) Transfer of Ownership

Appellant

The list of Plaintiffs (Counterclaim Defendant) is as shown in the attached Table.

Plaintiffs (Law Firm Gowon, Attorneys Lee Jae-chul, Counsel for the plaintiff-appellant)

Hun-Hun, Lee Young-ia

Saryary Appellee

Sound Group of Chungcheongbuk-do

Attorney Kim Jong-he et al.

Seoul Central District Court Decision 2016Na67372 (main office), 2016Na decided July 10, 2017

67389 (Counterclaim) Judgment

April 11, 2019:

The part of the judgment of the court below regarding the main lawsuit shall be reversed, and that part of the case shall be remanded to the Seoul Central District Court.

All of the appeals filed by the Defendant (Counterclaim Plaintiff) against the counterclaim is dismissed.

The costs of appeal against counterclaim shall be borne by the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. As to the grounds of appeal by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”)

A. The lower court acknowledged the following facts.

1) Before N,647 P. N. 2,647 P. N. 2,647 P. The mother of this case (hereinafter “the mother of this case”) was found to be 0 April 10, 1912. After that, the mother’s land of this case was transferred to P on November 26, 1926, and the ownership was transferred to P on April 20, 1931, and the ownership was transferred to Q under Q’s name on April 24, 1931.

2) The land cadastre of the mother land of this case is indicated as the “sub-road development” on December 6, 1913.

3) The mother land of this case was divided into November 25, 1933, R prior to M, M No. 141, and S prior to M. The land category was changed on November 25, 193 to road (hereinafter “instant land”);

4) Meanwhile, in order to use the instant land as a school site on December 25, 1917, U.S. acquired the ownership of V forest No. 18,858 adjacent to the instant land, and obtained authorization for the establishment of W Middle Schools on August 31, 1946. After that, X High Schools opened the school on October 10, 1951. The instant land has been used as a access road to the said site from much more than before X High Schools opened the school site.

B. Based on the above facts, the lower court determined that: (a) the part of the mother land of this case was already constructed as a road around December 12, 1913, when the land was partitioned from the mother land of this case, and was actually used as a road from around that time; and (b) the purport that part of the mother land of this case was constructed as a road around December 6, 1913 and was specified in the former land cadastre of this case; (c) it may be deemed that the part of the mother land of this case was constructed as above, or that 0, the owner of the mother land of this case, was likely to waive the exclusive right to use and benefit from the mother land of this case; and (d) the exclusive right to benefit from the land of this case was divided from the mother land of this case on November 25, 193 to the same day; and (d) the exclusive right to benefit from this case’s land of this case, which was used as a part of the adjoining land of this case from around 16, 1917.

C. However, we cannot accept the above determination by the court below for the following reasons.

1) In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a road for the public traffic, whether a landowner is unable to exercise exclusive, exclusive, and beneficial rights to such land by providing the land as a road for its own use and granting the neighboring residents or the general public the right to passage free of charge, shall be determined carefully by taking into account the following: (a) details and holding period of the land owner’s ownership; (b) details and scale of the land owner’s provision of the land for public use; (c) the owner’s interest or convenience arising from the provision of the land; (d) the location or form of the relevant land; (e) relationship with the neighboring land; and (e) the surrounding environment, etc.; and (e) weighing and balancing between the ownership of the land owner and the public interest (see, e.g., Supreme Court en banc Decision 2006Da34206, Jan. 11, 207; 2016Da264556, Jan. 24, 2019>

2) The record reveals the following facts and circumstances.

A) On December 6, 1913, the lower court deemed that 0, the owner of the instant land, at that time, offered it to the general public for use on the grounds that it was written on the old land cadastre on the mother’s land in this case, and there was no submission of data on the process of the construction, purpose of providing roads, etc.

B) There is no evidence suggesting that at the time when the instant land was provided as a road or thereafter, the Joseon General or the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) took lawful procedures for acquiring the instant land as public property or occupied the instant land with the owner’s consent to use.

C) Since the land of this case was farmland, it is still adjacent to the existing road, and it is not necessary to newly establish a road, and even from the perspective of efficient use and profit-making of farmland, it is difficult to view that there was a road in the form of dividing the farmland into both sides and passing through the road. Moreover, there is no circumstance that the owner has secured and increased the utility value of the adjoining land due to the use of the land of this case as the road.

D) The instant land is a form connected by the owner in the same width as each other AF and AG land, and the said land was divided from each mother land on November 25, 193, and at the same time the land category was changed to “road” at the same time. In light of this, the possibility that these land were divided from the mother land on its own authority by the competent authorities, such as the Joseon General and Germany, and was established as a road and used for public traffic cannot be excluded.

D. Examining these circumstances in light of the legal principles as seen earlier, solely based on the circumstances indicated in the record, it cannot be deemed that the land owner’s own provision of the instant land as a road and granting the right to free access to neighboring residents or the general public, thereby falling under the case where the exclusive and exclusive right to use and benefit from the instant land cannot be exercised.

Nevertheless, the lower court determined that the owner’s exclusive, exclusive, and beneficial rights to the instant land was restricted on the sole basis of the circumstances indicated in its holding without specifically examining the details and process of the provision of the instant land to the public for use, whether or not the owner’s interests or benefits arising from the provision of the land, etc.

2. As to the Defendant’s grounds of appeal, where the State or a local government proves that the State or a local government occupied the land without a specific title, such as taking the procedure for acquiring public property, such as its own shares or donation, or incorporating the private land into the reservoir site with the consent of its owners, etc., it shall be deemed that the presumption of autonomous possession is broken (see, e.g., Supreme Court Decision 2000Da64472, Mar. 27, 2001). Furthermore, the State or a local government’s official record at the time of commencement of occupancy or use of the relevant land is preserved without loss and without any specific entry supporting the acquisition of ownership of the State or a local government. It is tenable that the State or a local government merely asserted that it commenced possession or use of the land from the time when its land category was changed to a road, ditch, bank, river, etc., and it did not properly state the time, and that there was no possibility of the acquisition or use of the land for public purposes, such as purchase or donation, etc., at the time of 2019.

The lower court determined that it is difficult to view that the Defendant occupied and used the instant land with the intent to own it, and rejected the Defendant’s claim for the completion of the statute of limitations for acquisition of possession, since the Defendant was deemed to have known or could have known the existence of another owner of the instant land in the course of

Examining the reasoning and record of the lower judgment in light of the aforementioned legal doctrine, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the bounds of the principle of pleading or the principle of free evaluation of evidence, or by misapprehending the legal doctrine on the presumption of possession with autonomy, thereby adversely affecting the conclusion of the judgment.

Supreme Court Decision 2010Da94731, 94748 Decided March 27, 2014 cited in the ground of appeal is different, and thus, cannot be invoked in the instant case.

3. Therefore, the part of the judgment of the court below regarding the principal lawsuit shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The defendant's appeal as to the counterclaim shall be dismissed, and the costs of appeal as to the counterclaim shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok

A person shall be appointed.