In a case where the State, without permission, uses land owned by a private person as a road and a site for soundproof walls on an expressway, whether the landowner may seek removal of the soundproof walls and delivery of the land based on the ownership (negative)

In a case where the State uses land owned by a private person without permission as the side and soundproof walls of an expressway, the above side and soundproof walls fall under the site and things constituting the road on which no private right can be exercised under Article 5 of the Road Act, and thus, the landowner cannot seek removal of the soundproof walls and delivery of the land based on the ownership, separate from the claim for damages or the claim for return of unjust enrichment, which caused tort against the State.

Article 5 of the Road Act, Articles 213, 214, 741, and 750 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

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[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Han-soo et al., Counsel for plaintiff-appellant)

Republic of Korea (Attorney Jin-sik et al., Counsel for defendant-appellant)

Defendant (Counterclaim Plaintiff)

may 21, 1999

Chuncheon District Court Decision 96Da10580 delivered on July 1, 1998 (main office), 97Gadan238 delivered on July 1, 199

1. Of the judgment below, the part concerning the counterclaim is revoked, and the defendant-Counterclaim plaintiff's counterclaim is dismissed.

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

3. The total cost of a lawsuit shall be borne by the plaintiff (Counterclaim defendant) and the remainder shall be borne by the plaintiff (Counterclaim plaintiff).

본소 : 피고(반소원고, 이하 피고라고만 한다)는 원고(반소피고, 이하 원고라고만 한다)에게 동해시 (주소 생략) 전 949㎡ 중 별지도면 표시 ㄱ, ㄴ, ㅋ, ㅊ, ㅇ, ㅈ, ㄱ 의 각 점을 순차로 연결한 선내(가)부분 149㎡(이하 이 사건 토지부분이라 한다)에 관하여 1995. 9. 30. 취득시효 완성을 원인으로 한 소유권이전등기절차를 이행하라.

반소 : 원고는 피고에게, 동해시 (주소 생략) 전 949㎡ 중 별지도면 표시 ㄴ, ㅋ, ㅊ, ㅇ의 각 점을 순차로 연결한 선 지상에 설치된 방음벽을 철거하고, 이 사건 토지부분을 인도하라.

As to the principal lawsuit: The part of the judgment below against the plaintiff shall be revoked. The defendant shall implement the procedure for the registration of ownership transfer in the purport of the principal lawsuit to the plaintiff.

With respect to a counterclaim: Paragraph (1) of this Article.

1. Basic facts

A. On October 1, 1975, the construction division notice No. 165 of the same sea highway (Korean national expressway No. 5) was issued, the Plaintiff determined and publicly announced the road zone of the same sea highway (Korean national expressway No. 5) from 26-8 to 185-4 of the Dong-si in the Dong-si in the Dong-si. The Plaintiff opened the said expressway on October 14, 1975, and then offered it for the use of the general public until now.

나. 강릉시 (주소 생략) 전 949㎡는 피고의 소유로서 처음에는 위 토지 전부가 위 고속도로의 경계석 바깥쪽에 위치하고 있었는데, 원고가 1996. 5. 13.부터 같은 해 11. 30.까지 사이에 위 토지 중 별지도면 표시 ㄴ, ㅋ, ㅊ, ㅇ의 각 점을 순차로 연결한 선지상에 방음벽을 설치한 이후로는 이 사건 토지부분은 위 고속도로의 방음벽 및 갓길부지로 사용되고 있다.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 3, 6, Gap evidence Nos. 2-1, the result of on-site inspection by the court of original judgment, the result of the survey appraisal by the non-party to the original judgment, the whole purport of the pleading

2. Determination on the main claim

The plaintiff is the cause of the principal claim, as from October 1, 1975, the land portion of this case from October 1, 1975, which was determined and announced as a road zone for the East Sea Highway, and the acquisition by prescription was completed on September 30, 1995, by occupying the land portion of this case as the side or the legal side of the above expressway for twenty years and occupying it in peace and public performance with the intention to own it for twenty years. Thus, the defendant asserts that the defendant is liable to implement the procedure for the transfer registration of ownership on September 30, 1995 with respect to the land portion of this case on the ground that the acquisition by prescription completed on September 30, 1995. Thus, there is no evidence to prove that the plaintiff has occupied the land portion of this case on the side or on the legal side of

3. Judgment on the counterclaim

The defendant is a cause for a counterclaim. Since the plaintiff installed soundproof walls on the land portion of this case owned by the defendant and occupied the land portion of this case as the site for the above expressway, the plaintiff asserts that he had the obligation to remove the soundproof walls and deliver the land portion of this case to the defendant, so it is difficult to see the fact that the plaintiff occupies the land portion of this case as the site for the above expressway, even though it is recognized that the plaintiff possessed the land portion of this case as the site for the above expressway, since the land portion of this case and soundproof walls of this case constitute the site and article which constitute a road for which no private right can be exercised under Article 5 of the Road Act, the defendant cannot seek removal of the soundproof walls and delivery of the land portion of this case based on the ownership of the land portion of this case, separate from the claim for damages or the claim for restitution of unjust enrichment on the ground of tort against the plaintiff.

4. Conclusion

Therefore, both the plaintiff's principal claim and the defendant's counterclaim are dismissed as they are without merit. Since the part relating to the counterclaim in the judgment of the court below is unfair as it is concluded differently, the defendant's counterclaim is revoked, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

June 4, 1999

Judges Choi Jin-ju (Presiding Judge)

[Attachment Form Omission (Attachment 127-1, 1200, 1200, annexed to the East Sea)]