Where private land is actually used as a road, the standard for determining whether the landowner may be deemed to have granted the right of free traffic or given up the right of use and benefit.

Articles 211 and 741 of the Civil Act

Supreme Court Decision 88Meu16997 Decided July 11, 1989 (Gong1989, 1218) Supreme Court Decision 2006Da11708 Decided December 10, 2009

Plaintiff

Hyeong-gun (Law Firm Sejong, Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2012Na7473 decided December 7, 2012

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

The grounds of appeal are examined.

In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or gives a waiver of exclusive and exclusive rights to use the land, it shall be determined by comprehensively taking into account the following: (a) the circumstance or holding period of the ownership of the land; (b) the details and scale of the sale of the remaining land in installments; (c) the location and nature of the land to be used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the degree of contributing to the land for the effective use and profit-making of the remaining land partitioned and sold (see Supreme Court Decisions 88Da16997, Jul. 11, 1989; 2006Da11708, Dec. 10, 2009).

The lower court, on March 30, 2009, held that the Governor of Gyeonggi-do, on the part of the Plaintiff’s Gyeonggi-do, was obligated to return unjust enrichment from the possession and use of the instant land to the Plaintiff, who is the owner of the instant land, on the ground that the instant land was incorporated into a road zone by publicly notifying the determination of the road zone as prescribed by Article 209-5040 of the Notice of the Second Office of Gyeonggi-do, as to the land of this case (number 1 omitted), and thus, the lower court rejected the Defendant’s assertion on the grounds that there was no evidence to acknowledge the Defendant’s assertion that the Plaintiff renounced the exclusive right to use and benefit from the instant land.

However, the lower court’s rejection of the Defendant’s assertion on the waiver of exclusive right to use is difficult to accept for the following reasons.

According to the records, the Plaintiff: (a) purchased a forest lot number of 5,131 square meters (hereinafter “land number 2 omitted) on January 20, 206; (b) on the same 7-year land number as the Defendant’s land number; (c) on the same 6-year land number, the Plaintiff filed an application with the Defendant for permission to convert the same 8-year land into the same 6-year land number; (d) on the same 7-year land number; (e) on the same 6-year land number, the part of the said land was used as a road with a width of 2 to 3-3 square meters (hereinafter “road”); and (e) on the same 6-year land number, the Plaintiff filed an application with the Defendant for permission to divert the same 8-year land number on the same 6-year land number; and (e) on the same 6-year forest land number omitted for the purpose of using the same 6-year land on the same 6-year land number; and (e) on the same 26-year forest land number omitted.

In light of the above facts in light of the legal principles as seen earlier, the instant land is almost the only way for the Plaintiff to contribute to the portion of the land disposed of by dividing it to others, and it appears that the Plaintiff had to provide the instant land as a passage to others. In fact, the Plaintiff prepared a written consent for land use stating the purport to provide the instant land as a road for many unspecified persons’ passage, and it appears that the utility value of the instant land could only have been secured by using the instant land as a passage. Therefore, there is a lot of room to deem that the Plaintiff renounced its exclusive and exclusive use right by using the instant land prior to dividing it as a housing site or by providing it as a passage to other persons for the purpose of disposing of it by dividing it into a public road.

Nevertheless, the lower court rejected the Defendant’s assertion on the grounds as indicated in its holding without sufficiently examining the grounds that the Plaintiff purchased the land before subdivision (number 2 omitted) and applied for permission for conversion, the developments leading up to the subdivision and sale of the land before subdivision, and the relationship with the land adjacent thereto, etc.

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 Kim Yong-deok (Presiding Justice)