2010Da11606 Removal, etc. of roads

2010Da11613 (Consolidation) Unlawful gains

Plaintiff

Law Firm Barun

Attorneys Park Jae-chul et al.

Attorney Kim J-il, Counsel for the plaintiff-appellant

Defendant 1 and one other

[Defendant-Appellant] Plaintiff 1

[Defendant-Appellee] Plaintiff 1 and 3 others

Incheon District Court Decision 2008Na20904, 2008Na20911 (Consolidation) Decided December 24, 2009

Judgment

July 12, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A boundary restoration survey conducted to restore a boundary on the cadastral map as a matter of whether the boundary is invaded or not, shall be conducted by the method of survey as at the time that the boundary is registered in the cadastral map, and the cadastral control point or base point at the time of the survey shall be the survey control point (see, e.g., Supreme Court Decisions 192Da47359, Feb. 8, 1994; 2008Da5530, May 29, 2008): Provided, That no land survey control point and its survey control point at the time of registration shall be identified as the cadastral control point or the point where the cadastral control point is the point;

Where the ground table table surveying finds or fails to find a cadastral control point in the vicinity of the land, it is inevitable to establish a new cadastral control point and conduct a boundary restoration surveying based on it.

2. Review of the reasoning and records of the lower judgment and the first instance judgment cited by the lower court reveals the following facts.

A. The Gyeonggi-do cadastral map was registered in the cadastral map around December 17, 1910 and around June 191, the land survey method at the time of registration and the point at which the survey control point at the time of registration is a cadastral control point or a cadastral control point is a cadastral control point.

B. The boundary at issue in the instant case (hereinafter referred to as the “instant boundary”) was the boundary between 86 square meters of the above 86 land and 86 square meters of the above 86 land divided from the above 86 land, around November 1993, and 86-3 square meters of the warehouse site and 86,074 square meters of the above 65 forest, which were divided from the above 86 land, and 86,074 square meters of registration conversion and divided from the above 65 forest. The boundary was the same as the cadastral boundary at the time of the first registration.

C. Meanwhile, on July 13, 1994, the Korea Cadastral Survey Corporation requested 86-8 land boundary restoration surveying from Defendant 1, who is the owner of the said land before the said subdivision, 86-8 land before the said subdivision, and conducted a land boundary restoration surveying on July 13, 1994. In the process, the Korea Cadastral Survey Corporation did not verify the method of the first registration of the instant boundary and the survey datum point at the time of the first registration of the instant boundary, and performed the boundary restoration by using a plane table surveying method.

D. Based on the aforementioned restored boundary, Defendant 1 opened a road of six meters wide (hereinafter referred to as “instant road”) in the direction of land 86 - 8 meters prior to the said subdivision, and divided the instant road into 86 - 13 road and 944 square meters on December 26, 1994. As a result, the instant boundary became the boundary between the said 86-3 land and the said 86-13 land.

E. However, as large-scale housing site development projects were conducted in the vicinity of the above land after the above boundary restoration surveying, most of the flag points or cadastral map root points used as survey control points have been lost, and the Korea Cadastral Survey Corporation established new cadastral map supplementary points in the vicinity of the above land through the basic survey around January 2007.

F. On January 208, the first instance court of this case designated the non-party, who is an employee of the Korea Cadastral Survey Corporation, as an appraiser, and ordered the appraisal of the boundary restoration survey and current status survey of this case. The non-party conducted a boundary restoration survey based on the cadastral supplementary points newly installed in the vicinity of the above land, and surveyed the current status of the road of this case. As a result, it was confirmed that the road of this case, as shown in the annexed drawing No. 1 of the judgment of the court below, has invaded the above 86-3 land by 10

3. Examining the facts above in light of the legal principles as seen earlier, since the boundary of this case remains intact without changing the current status at the time of the first registration in the cadastral map around June 191, 191, the boundary restoration surveying for restoring the boundary of this case to the real land should be based on the method of surveying and the survey control point at the time of the first registration of the said 86 land. However, as long as the said 86 land at the time of the first registration and the survey control point at the time of the first registration are unknown, the boundary of this case cannot be restored by finding the cadastral control point in the adjacent cadastral control point or by installing a new cadastral control point on the basis thereof.

Therefore, the non-party of the first instance court’s restoration of the boundary of this case based on the cadastral map root points newly installed in the vicinity of the above land is lawful unless there are other special circumstances, and the result of the boundary restoration survey and the current status survey can be a flexible evidence as to the fact that the road of this case is invaded by the above 86-3 land.

Nevertheless, on July 13, 1994, the court below rejected the plaintiff's assertion that the road of this case infringes on the above 86-3 land, on the ground that the boundary of reality formed on the basis of the boundary that was restored by the boundary restoration surveying on July 13, 1994, which cannot be seen as a lawful boundary restoration surveying on the boundary of this case, is consistent with the cadastral boundary, and that the boundary restoration surveying of the above non-party is not in accordance with the cadastral boundary method and survey control point at the time of the registration of the boundary of this case, and thus, it cannot be employed as a result of such surveying. Ultimately, the court below erred by misapprehending the legal principles on boundary restoration, which affected the conclusion of the judgment, and the appeal

4. 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 Lee Sang-hoon

Jeju High Court Justice Yang Chang-soo

Justices Kim Yong-deok