토지소유자의 독점적･배타적인 사용･수익권 행사의 제한- 대법원 2019.1.24. 선고 2016다264556 판결 -

In a judicial precedent, a landowner’s claim for return of unfair profit against a local government is rejected for a reason that in the event that the landowner provided his/her owned land for public use, the exercise of landowner’s proprietary, exclusive use and beneficiary rights on applicable land is restricted. However, in the event that the state or local government possesses a private land, the virtual possession of the state or local government shall be deemed to be a fact acknowledged as a representation of intent for tacit acceptance or a representation of intent for acceptance when a landowner provided the land voluntarily for the installation of virtual roads or public drainage even if it has not passed the legal compensation procedure stipulated by the relevant laws and ordinances. Accordingly an ‘agreement of contributed acceptance’ or a ‘loan of use agreement’ may be deemed to exist between the state or local government and a landowner, and there is no need to invoke the legal principle as to the waiver of exclusive use and beneficiary rights to reject the landowner’s claim for return of unfair profit. In addition, according to the Supreme Court decision 2016da264556 judgement rendered on January 24, 2019, in the event that the exercise of landowner’s proprietary, exclusive use and beneficiary rights is restricted, the exercise of proprietary, exclusive use and beneficiary rights by an inheritor who inherited the land or a particular successor of the land is also restricted. However, since the exclusive use and beneficiary rights of a thing is the core power of ownership, the owner’s waiver of use and beneficiary power for owned articles in the relationship of credit with a third party, or the owner’s permanent waiver of use and beneficiary power erga omnes beyond the establishment of restriction on the exercise of use and beneficiary rights shall be deemed to be an actual creation of new real right not based on the laws, therefore it is not allowable. In the end, the landowner’s exercise of ownership including the use and beneficiary rights may be restricted only when there are express provisions in laws like the Civil Act and when the legal principle based thereupon may be applied, as seen in the event that real rights including the right of passing nearby land or the surface right, or a land use agreement in credit relationship including an agreement of contributed acceptance, a lease agreement, and a loan of use is established, or in the event that a landowner’s exercise of right is contrary to the principle of good faith and sincerity or corresponds to the abuse of right although the land is being used for nearby residents or general public. Therefore, the legal principle of the above judicial precedent with regard to the waiver of proprietary, exclusive use and beneficiary rights without a legal basis and contrary to the basic principle of the Civil Act on the real rights of real properties shall be discarded.