이른바 배타적 사용수익권 포기 법리 再論 -배병일, “사실상 도로에 관한 배타적 사용수익권의 포기”, 「사법」 제34호(사법발전재단, 2015.12)의 의미 분석-

The purpose of this article is to analyze (review) the meaning and limitations of the Professor Bae’s thesis “Waiver of Right to an Exclusive Use and Benefit as to De Facto Road” (hereinafter referred to as 'the subject thesis') in order to commemorate the retirement of Professor Bae. The main discussion of this article is summarized and summarized as follows. First, although it is regrettable that the subject thesis did not explicitly advocate for the abolition of the legal principles of Supreme Court's renunciation of exclusive utilization beneficiary right for de facto roadway (hereinafter referred to as the 'subject principle'), it is reasonable that 'the subject thesis' seeks the legal basis for the subject matter principle in the principle of good faith. Second, although it is hard to agree with the view that 'the subject thesis' does not allow landowners to make a claim for the return of unreasonable profits against local governments, etc. under the principle of prohibition of contradictory acts, it is reasonable to view that 'the subject thesis' should not apply the subject matter principle to claims for property rights. Third, it is reasonable to view that the waiver does not have any effect on a specific successor because of the effect of the waiver of the exclusive use beneficiary rights in 'the subject thesis'. However, it is hard to agree with the view that the principle of estoppel applies when the buyer's malice is presumed.