배타적 사용수익권 행사의 제한 법리에 대한 검토 - 대법원 2019. 1. 24. 선고 2016다264556 전원합의체 판결 -

The legal principle of abandonment of right to exclusive use and benefit has a problem that it goes against the nature of ownership and violates Numerus clausus of property rights and principle of public disclosure. In addition, it interprets the intention of the land owner too arbitrarily and deliberately, and may violate Article 23, Paragraph 3 of the Constitution and the rule of law administration. The Korean Supreme Court Decision used the term “restriction on the exercise” of exclusive use and benefit right instead of the term “abandonment” and accepted the contents of judgments that took a critical stance on the legal principle of abandonment of right to exclusive use and benefit. However, even if this legal principle is applied it results in limiting the rights of the land owner, so a legal grounds are still needed. Nor can the fact that the landowner has benefited justify the foreclosure of the exercise of ownership. It is desirable to discard the legal principle of abandonment of right to exclusive use and benefit and the legal principle of restriction on the exercise of right to exclusive use and profit. The explicit provisions of laws such as the Civil Code and the legal principles based on them should be applied. A contract may be established when there is an agreement between the owner of the land and the user of the land. If it is difficult to establish a contract, it can be seen that the land owner has expressed an intention not to exercise ownership in relation to the person who uses the land for free. And as long as the state of land being used by the general public continues, it should be considered that the binding nature of the expression of intention continues in accordance with the principle of good faith, especially the principle of prohibition of contradictory acts. As a concrete effect, it will be difficult to recognize the exercise of the land owner’s claim based on ownership, that is, the right to claim the return of the property or the right to claim the exclusion of disturbance to the property. However, since the state or local governments are obliged to pay fair compensation in the case of expropriation, use or restriction of a private person’s land, the exercise of the owner’s right to claim for return of unjust enrichment against the state or local governments should be allowed. Since the land owner’s expression of intention not to exercise ownership has in personam effect, the effect of the expression of intention cannot be deemed to be succeeded to a specific successor. Therefore, the exercise of ownership by a specific successor should be allowed in principle. However, if the land is being used by the general public, the exercise of the real right claim may be limited by the social constraints inherent in ownership, depending on the case.