토지소유자의 배타적 사용·수익권 행사의 제한에 관한 보완법리의 검토 - 대상 판결 : 대법원 2024. 2. 15. 선고 2023다295442 판결 -

The legal doctrine established by the Supreme Court over the past decades concerning a landowner's waiver of the exclusive right to use and profit has acquired a quasi-real property nature through the 2019 en banc decision, extending the restriction’s effect to subsequent transferees. However, the 2024 Subject Decision marked a significant turning point by designating this doctrine as an exceptional rule restricting a landowner's rights, and explicitly imposing the burden of proof on the local government asserting the restriction, thereby enhancing property rights protection. Given this legal shift, it is necessary to thoroughly examine the doctrine's legal basis, its constitutionality, and the propriety of allocating the burden of proof. The Supreme Court currently derives the legal basis for the restriction from the Principle of Good Faith, specifically the doctrine of estoppel. This reasoning suggests that a landowner's subsequent claims for unjust enrichment or land repossession are contrary to good faith, given their prior conduct of tacitly permitting public use. However, this approach has fundamental limitations. First, while the Principle of Good Faith is a general clause to be applied only exceptionally and supplementary, using it as a basis to fundamentally restrict the essential content of ownership is criticized as an evasion into a general clause. Second, because the restriction functions as a quasi-real property restriction extending to subsequent transferees, it contradicts the Principle of Numerus Clausus under the Civil Act. Since the Supreme Court has consistently ruled that the doctrine of estoppel cannot apply to actions violating mandatory rules, using the Principle of Good Faith to reject the exercise of ownership rights lacks coherence within the legal system. Therefore, the only viable basis to accommodate public demand without infringing upon the essence of ownership is the Prohibition of Abuse of Rights under the Civil Act. Restricting a landowner's exclusive right to use and profit directly concerns the property rights guaranteed by the Constitution. The Constitution mandates just compensation for the eminent domain, use, or restriction of property for public necessity. Allowing private land to be permanently used as a de facto road without due compensation constitutes a special sacrifice exceeding the social obligations normally tolerated by landowners. The 2024 Subject Decision's emphasis that this doctrine must be applied "cautiously and strictly in light of the Constitution and the principle of the rule of law in administration" reflects judicial recognition of the constitutional threat posed by this doctrine. From a procedural perspective, according to the legal requirements classification theory, the fact of 'restriction of the exclusive right to use and profit' is a defense that must be proven by the defendant to defeat the plaintiff’s claim for unjust enrichment. The Subject Decision explicitly ruled that "the party asserting the restriction of the exclusive right to use and profit bears the burden of proof". This ruling not only clarifies the procedural principle but also powerfully reinforces the view that the doctrine is an exceptional rule in procedural law, compelling local governments to strictly and concretely prove the conditions for restriction. In conclusion, while the doctrine originated from policy needs, it continuously clashes with the modern Civil Code system and the constitutional principle of property rights protection. Its legal basis should be limited to an exceptional application under the Prohibition of Abuse of Rights. The 2024 Subject Decision is a reasonable effort to mitigate these issues by emphasizing strictness and reallocating the burden of proof. Ultimately, it is believed that legislative supplementation is necessary to ensure just compensation is provided for land whose private utility has been extinguished, through formal public law procedures such as eminent domain.