토지 소유자의 배타적 사용·수익권 행사 제한 법리에 관한 고찰 - 대법원 2024. 2. 15. 선고 2023다295442 판결을 중심으로 -

Abstract

The Legal Principles of waiver of exclusive use and benefit rights is that if a landowner voluntarily provides his or her land as a road for the general public, the owner's exercise of the exclusive use and benefit rights for that land is restricted. However, this legal principles has been criticized for its problems such as inconsistent with the Korean legal system and infringement of individual property rights guaranteed by the constitution. The subject judgment clarifies the meaning of restrictions on the exercise of exclusive use and benifit rights of land, and presents requirements including specific criteria for determining whether the exercise of exclusive use and profit rights is restricted. In particular, the subject judgment is meaningful in that it protects the property rights of landowners by requiring the other party to prove that they have met the requirements for such exercise restrictions. By comprehensively reviewing the contents of the subject judgment, the problems with the existing legal principles of waiver of exclusive use and benefit rights and the newly proposed alternatives, the principles of "restriction of exercise" was proposed instead of ‘waiver’ of exclusive use and benefit rights. This legal principle distinguishes between the right to use and the right to benefit among the landowner's ownership rights. If the right to use is restricted, the landowner cannot exercise a real rights claim, but if the right to benefit is restricted, the right to claim the return of unjust enrichment can be exercised in principle. In this way, the property rights of the landowner are protected. Since the first ruling on the legal principles of waiver of exclusive use and benefit rights, the current state of national finance and public consciousness have changed incomparably 50 years later. Therefore, it is necessary to protect individual property rights through the state's active compensation policy rather than relieving private rights in consideration of decades of personal sacrifice.