토지소유자의 배타적 사용수익권 포기 - 대법원 2019. 1. 24. 선고 2016다264556 전원합의체 판결 -

Abstract

The Legal Principles of Abandoning the Exclusive Right to Use and Profit has been developed from the practical needs of landowners and stakeholders to elicit specific feasibility, and this law has been developed by the Supreme Court over a long period of time and can still be recognized as valid now by the Supreme Court multiple opinions. But the Legal Principles of Abandoning the Exclusive Right to Use and Profit is difficult to be accepted by the legal system of Korea, and this jurisprudence restricts the ownership of real property and the event without legal grounds, and is placed in the basic principle of civil law on property rights by the Supreme Court minority opinions. The Supreme Court ruled that the request for the removal of the rain water pipe and the return of the unfair advantage equivalent to the chime due to the partial land use would be unacceptable. But As a result of comparing the ownership of the landowner with the public interest, it is understandable that the rejection of the exercise of land ownership, ie the removal of the rain water pipe, It is unreasonable to deny the return claim. In other words, in relation to the constitutional content and the existing Supreme Court precedent, even if the Supreme Court rejects the request for removal of a non-rain water pipe for a new ordinance or public interest reason, the claim for unjust gain should be cited. The Legal Principles of Abandoning the Exclusive Right to Use and Profit should be discarded because it is unfair. And the Supreme Court multiple opinions denies even the request for the return of unfair advantage is considered to be unacceptable as it is beyond the limit of ownership by the Constitution or the law. Therefore, it is desirable to abolish the Legal Principles of Abandoning the Exclusive Right to Use and Profit, and to solve the problem through the indication of ‘proprietary rights nonuser declaration’ or ‘interpretation of the law act’ instead.