[손실보상청구사건][고집1977민(2),216]
Where a local government uses land owned by a private person designated as a site for a road by the public notice of the Minister of Construction and Transportation, the volume of unjust enrichment;
Even if the land category was previously set up as a military operation road, and the land category was changed to a road, and is offered for the passage of the general public, and is being used in public as a road, if the local government continues to occupy and use it as a road only with urban planning determination as a site planned for the construction of a road according to the public notice of the Minister of Construction and Transportation without going through lawful expropriation or purchase procedures under the Urban Planning Act or the Land Readjustment and Rearrangement Projects Act, barring any special circumstance, the profit of the rent party is gained, and thus, the owner caused damage to the same amount, and thus,
Article 741 of the Civil Act
November 22, 197 (Supreme Court Decision 77Da1592 delivered on March 20, 197, 72Da2396 delivered on March 20, 197 (Supreme Court Decision 10420 delivered on March 20, 197, Supreme Court Decision 79(2)1837 of the Road Act)
Plaintiff
Gwangju City
Gwangju District Court of the first instance (75Gahap198)
The judgment of the first instance shall be revoked.
The defendant shall pay to the plaintiff 1,68,000 won with an annual interest rate of 5 percent from June 16, 1977 to the full payment.
All the costs of lawsuit shall be borne by the defendant.
A provisional execution may be effected only under the above paragraph (2).
(Change in the trial)
The plaintiff's main claim is filed with the same judgment as the main claim Nos. 2, 3, and 4, and the defendant shall pay to the plaintiff 2,110,000 won with the amount equivalent to five percent per annum from June 26, 1968 to the full payment.
If Gap evidence Nos. 1, 2, 4, and 5 without dispute over its establishment gather the entire purport of the party's pleading, the land category of 2-1, 211, 211, Seo-gu, Seo-gu, Gwangju (hereinafter "the land of this case") was originally owned by the plaintiff, but is officially used as a road after the land category was established as a military operation around May 30, 1952, and the urban planning was determined by the Minister of Construction and Transportation's announcement as of June 25, 1968, but the city planning was determined as a planned road construction site as of June 385, 196, but the land of this case was occupied and used as a public road until now without following lawful expropriation or purchase procedures under the Urban Planning Act or the Land Readjustment and Rearrangement Projects Act, etc.
Therefore, the defendant, as long as there is no evidence of assertion as to the possessory right of this case, possession and use of this case's land. Therefore, the defendant has a duty to return unjust enrichment to the plaintiff who is the owner of this case.
However, the defendant's attorney asserted that the land of this case was acquired by prescription on June 1, 1972, since the land category of this case was changed from May 30, 1952 to the road and it was occupied in peace and openly as owner's intention from May 30, 1952. Thus, as seen above, it can be recognized that the defendant did not follow due procedures under the Urban Planning Act or the Land Readjustment Projects Act in occupying this case's land as a road. Thus, it cannot be viewed that the defendant occupied this case's land as owner's intention (it is presumed that the land category was changed simply to the road, and it cannot be presumed that the defendant occupied it as owner's intention) and there is no reason to believe that this claim is unreasonable because the defendant did not follow the procedure of the Compensation Council under the State Compensation Act before the plaintiff filed this claim. However, the defendant's claim for this case's claim is not a tort claim, but it is not reasonable to accept this claim as the defendant's claim for unjust enrichment.
Therefore, it is clear that the rent per month from February 16, 1974 to June 15, 1977 is 1,68,000 won for 40 months, as the plaintiff seeks, and therefore, the defendant is obliged to pay the above gold 1,68,00 won and the amount at the rate of 5 percent from June 16, 197 to the full payment date.
In the end, the plaintiff's claim for unjust enrichment against the party in charge of this case should be accepted as it is for the reason that it is unnecessary to examine the above, and the original judgment which differs from this result is revoked unfairly, and this appeal is accepted as reasonable, and the costs of appeal shall be borne by the defendant in both the first and second trials, and the provisional execution declaration shall be attached thereto, and it is so decided as per Disposition.
Judges Noh Byung-man (Presiding Judge)