2. The costs of appeal shall be borne by the Defendant.

The defendant shall pay to the plaintiff 38,136,358 won with 5% interest per annum from November 8, 2005 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The reasoning for this Court’s explanation concerning this case is as follows, in addition to adding the following judgments to the new arguments made by the defendant in the trial, it is consistent with the reasoning of the judgment of the court of first instance. Therefore, it is acceptable to accept this as it is in accordance with the main sentence of Article

2. Determination on new arguments

A. The assertion

On October 29, 1996, the Defendant and the Plaintiff-affiliated Office entered into an exchange agreement (hereinafter “instant exchange agreement”) on the mutual management exchange between the instant land and the Defendant-managed elementary school site, which was used as a railroad site, and pursuant to this exchange agreement, transferred the site of ○ elementary school without compensation to the Korea Railroad. < Amended by Act No. 547, Dec. 17, 1997>

Therefore, although the Plaintiff was obligated to transfer the instant land to the Defendant pursuant to the instant exchange agreement, it constitutes an abuse of rights to claim the return of unjust enrichment from the use of the instant land to the Defendant.

In addition, even if the above exchange agreement is not acknowledged, the defendant requested the Korea Railroad to sell the land of this case to the defendant in around 1994 and accordingly, the Korea Railroad Agency sent a reply to the defendant that the land of this case is scheduled to be sold to the defendant in accordance with the "Additional Management Plan" or the "Plan for Change of State Property". Although the defendant had a trust that the plaintiff would be legally able to purchase the land of this case and use the land of this case, claiming the return of unjust enrichment against the principle of trust and good faith

B. Determination

1) First, as to whether there was an agreement between the Plaintiff and the Defendant on the instant exchange, each statement of health class Nos. 2 and 3 (including each number), alone, is insufficient to acknowledge that there was an agreement between the Plaintiff and the Defendant on the instant exchange, and there is no other evidence to acknowledge it.

Therefore, the defendant's assertion of abuse of rights based on the instant exchange agreement is without merit.

2) Next, we examine whether claiming for restitution of unjust enrichment on the instant land constitutes an unjust exercise of rights contrary to the principle of good faith, even though the Plaintiff consulted with the Defendant on the sale and purchase of the instant land.

The mere fact that trust was formed between the parties with respect to the conclusion of a sales contract, such trust is limited to the trust that the parties would normally perform their obligations under the contract, and that there was an agreement on the conclusion of a sales contract or the conclusion of a sales contract, does not necessarily mean that the seller would not exercise his/her rights on the subject matter of sale against the buyer.

In particular, in the sale of real estate, unless there is a special agreement between the parties that the buyer should use the land before the transfer registration under the sale contract is made, the seller can use or benefit from the real estate which is the object of the sale as the owner and claim the return of the unjust enrichment against the third party by means of use or profit, and the third party does not change as the other party to the transaction agreement.

Therefore, in this case where there is no evidence to acknowledge that there was an agreement between the Plaintiff and the Defendant to permit the Defendant to use and benefit from the instant land until the completion of the contract and the fulfillment of its obligations, the Defendant’s trust that the Defendant would have to use the instant land free of charge pursuant to the trade agreement on the instant land cannot be deemed as worthy of protection. Ultimately, the Defendant’s assertion regarding the Defendant’s unfair exercise of rights premised on the trust that the Defendant is able to use the instant land free

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Long-line (Presiding Judge) Kim Young-chul