[부당이득금][공1991.9.1.(903),2126]
(a) Where a local government provides a parcel of land commonly used for the passage of the general public as a result of providing the land as a passage for residents or the waiver or loss of the exclusive use right by allowing the passage of residents, whether the landowner's claim for return of unjust enrichment is made (negative);
(b) In selling a land owned by a landowner as a housing site, the case holding that if the land in dispute is almost the only passage for which the land in dispute can contribute to the contribution from the building in the housing site for sale and the remaining land in dispute cannot be divided and sold as a housing site, the right of free passage may be deemed to be granted to the residents of the dispute if it is possible to divide and sell the land;
A. If a local government has, with respect to the land which was actually being used by the general public, completed packing works, etc. by subsidizing a large portion of the expenses to the opportunity for the residents' self-help projects in which neighboring residents participate, and offered it to the public roads for public use in the general public, it shall be deemed that such land is under the possession and management of the local government from that time. However, if the land owner voluntarily provides it through the passage of the residents or as the owner renounces or loses the exclusive use right as the owner by permitting the passage of the residents, no loss may be caused to the land owner due to the possession of the local government, and thus,
(b) In selling the land owned by the landowner as a housing site, the case holding that if the land in dispute is almost the only passage through which the land in dispute can contribute to the contribution from the building of the housing site for sale and the remaining land in dispute cannot be divided and sold as a housing site, the right of free passage may be granted to the residents of the dispute if it is not possible to divide and sell the land;
Article 741 of the Civil Act
Supreme Court Decision 85Meu421 Decided August 13, 1985 (Gong1985, 1240), Supreme Court Decision 88Meu4482 Decided February 28, 1989 (Gong1989, 528), Supreme Court Decision 91Da110 Decided July 12, 1991 (Gong191, 2145)
[Plaintiff-Appellant] Park Hun-chul et al., Counsel for plaintiff-appellant
Attorney Seo-gu, Seoul Special Metropolitan City, Nam-gu, Counsel for the defendant-appellant
Daegu High Court Decision 90Na975 delivered on March 21, 1991
The part of the lower judgment against the Defendant shall be reversed.
The case shall be remanded to the Daegu High Court.
According to the reasoning of the judgment below, the court below determined, based on macrofics, that 909 square meters of the land of this case were part of the area of 5,866 square meters prior to the original subdivision ( Address 2 omitted) of the same Dong, Daegu-gu, which is the land of this case. On April 4, 1978, the Gyeongbuk-do publicly announced the portion of the land of this case as a site for a road under the Urban Planning Act but it has not yet been implemented but all of the above ( Address 2 omitted) acquired on July 14, 1978, the land of this case, which is the site for a road, was divided into 20 lots in order to use the remaining portion of the land as the site, and determined that from 1980, the land was actually occupied by the owners of the above 200 lots of land and the land was actually damaged by the residents of this case and the land was actually damaged by the residents of the above 1970 square meters since the completion of the construction work.
On the other hand, if the defendant, a local government, has already participated in the land which was actually being used for the general traffic from the past and completed packing works, etc. by supporting a substantial portion of the expenses, and re-confising the land for the public traffic, from that time, the above land shall be deemed under the possession and management of the defendant, even though the court below acknowledged that the plaintiff is under the possession and management of the defendant, if the plaintiff voluntarily provided it through the passage of the residents or allowed the passage of the residents, and the plaintiff has renounced or lost the exclusive use and profit right as the owner, it shall not be allowed to claim the return of unjust enrichment from the possession of the land. According to the records, the actual use of the land in this case includes the land in this case is almost the only way for the plaintiff to contribute to the building of 20 lots of the land in this case which the plaintiff sold, and even if the local government did not publicly notify it as the site for the road, if the plaintiff could not sell it as the site for the land in this case, it can not be viewed that the plaintiff had exclusive use and profit from the land in this case.
Therefore, the court below should decide whether the plaintiff provided the land of this case as a passage to a public road from the housing site by closely examining the plaintiff's acquisition of the land of this case, the process of dividing the land of this case, the sale of the land, the nature of the road, etc., and whether it can be seen that the plaintiff provided the land of this case as a passage to a public road. However, the court below erred by failing to exhaust all necessary deliberations, or by misapprehending the legal principles on unjust enrichment, which affected the conclusion of the judgment, since it points out this issue, since the land of this case had already been designated as a road site before the plaintiff's acquisition.
Therefore, the part of the judgment of the court below against the defendant shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)