1. Where a private land is naturally occurring or is classified into a proposed road site and actually used as a road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or waives exclusive and exclusive rights to use and profit from the land, it shall be determined by comprehensively taking into account the following: (a) the circumstance and period he/she owns the land; (b) the developments and scale of the sale of the remaining land in installments; (c) the location and nature of the land used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the degree of contribution to the land in question for the effective use and profit-making of the remaining land partitioned and sold (see, e.g., Supreme Court Decisions 88Meu1697, Jul. 11, 1989; 2010Da47681, Nov. 25, 2010).

On the other hand, it is reasonable to view that the original owner of the land has acquired the ownership of the land by auction, sale, payment in kind, etc. to allow the situation that the original owner of the land provides a part of the land as a site for free, and renounces the exclusive and exclusive right to use the land, and the residents have specified the ownership of the land after the land was passed through without compensation. Therefore, it is reasonable to deem that the person who acquired the ownership of the land by auction, sale, payment in kind, etc., was aware of such circumstance at least

Therefore, even if a local government occupies and manages part of the land as a road, no damage may be caused to a specific successor, and since a local government does not gain any profit therefrom, a specific successor cannot make a claim for return of unjust enrichment (see, e.g., Supreme Court Decisions 97Da52844, May 8, 1998; 2010Da84703, May 26, 201).

2. The court below, citing the judgment of the court of first instance, rejected the defendant's defense that the plaintiff, who is a specific successor to the land of this case, cannot file a claim for return of unjust enrichment against the defendant, who is a local government, since the net F, the original owner of Pyeongtaek-si B, 496 square meters (hereinafter "the land of this case"), renounced exclusive use rights for the land of this case. Thus, the court below rejected the defendant's defense on the ground that there is insufficient evidence to acknowledge that the deceased renounced exclusive use rights for the land of this case.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① From February 1967, the Deceased occupied the specific part of the G 1,123 of Pyeongtaek-gun of Gyeonggi-do (hereinafter referred to as “land before division”) and sold it to Nonparty V, S, AA, Q, W, etc. by specifying their respective possession parts.

② As the deceased was unable to register the division of the land before subdivision until the time when the cadastral map was destroyed due to the Korean War in 1982, the deceased completed the registration of ownership transfer at the proportion of shares equivalent to the purchaser’s purchase area among the land area before subdivision in convenience. Of the buyers, the registration of co-ownership transfer was completed for the same reason as in selling the specific part to others again.

③ Around April 20, 1978, the surrounding areas of the instant land was designated as a site for a road according to the urban planning decision on April 20, 1978, and Pyeongtaek-gun, in the late half of the 1970s, performed road packaging works on the instant land.

④ On September 28, 1983, the instant land was divided into the land before subdivision at the request of the Deceased, and the ratio of the instant land to the land before subdivision is about 13.36%. ⑤ The instant land is in the form of “1 in the direction of South and North Korea by abutting on the site sold by the Deceased to Nonparty V, etc.,” and its width is not fixed depending on the boundary of each building constructed on the adjoining land, and the boundary is inconsistent with the land designated and publicly announced as the site of a road according to the urban planning decision.

6. The part sold by the deceased to Nonparty V, etc. is located north and south, centering on the land in this case, and the part located north is the only passage through which the land in this case reaches a meritorious road.

7) On the instant land, the deceased was buried in the water supply and drainage officer necessary for the building constructed on each part sold to Nonparty V, etc.

8 The Deceased continuously sold the site surrounding the instant land after the completion of the road packing construction on the instant land, but there was no fact that he sold the instant land.

9) Nonparty AB who succeeded to 54.08 shares of 554.08 of the instant land around May 10, 1995, and Nonparty X, who purchased the said shares of land from AB around July 2, 2004, did not raise an objection to the Defendant, etc. or demand compensation or usage fees with respect to the use of the said land as a road for general public traffic for at least 30 years.

0. On June 4, 2008, the Plaintiff purchased 554.08 shares in the instant land through a voluntary auction.

B. Examining these circumstances in light of the legal principles as seen earlier, there is a lot of room to view that the deceased voluntarily renounced the right to exclusive and exclusive use of the instant land in order to increase the utility value of each site located on both sides of the instant land among the land before partition and sell it to a third party. If so, it is reasonable to view that the Plaintiff acquired the right to exclusive and exclusive use of the instant land after the residents became aware of the fact that the Plaintiff, who acquired the right to share of the instant land through voluntary auction after the land was allowed to use the instant land without compensation, bears the burden of restricting its use and profit. Thus, the Plaintiff cannot exercise the right to exclusive and exclusive use of the instant land. Nevertheless, the lower court determined otherwise solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of the right to use the land actually occupied by a local government and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is 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 Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee