2. The defendant's remaining appeal is dismissed.

3. All of the first and second trials are five minutes of the costs of lawsuit and four others are assessed against the plaintiffs, and the remainder is assessed against the defendants.

The key issue of this case in the trial is whether it is reasonable to order the Defendant to return the entire unjust enrichment due to the possession of the land in this case, first, whether the Plaintiffs renounced exclusive rights to use and benefit from the part of the land owned by the Plaintiffs (hereinafter “the land in this case”).

Therefore, this decision focuses on the above part related to the above issue, and sees the corresponding part of the judgment of the court below in accordance with Article 390 of the Civil Procedure Act.

2. Whether the plaintiffs renounced their exclusive rights to use and benefit

The defendant asserts that the plaintiffs should be deemed to waive their exclusive rights to use and benefit from the land of this case by allowing the general public to pass through the land of this case.

However, it cannot be readily concluded that the owner of land has renounced his/her exclusive right to use and benefit from the land on the ground that he/she actually permitted the passage of the land to the road, and if a certain land is actually being used as a road for the traffic of the general public, if the owner of the land grants his/her own right to use and benefit from the land as a road, or if he/she appears to have given his/her exclusive right to use and benefit from the land to the neighboring residents or the general public, he/she shall carefully consider the circumstances and scale of his/her ownership of the land, the location and nature of the land used as the road, the relationship with the neighboring land to other neighboring land, the degree of contribution to the land for the effective use and benefit of the land (see Supreme Court Decision 97Da52844 delivered on May 8, 198, etc.). However, in light of the fact that the Plaintiffs continued to use the land on the ground of this case, the Plaintiffs were not able to provide the remainder of the land to the Defendant without any conflict with the urban planning line, the whole area of the land.

3. Whether it is reasonable to order the defendant to return the whole amount of unjust enrichment from the possession of the land in this case

The defendant asserts to the effect that it is not reasonable to order the defendant to return the whole amount of unjust enrichment due to the possession of the land of this case, since the defendant installs steel poles on the boundary line of the land of this case, opens the existing sidewalk block, opens the new sidewalk block, and installs new sidewalk block, the plaintiffs gain profits from other persons.

Therefore, in a case where the State or a local government orders the State or a local government to return unjust enrichment by occupying and managing a certain parcel of land as a de facto road, in light of various circumstances, such as the background leading up to the road, the circumstances leading up to the State or a local government to de facto control the road, and the benefits that the road owner gains due to the fact that the land becomes a road, the State or a local government is obliged to return unjust enrichment, such as ordinary cases, can be said to be mitigated when the State or a local government is deemed considerably unreasonable in light of the principle of good faith or the principle of equity.

However, in the case of Gap's Nos. 1, 2 and 3, Eul evidence Nos. 1 through 4, Eul evidence No. 1-2, Eul evidence No. 9-1 through 4, Eul evidence No. 11-5, Eul evidence No. 12, 13, and 14, and Eul evidence No. 15-1 through 4, and the whole purport of oral pleadings in the first instance trial, the plaintiffs were newly constructed on the land other than the land of this case by installing a new news block on the land of this case for their own use as access to each building of this case, Eul evidence Nos. 1 to 4, Eul evidence No. 2, Eul No. 2, and Eul evidence No. 15 to 9, the defendant constructed a new road on the land of this case, and installed a new road on the sidewalk No. 97 street No.

As seen above, the original plaintiffs offered the land of this case to the public for the passage of the general public, and thereafter, the defendant replaced the sidewalk block as part of the small residents accommodation project, there is no place where delivery is installed on other roads around the land of this case, and the defendant occupied and managed the land of this case so that the customers of the adjacent store to the land of this case can freely enter the store without interfering with vehicle traffic and free access to the store, and the plaintiffs who are the owners of the said store receive a lot of intangible profits. In light of the above facts, imposing the defendant the duty of return of unjust enrichment on the defendant is deemed to be remarkably unreasonable in light of the principle of good faith and equity, and thus, the defendant can reduce the unjust enrichment to be returned to the defendant.

Furthermore, in the case of this case, it is reasonable to limit the scope of unjust enrichment to 70% of the total amount to be returned by the defendant in light of the above facts.

Ultimately, this part of the defendant's argument is justified.

4. Scope of return of unjust gains;

A. Rent for the instant land: as shown in attached Tables 1 and 2 of the calculation sheet.

(b) Scope of the defendant's return: 70%

C. Amount to be returned by the defendant (as shown in attached Form 3)

(1) Plaintiff Park Jong-chul: 8,635,953 won

(2) The plaintiff's elective suit, Yang-hee, Yang-jin, Yang-hee: 692,101 won, respectively.

(3) Plaintiff Yang Jin-jin: 2,076,303 won

(4) Plaintiff-Appellant: 1,384,202 won

(5) Plaintiff’s new food: 6,114,495 won

(6) Plaintiff Jeong Jong-chul: 5,358,357 won

5. Conclusion

Therefore, the defendant, as unjust enrichment, shall be KRW 8,635,953 to the plaintiff Park Jong-man, KRW 692,101 per annum from July 14, 1997, which is the date of delivery of a copy of the complaint of this case, and KRW 2,076,30,300 per annum from the day following the judgment of the court below to October 14, 1998, and KRW 2,076,303 to the plaintiff Yang Tae-jin-jin, and KRW 1,384,202 to the plaintiff Shin Jong-jin, and KRW 6,114,495 to the plaintiff Shin Jong-sik, and KRW 5,358,357 to the plaintiff Cho Jong-tae, respectively, and the part of the appeal of this case to the plaintiff Park Jong-man shall be dismissed as the defendant's appeal of this case is without merit, and the remaining part of the appeal of this case shall be dismissed as the defendant's appeal of this case is without merit.

Judges Lee Dong-dong (Presiding Judge)