(b) Standards for determining whether the State or a local government occupies a road;

(c) The case reversing the judgment of the court below that did not recognize the de facto control of the military as to the road is erroneous in the determination of evidence or incomplete hearing

B. In determining whether the State or a local government occupies a road, there is no problem in recognizing the possession of the road under the possession and management of the State or a local government, which is the road management authority. However, the possession as a road management authority can be recognized from the time the road is to be at least subject to the application of the Road Act, namely, from the time of the public announcement of the approval of routes and the determination of a road zone under the Road Act. In a de facto road not subject to the Road Act, if the State or a local government constructs or maintains the existing road, or is already constructed by the State or a local government, such road shall be deemed to be under the de facto control of the State or a local government, and it shall be deemed to be a road under its possession and management, even if it is constructed in the form of a resident self-help project, if it is actually recognized that the state or a local government bears a substantial portion of the construction cost and is under the public traffic while maintaining and repairing the road.

(c) The case reversing the judgment of the court below on the ground that the fact that the roads do not recognize the de facto control of the military is based on the determination of evidence as to the construction cost burden of road packaging construction, and that the examination was not conducted on the contents of the above construction and the situation of public use for public traffic, etc.

1. If the State or a local government occupies another's land as a road without any lawful compensation procedure such as the procedure for expropriation under the Road Act or the Urban Planning Act, it is occupied and used as a road without any legal ground between the owner of the land. Thus, regardless of whether it is a road subject to the Road Act, etc., the State or a local government cannot avoid the obligation to return unjust enrichment due to such possession (see, e.g., Supreme Court Decision 73Da1772, May 13, 1975; Supreme Court Decision 76Da2692, Feb. 8, 197; Supreme Court Decision 77Da508, Oct. 10, 1979; Supreme Court Decision 82Meu846, Dec. 14, 1982).

However, in determining whether the state or a local government occupies the road, it is necessary to consider the case of the road subject to the application of the Road Act, and the case of the de facto road.First of all, since the road subject to the Road Act, etc. is under the possession and management of the State or a local government, the road management authority, which is the road management authority, there is no separate problem in recognizing the possession. However, the occupancy as a road management authority is at least subject to the Road Act, i.e., when the public announcement

On the other hand, in the case of de facto roads not subject to the Road Act, etc., if the State or a local government executes the reconstruction or maintenance work of roads such as expansion, road packing, or installation of sewerage with respect to the existing roads which are constructed, or already constructed, for public traffic, such roads shall be deemed to be under the actual control of the State or the local government, and thus, they shall be deemed to be possessed and managed

Therefore, if a person other than the State or a local government actually constructs a road as a self-help project, or rebuilds, maintains, or repairs the existing road, it is difficult to see the de facto controller of the road as the State or a local government. However, even if the road is constructed in the form of a self-help project, if such circumstance is recognized as such, such road is actually under the de facto control of the State or a local government, if the State or a local government bears a substantial portion of the construction cost and takes charge of maintenance and repair of the road even after the construction work, and is in common use for the traffic of the public, such road shall be deemed as being under the control of the State or a local government. Therefore, the determination of whether to occupy the road should be made through examination

2. According to the reasoning of the judgment below, the court below held that the previous owner of the land, including the instant land, was voluntarily divided into the road to own the neighboring land and the category of the neighboring land was changed to the site by changing the land category into the site (the previous owner of the land, etc., was 190-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-60-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-70-700-70-7

However, according to the evidence employed by the court below, especially Eul evidence 2-1 and 2, and the testimony of the witness of the first and second instance court, 19,812,00 won is included in the total project cost of small Do Do Do dong Do dong Ha project implemented in 197, including the cost of housing maintenance, such as the maintenance of defective buildings and other maintenance projects, such as the maintenance of parking lots, in addition to the maintenance of street such as the main road packaging of this case, and the amount subsidized by the defendant Gun as expenses of the defendant Gun among this is merely 11,429,00 won, but only the main road packaging work is limited to 11,429,000 won, without the residents' construction cost, and it is recognized that only the main road packaging work is executed by the defendant

Therefore, the court below's execution of the Packing of the road of this case as a resident self-help project and the defendant did not recognize the defendant's de facto control since it merely subsidized only some (5.7%) out of the project cost. The judgment of the court below should have judged whether the defendant occupies the road by examining all circumstances such as the execution contents of the main road packing project and the situation of public use in public traffic. In this regard, the judgment of the court below cannot be maintained due to the error of law affecting the conclusion of the judgment due to the error of evidence judgment and incomplete deliberation.

In addition, the author argues that the above road cannot be deemed as a de facto controlling entity of the road, solely on the fact that the local government bears part of the expenses for self-help projects or materials for the road constructed by the residents' self-help project, and the above road cannot be deemed as a road management entity of the road. Moreover, the possession and management as a road management entity of the road cannot be recognized on the sole basis of the notice of the proposed road area for the road. It does not conflict with the summary of the decision of the Supreme Court Decisions 8Da1697 delivered on July 11, 1989, 8Da16997 delivered on July 11, 1989, and the theory of the lawsuit does not conflict with the summary of the decision of the road management authority. It is nothing more than the German theory that did not understand the purport of the decision of the case that did not state separately between the possession as a de facto controlling entity of the road and the possession as a road management authority under the Road Act or the Urban Planning Act.

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)