In light of the provisions and records of Articles 80-2 and 40 of the Road Act and Article 24(5) of the Enforcement Decree of the same Act, the court below is justified in the decision of the court below that the owner of a building should be subject to the collection of unjust enrichment per road occupation and use fee per road under Article 80-2 of the Road Act on the ground that the 4th underground structures of the 3rd-ro 3rd-ro 143rd-ro, Seoul, consisting of an adjacent officer building and the underground parking lots of the 2,3, and 4rd-ro, 3, and 4th-ro, in combination with the underground parking lots of the 3rd-ro, 3rd-ro, Seoul, and the underground parking lots of the 4rd-ro, and therefore, the owner of the building is exclusively used for the entrance route

2. As to grounds of appeal Nos. 3 and 4

Article 2 of the Parking Lot Act provides that a parking lot is divided into an on-road parking lot, an off-road parking lot, and an attached parking lot, which is provided to the general public for use, and an attached parking lot is a parking lot installed in a place other than a road surface and a traffic plaza, and an attached parking lot is provided to a building, a facility user, or a general public for use under Article 19 or 19-2 of the same Act, which is a parking lot attached to a building, a golf practice range, or other facilities creating demand for parking. According to the records, each underground parking lot of the amamba building, an officer building, an underground parking lot of the 2, 3, and the 4th floor is not an off-road parking lot provided for the general use, but an attached parking lot, and the road underground structure of this case can be recognized as part of the above attached parking lot or a passage

The court below has some defects in its reasoning, but it is just in its conclusion, and there is no ground for appeal on the premise that the road underground structure of this case is an off-road parking lot.

3. Regarding ground of appeal No. 2

The lower court determined that, in light of the following: (a) the Plaintiff et al.’s building owners, etc., installed vinyl strings and installed a vinyl strings and used only 1/3 of the part located outside of vinyl strings as vehicle passage by preventing vehicles entering underground parking lots from damaging the above vinyl strings; (b) the above underground structure was authorized under the condition that the above underground structure should be used as vehicle passage; (c) the underground structure is not restored to its original underground parking lot connecting passage; and (d) the wall of the underground structure still functions as a component of the underground parking lot; and (e) the installation of exhaust facilities and electric facilities, etc. is installed in the underground structure; and (e) the Plaintiff et al.’s building owners, et al. continue to occupy and use not only one third of the parts used as vehicle passage but also the remaining parts, and thus, it is subject to the collection of unjust enrichment under Article 80-2 of the Road Act.

However, if the nature of money collected pursuant to Article 80-2 of the Road Act is the same as simple management without obtaining substantial benefits, it shall not be subject to the collection of unjust enrichment per road occupation and use fee. The facts of the decision of the court below alone are that the building owners, including the plaintiff, etc. manage the part not being used as vehicle passage among the above underground structures, it is difficult to view that there is any substantial benefit.

Although exhaust facilities and electric facilities are installed in the above underground structures, it is difficult to readily conclude that a road occupation and use is subject to collection of unjust enrichment equivalent to road occupation and use fees solely on the ground that such facilities are installed without stating whether such facilities are intended for an underground parking lot owned by the Plaintiff, etc., such as the Plaintiff, or who would be damaged

Furthermore, according to the records, the above building owners did not intend to occupy and use the underground structure of the road on March 15, 1991, and have no intention to close this part. Thus, although the defendant applied for approval and requested to do so, it can be seen that the defendant did not take any measure of closure. Thus, it cannot be said that the above building owners continue to occupy and use the road on the ground that the defendant did not take any measure of closure.

Therefore, the decision of the court below that the disposition of this case is justified as it is deemed to occupy and use the portion not used as vehicle passage, and the decision of the court below that affected the conclusion of the judgment is erroneous, and the appeal pointing this out is justified.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice)