The case is remanded to the Daejeon High Court.

(1) The lower court acknowledged that the instant building presumed owned by the Plaintiff (Counterclaim Defendant, hereinafter the Plaintiff) was constructed on the instant site presumed owned by the Defendant (Counterclaim Plaintiff, hereinafter the Defendant), and that the Defendant occupied and used the instant building from October 1, 1986 to March 15, 194. The Defendant has a duty to return to the Plaintiff the profit gained from occupying and using the instant building, i.e., the profit gained from occupying and using the instant building, i.e., the profit gained from occupying and using the instant building. The Plaintiff also has a duty to return unjust enrichment equivalent to the site rent, i.e., the profit gained from occupying and using the instant building, i., the profit gained from the instant building, i.e., the Nonparty’s appraisal, and determined that the Defendant’s reimbursement of KRW 2,51,207 to March 15, 1994, the amount equivalent to the Plaintiff’s reimbursement of KRW 140,510 to KRW 184,195 to the remaining amount of the instant claim for offset against the Defendant’s.

(2) A person who occupies and resides in a building owned by another person without any legal cause is obligated to return to the owner of the building the amount equivalent to the rent for the use of and profit from the building during the occupancy period. In this context, in calculating the amount of the rent, the rent for the lease is naturally accompanied by the use of the building site, and the rent for the lease is also included in the rent for the part of the building site in addition to the rent for the lease of the building. Thus, not only the rent for the building but also the rent for the part of the site is also calculated (see Supreme Court Decision 94Da27809 delivered on December 9, 194, 1994). In this case, in relation to the plaintiff, the defendant shall be deemed to have made unjust enrichment from the rent for the building site, which includes the profit from the use of and profit from the building site of the building site of this case.

However, according to the appraisal report (Records No. 318) prepared by the non-party appraiser adopted by the court below in order to calculate the rent amount of the building of this case, the above appraiser evaluated the rent amount of the building of this case based on the repurchasing cost (new construction cost) calculated on the basis of comprehensive consideration of the structure, materials, degree and phenomenon of construction, management condition, etc. of the building of this case, and calculated the basic price of the building of this case by considering physical progress, economic value decrease, future duration, etc., and then the basic price of the building of this case is calculated on the basis of the repurchasing cost (new construction cost) calculated on the basis of the unit price calculated on the basis of the unit price (new construction cost) calculated on the basis of its physical progress, economic value decrease, future duration, etc. In addition, the appraisal of the rent amount of the building of this case, which is provided for the lease of this case, is 10%, which is expected to be added to 3% of the expected profit rate of the house of this case. Meanwhile, the above appraisal of the building of this case can be included.

Therefore, if the rent of the building of this case calculated by the above appraiser who had followed the appraisal result does not include the appraisal of the use of the building of this case and the profit therefrom, the defendant should return unjust enrichment to the plaintiff. In calculating the rent of the building including the profit from the use and profit-making of the building of this case, the rent of the building of this case as well as the rent of the site shall also be calculated.

Nevertheless, the court below calculated the amount equivalent to the rent of the building of this case as unjust enrichment to be returned to the plaintiff by the defendant only based on the appraisal result of the above appraiser's rent of the building which was excluded from the profit from the use of the building of this case and profit from the use of the building of this case. This decision of the court below is erroneous in the misapprehension of legal principles as to the calculation of rent of the building of this case, which is unjust enrichment

(3) Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)