1. As to the waiver of exclusive use rights

According to the reasoning of the judgment below, the court below acknowledged the following facts based on the adopted evidence: (a) there is no evidence that the defendant had taken the procedure for acquiring the pertinent property for public use or possessed the instant land with the prior owner’s consent to use; (b) there was a length that the residents around the instant land could control as a contribution even without providing the instant land to the road; (c) the land category of the instant land is a site that is not a road until now; and (d) the above RR road and S road leading to a contribution to both sides of the instant land could only be used as a passage to ensure the utility value of the instant land.

In full view of the fact that it is difficult to view it as being difficult for the general public to accurately understand the situation of the placement of sewage pipes around the land or building owned by him, and the fact that the Plaintiff (Appointed Party) and the designated parties seem to restrict the access of vehicles to the instant land from around 2005, the evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff (Appointed Party) and the designated parties renounced their exclusive right to use and benefit from the instant land. In light of the foregoing legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to logical and empirical rules, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence,

2. As to the return of unjust enrichment

A. According to the reasoning of the judgment below, the court below determined that the basic price for calculating the rent of the instant land should be determined based on the current status of the instant land, which is the site, on the ground that (i) the Plaintiff (Appointed Party) and the designated parties were using the instant land as the housing site and its accessory land at the time of the installation of the sewage pipe, as well as the remaining part of the instant land cannot be used for their own desired usage; and (ii) the Defendant is obligated to return unjust enrichment equivalent to the rent of the entire instant land to the Plaintiff (Appointed Party) and the designated parties; and (iii) the instant land was used as the housing site and its appurtenant land at the time of the installation of the sewage pipe, as the Defendant was using the instant land as the housing site and its appurtenant land.

B. However, it is difficult to accept the above determination by the lower court for the following reasons. (1) The reasoning of the lower judgment and the records are as follows: (i) the Defendant appears to have been naturally divided into the above and below parts of the road due to the formation of de facto road before the installation of sewage pipes on the ground of the instant land, as seen in paragraph (2) below; (i) the Defendant appears to have installed sewage pipes on the underground part of the instant road; and (ii) the land of Seoul Jung-gu, Seoul, which is the upper part of the road was divided into B on October 25, 1971; and (iii) the land was newly constructed on the ground and existed until the removal on August 26, 2004 after the construction of the housing on the ground of the instant land around 1977; and (iv) in view of the fact that the area of the instant land excluding the part installed by the sewage manager was small, it is difficult to view that the Defendant installed sewage pipes on the instant land to have failed to use the remaining land for the designated parties and the designated parties.

(2) In addition, according to the records, the following facts are revealed: ① part of the instant land, which the Defendant installed sewage pipes on the instant land at the time of 1991, was located between the Plaintiff’s land and S land in Jung-gu, Seoul, which was used as a road, and was connected with each other; ② the survey result map (No. 1) in 1990, stated that the current status of the part connected with the instant land, etc. among the instant land, is indicated as a road; and ② the parking plan submitted at the time of the building permission of the instant building, indicating that the instant parking plan was being used as a road, among the instant land, that the instant land was used as a road by the Seoul Jung-gu, Seoul. Accordingly, it is deemed that the Defendant was actually being used for the general public’s traffic since the Defendant installed sewage pipes on some underground.

(3) Therefore, it is difficult to view that the Defendant is obligated to return the remainder of the instant land, other than the part on which sewage management is installed, to the Defendant the unjust enrichment equivalent to the rent, and the basic price for calculating the unjust enrichment for the part on which sewage management is installed, shall be determined on the basis of the current status of the instant land being

Nevertheless, the lower court determined that the Defendant ought to return unjust enrichment equivalent to the rent for the entire land of this case, and that the basic price for calculating the amount of unjust enrichment should be set on the basis of the current status of “site” the land of this case. This is erroneous by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on unjust enrichment.

3. Conclusion

Therefore, the part of the judgment below against the defendant regarding claim for payment of money is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Gin-young

Chief Justice Lee Dong-won