(b) A case where it is deemed that the de facto possession and management of roads has been changed to the Gu that is a separate independent local government in Seoul Special Metropolitan City due to the amendment of the Local Autonomy Act;

(c) If the owner of a private land voluntarily provides land as a road and grants the general public the right to free of charge, whether the State or a local government which has the form of the road and has occupied and managed the general traffic following the construction on the land shall claim the return of unjust enrichment on the ground of an illegal occupation (negative);

(d) Criteria for interpreting intent to provide private roads;

B. The case holding that the amendment of the Local Autonomy Act was to change the subject of de facto possession and management of roads to the Gu that is a separate independent local government in Seoul Special Metropolitan City.

C. In a case where the State or a local government, on a private land which was previously used, or not used, for the general public in fact or for the general public, performs construction works separately from the legal procedures of the Road Act or the Urban Planning Act, and is in the form of a road, and the land still or only is used for the general traffic, if the land owner voluntarily provided the land as a road, thereby granting the general public the right to free traffic, the State or a local government, which opened, occupied, or managed the land as above, may not claim a return of unjust enrichment on the ground of an unlawful occupation.

(d) In order to interpret that a private land is naturally occurring or is actually used as a road site and is classified into a prospective road site and actually used as a passage of the general public, the landowner has renounced his/her right to use and benefit, or has given his/her consent to use as a road, the determination must be made after careful consideration of various circumstances, such as the developments and period of the purchase of the relevant land, the location and nature of the relevant

The costs of appeal are assessed against the defendant.

1. On the second ground for appeal

The form of occupation of a road by the State or a local government can be divided into possession and possession as a de facto controlling entity. In fact, if a road is to be approved under the Road Act or a road zone is to be constructed by the implementation of an urban planning project under the Urban Planning Act, possession as a road management authority may be recognized starting from that time. However, if the State or a local government implements the construction or maintenance of a road, such as expansion of the existing road, packing, or installation of sewerage system, and the construction or maintenance of a road is to be carried out for public traffic, it shall be deemed that the existing road is under the de facto control of the State or a local government, and possession as a de facto controlling entity may be recognized (see Supreme Court Decision 91Da21206 delivered on September 24, 191; Supreme Court Decision 91Da110 delivered on July 12, 191; 90Da5975 delivered on March 12, 191).

According to the reasoning of the judgment below, the court below acknowledged that the part of the attached drawing (b) section 138 square meters from the 231 square meters of Dongjak-gu Seoul Metropolitan Government's ( Address omitted) is merely an urban planning facility decision and cadastral approval under Article 12 and Article 13 of the Urban Planning Act on April 25, 197, and Article 6 (1) of the Enforcement Decree of the same Act. However, building permission, etc. is regulated under Article 4 of the Urban Planning Act on the above part (b) as well as the neighboring housing, and the neighboring residents have passed through the above part (b) naturally due to the nature of the housing. Since the Dongjak-gu, Seoul Metropolitan Government's affiliated agency had been established from November 6, 1987 to the welfare project (Gu), the local government was actually occupied and used from the point of possession to April 30, 1988, the court below determined that the local government was actually in violation of the provisions of Article 18 of the Local Autonomy Act from the point of possession to the Seoul Metropolitan Government's 1848.

Therefore, the ground that Seoul Special Metropolitan City publicly notified the above (B) part of the land to approve the urban planning facility decision and the urban planning project under the Urban Planning Act is not an approval of the urban planning implementation plan under the Urban Planning Act and the implementation of the urban planning project (road construction), it cannot be deemed a road as one of the urban planning facilities under the Urban Planning Act. Moreover, as seen above, the form of occupation of the road in this case is not an occupation of the road management authority, and therefore, the argument of the misapprehension of legal principles, which assumes that the road in this case is

2. On the first ground for appeal

If the State or a local government grants the land as a road by itself and for free to pass to the general public in cases where the land is still or only used for the general traffic by performing construction works, separate from the legal procedures, such as the Road Act or the Urban Planning Act, on the ground that the land was actually or not used for the general public, the State or the local government shall not make a claim for the return of unjust enrichment on the ground that the land was occupied and managed by the State or the local government which opened, occupied, or managed the land as above. In order to interpret that the land owner renounced the right to use or obtained the consent to use as a road in cases where the land was naturally or naturally used as a land scheduled for the general traffic, or is actually used as a road, it shall be determined carefully by taking into account all the circumstances such as the purchase or holding period of the land, the location, character, surrounding environment, etc. of the land actually used for the road (see Supreme Court Decision 8Da1697, Jul. 11, 198; 29Da16979, Dec. 29, 1997).

According to the facts established by the court below, building permission, etc. for the portion of the land of this case is regulated by Article 4, etc. of the Urban Planning Act due to the public notice, etc. of the Seoul Special Metropolitan City’s urban planning decision. In the vicinity of the land, the plaintiff, a land owner, could not actually enjoy profit from the land of this case by entering into the housing of this case, resulting in the natural occurrence of the alley length of the above part of the land of this case, and even after examining the record, there is no evidence suggesting that the plaintiff renounced his right to use and benefit from the land of this case by providing the land of this case to the road by dividing the portion of (b) out of the land of this case into the urban planning line, or granted the right to use that portion to the general public

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)