(a) pay 4,546,450 won and interest thereon at the rate of 15 percent per annum from July 7, 2016 to the date of full payment;

B. From June 20, 2016, the Defendant (Counterclaim Plaintiff) paid the amount of KRW 73,170 per month from June 20, 2016 to the date of expiration of the occupation of the Defendant (Counterclaim Plaintiff) or the date of the Plaintiff (Counterclaim Defendant)’s loss of ownership, whichever comes first.

2. The defendant-Counterclaim plaintiff's counterclaim is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and the counterclaim.

4. Paragraph 1 can be provisionally executed.

The text of paragraph (1) is as follows.

○ Counterclaim

The Plaintiff (Counterclaim Defendant, hereinafter only referred to as the Plaintiff) shall implement the procedure for the registration of ownership transfer on August 24, 1991, for the completion of the prescriptive acquisition on the road of 271 square meters in the Gisung-gun ( Address 2 omitted) by the Defendant (Counterclaim Plaintiff, hereinafter referred to as the “Defendant”).

A. On January 27, 1969, the deceased non-party 1 (the non-party: the non-party) purchased the pertinent land on January 27, 1969 and completed the registration of ownership transfer with respect to the land of this case on October 31, 2010, by inheritance by agreement division, and completed the registration of ownership transfer on April 19, 2012.

B. Around 1971, the Defendant opened a road by expanding a narrow narrow channel along the land (location 1 omitted), which is the location of the land of this case. During this process, the Defendant divided the instant land corresponding to the part to be expanded to a road around August 24, 1971, from the land above (location 1 omitted), and changed the land category from the “de,” to the “road.”

C. Since the land of this case started to be used as a road from around that time, the defendant has been managing the land of this case as a road while providing the vehicle traffic and the pedestrian walking to the public.

[Ground of recognition] Facts without dispute, Gap 1, 3 evidence, Eul 1 and 2 evidence (including branch numbers, if any), the whole purport of the pleading

2. Determination as to the claim on the principal lawsuit

A. The occurrence of a claim for restitution of unjust enrichment

(1) According to the above facts, the defendant is obligated to return to the plaintiff the unjust enrichment equivalent to the rent due to the possession and use of the land of this case.

(2) On this ground, the Defendant, as part of the Saemaul Project around 1971, did not raise any objection or demand compensation as to the construction of the instant land as a part of the Saemaul Project, and there was no objection or objection by the deceased Nonparty 1 or his heir for about 40 years thereafter, and accordingly, the deceased Nonparty 1, the former owner of the instant land, renounced the exclusive and exclusive right to use and benefit from the instant land, and the Plaintiff, who succeeded to the ownership of the instant land by the deceased Nonparty 1, cannot file a claim for return of unjust enrichment.

Unless there is any evidence to acknowledge that the non-party 1 consented to the use of the land of this case when the land of this case was established as a road, or that the non-party 1 waivers the exclusive and exclusive rights to use and benefit from the land of this case since the purchase price or compensation was paid for the land of this case, the defendant cannot be deemed to have given up the exclusive and exclusive rights to use and benefit from the land of this case, and the defendant's defense is not accepted on the ground that there is no evidence to acknowledge otherwise (the defendant asserts that the land of this case was established as a part of the Saemaul project, but even if there is no evidence to acknowledge such fact, it cannot be deemed that the deceased non-party 1 renounced the exclusive rights to use and benefit from the land of this case).

B. Scope of return of unjust enrichment

In determining the scope of return of unjust enrichment by the defendant, the basic price of land in order to calculate the amount of unjust enrichment to be returned to the owner of the land in question by a person who occupies another's land without the title to the land in question should be assessed based on the actual conditions of use at the time the possessor begins possession (see Supreme Court Decision 2005Da31736, May 12, 2006). In addition, the basic price of land in order to calculate the amount of unjust enrichment equivalent to the rent for the land occupied and used by the State or a local government as a road in question from the previous to the public traffic by constructing the road in accordance with the Road Act, etc. with respect to the land in question, which the State or a local government occupies or occupies as a road by constructing the road in question as a road or by carrying out construction in the form of a road, which is in fact necessary for the public traffic, shall be appraised as limited to the road, i.e., the actual condition of use of the surrounding land, etc., if the land is occupied by the State or a local government without considering its actual condition of use.

Comprehensively taking account of the above 1-b. acknowledged facts, Gap evidence Nos. 1-2 and 3, Eul evidence Nos. 2-1, fact-finding reply and the whole purport of the pleading against the appraiser non-party 2, around August 24, 1971, it can be acknowledged that the land of this case was divided from the above ( Address 1 omitted), the land of this case, and the defendant changed the land category to "road" before occupying the land of this case, and the land of this case was not used for public use from around that time. According to the above evidence, it can be recognized that the situation where the land of this case was already constructed as a road before the land of this case was established as a road, and the neighboring land surrounding the land of this case had a narrow road on the mother land of this case [the above ( Address 1 omitted)] before the land of this case was established as a road, and that village residents had formed a village continuously since the 1970s. Accordingly, even if the land of this case was not constructed due to the expansion of the road of this case, it can be confirmed at least the attached land.

Therefore, the fact-finding reply to the appraiser non-party 2 of this court is based on the premise that the present state of the land of this case is a residential land with the land category designated as the "former", and based on which the land category is a "former" and the housing zone with a high business district is calculated by taking into account the heat factors. Therefore, it is reasonable to recognize the land of this case as the unjust enrichment amount from November 12, 2010 to the extent of unjust enrichment.

Based on the above fact-finding reply to Nonparty 2, the following calculation of the amount of unjust enrichment is made within the five-year period calculated from the filing date of the instant lawsuit to the local government under Article 82(2) of the Local Finance Act, which is the extinctive prescription period for the right to the local government under Article 82(2) of the Local Finance Act, as requested by the Plaintiff, within the extent that the extinctive prescription period has not yet expired.

① The amount of unjust gains accrued from November 12, 2010 to June 19, 2016: 4,546,90 won (i.e., the sum of KRW 4,473,280 from November 12, 2010 to May 19, 2016 and KRW 73,710 from May 20, 2016 to June 19, 2016)

(2) 73,710 won each month after June 20, 2016.

C. Sub-decision

Therefore, within the scope of unjust enrichment as claimed by the Plaintiff, the Defendant shall return to the Plaintiff the amount of KRW 4,546,450 as claimed by the Plaintiff, and shall pay damages for delay calculated at the rate of 15% per annum from July 7, 2016 to the day of full payment, as claimed by the Plaintiff, following the day of the delivery of the written application for alteration of claim and cause of the instant case, as for the said money. The Defendant is obligated to return unjust enrichment calculated at the rate of KRW 73,710 per month from June 20, 2016 to the day of the expiration of the Defendant’s occupation or the day of the Plaintiff’s loss of ownership.

3. Judgment on a counterclaim

A. Summary of the cause of the counterclaim

Since the Defendant opened the instant land as a road on August 24, 1971, and opened possession with the intention of possession, and has been occupied and managed until now, it acquired ownership on August 24, 1991 due to the completion of the prescription period for the acquisition of possession after the lapse of 20 years from the date of possession. As such, the Plaintiff is obliged to implement the registration procedure for the transfer of ownership on the instant land to the Defendant for the completion of the prescription period for the acquisition of possession.

B. Whether the prescription of possession is completed

(1) Relevant legal principles

If it is proved that the State or a local government occupied the land without permission despite the absence of legal requirements for acquiring ownership, it shall be deemed that the presumption of possession with intention to hold the land is broken: Provided, That even if the State or a local government fails to submit documents concerning the procedure for acquiring the land for acquisition of acquisition by prescription, in light of the purpose and purpose of possession, if it appears that the possibility that the State or a local government lawfully acquired the ownership of the land for public use at the time of commencement of possession cannot be ruled out, without the legal requirements for acquiring ownership, it is difficult to deem that the State or a local government has proved that it occupied the land without permission, even if the State or a local government is aware of such circumstance without permission. However, it is hard to view that the State or a local government preserve the cadastral record at the time of commencement of possession and use of the land without loss, and there is no description supporting the acquisition of ownership of the State or a local government, and there is no objective material supporting the acquisition of the property at the time of purchase or donation, etc., or there is no objective material supporting such possibility.

(2) According to the entire purport of the statement and arguments in the instant case: (a) around the beginning of the Defendant’s occupation of the instant land, there was a cadastral record, such as land cadastre Nos. 1-1 and 2, which was entered by the owner as Nonparty 1, the deceased Nonparty 1; (b) it may be acknowledged that there was no entry in the cadastral record supporting the Defendant’s acquisition of ownership; and (c) the Defendant did not submit objective data to support the acquisition of the instant land or to support the possibility thereof; and (d) the Defendant did not know the objective circumstances that could have known about the reasons for failure to submit, it shall be deemed that the Defendant occupied the instant land without permission knowing such circumstances without permission without permission, without the legal requirements for the acquisition of ownership; and therefore, (c) the presumption of possession of the instant land was broken. Accordingly, there is no reason for the Defendant’s claim for the ownership transfer registration based on the completion of the statute of limitations for possession of the Defendant

4. Conclusion

Therefore, the plaintiff's claim of main lawsuit is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-dae