[지료청구사건][고집1973민(1),145]
1. Whether the request for return of unjust enrichment is made where the private land is incorporated into the road site without any procedure for purchase or expropriation; and
2. Where the provisions of Article 79 of the Road Act concerning compensation for losses apply.
1. In a case where the right to request the transfer of private land is incorporated into a road site without the procedure to obtain the title, such as purchase or expropriation of private land, it is not prohibited from claiming the return of unjust enrichment even if it is impossible to exercise such right under Article 5 of the Road Act;
2. The procedures for compensating for damages under Article 79 of the Road Act are applicable to cases where the damages have been incurred due to the dispositions or restrictions under the provisions of the Road Act.
Articles 5 and 79 of the Road Act
Kim Jong-sub
Seoul Metropolitan Government
Seoul Central District Court (72 Gohap3103) in the first instance trial
According to the plaintiff's expansion of claim, the part against the plaintiff in the original judgment shall be modified as follows:
The defendant shall pay to the plaintiff the amount of 5,219,160 won and the amount of 958,902 won from January 5, 1970 to 1,391,040 won with an annual rate of 5% from January 5, 1970 to the date of full payment.
The plaintiff's remaining claims are dismissed.
The defendant's appeal is dismissed.
All the costs of the lawsuit shall be borne by the defendant.
A provisional execution may be executed on the amount which is not put by the original judgment from among the money mentioned in paragraph (2).
The plaintiff's attorney shall expand the claim at the trial, and the defendant shall pay to the plaintiff the amount of 5,63,008 won and the amount of 958,902 won from January 5, 1970 to 1,391,040 won with an annual rate of 5% from January 5, 1971 to the date of full payment.
The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution are sought.
The defendant-appellant shall revoke the part of the original judgment against the defendant.
The plaintiff's claim is dismissed.
All the costs of lawsuit are assessed against the plaintiff in the first and second instances.
In full view of Gap evidence Nos. 1-2 and Gap evidence Nos. 1-2 (each judgment), and Gap evidence Nos. 2 (a copy of the register) and the whole purport of the pleadings as a result of on-site inspection conducted by the original court and the trial court, the plaintiff purchased and acquired ownership on Nov. 11, 1967, and the plaintiff acquired ownership as a site for ownership transfer registration on Nov. 11, 1967. Construction Part Nos. 444 of the Seoul Jongno-gu Construction Division No. 1963, Jul. 11, 1963. Thus, the defendant was determined as the Seoul Urban Planning Area by the partial alteration and confirmation of the plan under the Seoul Urban Planning Plan No. 14 of Jan. 14, 1968 without any procedure such as purchase or expropriation of the above site, and the road construction was completed on Feb. 18, 1968.
As the defendant cannot exercise his private right against the site that constitutes a road under Article 5 of the Road Act, the plaintiff asserts that the plaintiff cannot make a claim for return of unjust enrichment, but the above provision cannot exercise his private right to request the delivery of unjust enrichment against the road site, and since the prohibition of the claim for return of unjust enrichment is not prohibited, the defendant'
In order for the plaintiff to receive remedy, the defendant must consult with the administrative agency about the compensation for loss pursuant to the provision of Article 79 of the Road Act, and if the plaintiff is dissatisfied with the compensation decided by the administrative agency because of the lack of consultation, the plaintiff shall apply to the land expropriation committee for the adjudication, without going through such procedure, the plaintiff's appeal is justified, and Article 79 of the Road Act applies to the case where the plaintiff suffered loss due to the disposition or restriction under the provision of Article 19 of the Road Act. In this case, there is no evidence of assertion that the plaintiff's above site was the public notice of the preference approval under Article 19 of the Road Act and the public notice of the determination of the road zone under Article 25 of the Road Act, and there is no evidence of assertion that the above site in this case was the public notice of the preference approval of the
Therefore, according to the results of appraisal by the 1969 E.I.D. 2 of the original judgment, the amount of monthly rent for the above site is KRW 3,200, the amount of monthly rent for the year 1970, KRW 4,200, KRW 5,000, and the amount of monthly rent for the year 1972, respectively, may be recognized. The result of appraisal by the 1970 E.I.D. 2 of the original judgment against the above recognition is 5,00, and there is no counter-proof otherwise. The damages from February 5, 1969 to January 4, 1970 are 3,200, KRW 200, KRW 200, KRW 1965, KRW 197, KRW 1970, KRW 1965, KRW 197, KRW 197, KRW 1965, KRW 197.
Therefore, the defendant is obligated to pay to the plaintiff the amount of 5,219,160 won and the amount of 958,902 won (the plaintiff's claim shall be 971,520 won or the plaintiff's claim) from January 5, 1970 to 1,391,040 won, and the amount of 1,391,040 won shall be paid from January 5, 1971 to each full payment (the plaintiff shall not claim damages for delay of 2,856,60 won) from January 5, 1971 to each full payment date (the plaintiff shall not claim damages for delay). Thus, the plaintiff's claim of this case shall be justified within the above recognition scope and the remaining claims of the plaintiff shall be dismissed without merit. Accordingly, the defendant's appeal shall be amended as to the part against the plaintiff in the original judgment due to the expansion of the plaintiff's claim at the trial, and the defendant's appeal shall be dismissed as without merit, and it shall be subject to Article 19 of the Civil Procedure Act.
Judges Noh Jeong-hee (Presiding Judge)