[부당이득금][하집1990(1),58]
Article 741 of the Civil Act, Article 46 of the Land Expropriation Act, Article 57-2 of the same Act, Article 4 of the Public Compensation for Loss, Article 2 of the Enforcement Rule of the same Act, Article 6-2 of the Enforcement Rule of the same Act
The Bank of Korea, Inc.
Seoul Metropolitan Government
Seoul Civil History District Court (88 Gohap10379)
1. Of the original judgment, with respect to 232,926,00 won and 30,413,000 won and 40,413,000 won from April 1, 1984; with respect to 40,793,000 won from April 1, 1985; with respect to 48,682,00 won from April 1, 1986; with respect to 54,910,00 won from April 1, 1987; with respect to 54,910,00 won from April 1, 1987; from April 1, 1988 to February 1, 1989; and from the next day to the date of full payment, the Plaintiff’s claim for cancellation shall be revoked; and the Plaintiff’s claim for cancellation shall be dismissed.
2. The defendant's remaining appeal is dismissed.
3. The total costs of the lawsuit shall be borne by the defendant.
The defendant shall pay 232,926,00 won to the plaintiff and 30,413,000 won from April 1, 1984; 40,793,000 won from April 1, 1985; 48,682,00 won from April 1, 1986; 54,910,00 won from April 1, 1987; 58,128,00 won from April 1, 1988 to June 30, 198; and 25,000 won from the date following the date of full payment to the date of full payment.
The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
The judgment that the total cost of lawsuit shall be borne by the plaintiff.
According to Gap evidence Nos. 1 and 2 of this case, as to the size of 18-2 to 314 square meters in Seoul Central District Court No. 36052, Dec. 29, 1970, it can be recognized that the ownership transfer registration has been completed in the plaintiff's future on the ground of the decision of successful bid permission on Nov. 27, 1970. Thus, the above land is owned by the plaintiff, No. 2 (Land Ledger), No. 3, No. 2, No. 2, No. 1, No. 2 (Urban Planning Confirmation), No. 3, No. 1, No. 177), No. 3, and No. 1, No. 2 (Land Registry No. 177), and No. 2, No. 3, and No. 1, No. 365 of this case's land to which the defendant had no dispute on the establishment of this case's land, and No. 2, No. 1, 267, etc. of this case's.
Thus, the land of this case is deemed to be possessed by the defendant according to the above incorporation into the road, and unless there is no assertion as to the defendant's right to possess and use the land of this case, the defendant is obligated to return to the plaintiff unjust enrichment obtained by occupying and using the land of this case as a road without a title from April 1, 1983 to March 31, 198, which the plaintiff seeks from the date of acquiring the ownership of the land of this case.
However, on April 10, 1957, the Defendant newly constructed the 4th floor building on the ground of 18-2, Jung-gu, Seoul, Jung-gu, and provided the 22-meter national highways on the front of the building as a passage to all the above non-party companies and national highways, and the customers or banking employees who use the above building as the main passage to the above branch of the Plaintiff bank Eul branch of the bank and access the above branch of the above building as the only passage to the above building. Accordingly, since the land of this case was provided for the purpose of using it as a road for the passage of the general public or at least to use it as a road for the passage of the general public, the land of this case should be rejected as the Plaintiff’s request for the authorization of the project implementation of the instant urban planning project by the Defendant for the extension of the road or the road-related road-related road-related road-related road-related road-related road-related land-related land-related land-related land-related land-related land-related land-related land-related land-related land-related land-related land-related land-related land-related land-related construction plan.
Therefore, even if the Plaintiff had no dispute over the establishment of the above-mentioned No. 1, No. 2, No. 3-2, No. 3-4, and No. 4 were to be used as the above-mentioned land for the purpose of acquiring the above-mentioned land from the above-mentioned land, the Plaintiff cannot be deemed to have used the above-mentioned land for the purpose of acquiring the above-mentioned land for the purpose of using the above-mentioned land as a new road for the purpose of using the new road for the purpose of acquiring the above-mentioned land for the purpose of using the new road as a new road for the purpose of acquiring the above-mentioned land for the purpose of acquiring the above-mentioned land for the purpose of using it as a new road for the purpose of acquiring the above-mentioned land for the purpose of using it as a new road for the purpose of acquiring the above-mentioned land for the purpose of using it as a new road for the purpose of acquiring the above-mentioned land for the purpose of using the new road for the purpose of using it as a new road for the purpose of using it as a new road for public use.
In addition, the defendant argued that the defendant had the right to possess and use the land of this case since the contract was concluded between the defendant on May 12, 197 as the appraised price at the time of the purchase and sale of the land of this case, the defendant's assertion that the defendant had the right to possess and use the land of this case. Accordingly, the fact that there was an agreement between the defendant and the plaintiff on the sale and purchase of the land of this case is the plaintiff. However, the mere fact that there was an agreement on the sale and purchase of the land of this case, it cannot be deemed that the defendant had the right to possess the land of this case, and there is no other evidence to prove that the contract was actually concluded.
Therefore, with respect to the scope of unjust enrichment to be returned by the Defendant, the Defendant obtained the benefits of the clinical party by occupying and using the instant land, and caused damages to the Plaintiff. According to the result of the appraisal of the Park Jong-chul from April 1, 1983 to March 31, 1988, the rent from April 1, 1983 to March 31, 1984 where the Plaintiff had no deposit for the instant land during the period from April 1, 1983 to March 31, 1984, the rent from April 1, 1984 to March 31, 1985 to 40,793,000 won, from April 1, 1984 to March 31, 1985, the Defendant is obligated to return the rent from April 1, 198 to March 31, 198; and thus, the rent from April 1, 1985 to March 31, 1986.
Therefore, the defendant is liable to pay to the plaintiff the above 232,926,00 won and the amount equivalent to the rent for each of the above periods at the rate of 5% per annum from the day after the end of each of the above periods until February 1, 1989. (the plaintiff is liable to pay damages for delay under the Civil Act at the rate of 25% per annum from the day after the day after the copy of the application for modification of the purport of this case was served on June 28, 1988. However, this case has a dispute over the existence of the obligation to pay damages, and it is recognized that the dispute is reasonable, so the above interest rate under the Special Act is not applied until the end of the original sentence, and the plaintiff is liable to pay damages for delay under the Special Act on the Promotion, etc. of Legal Proceedings with the rate of 25% per annum from the day after the end of each of the above periods until the day after the end of the judgment. The plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims for delay are dismissed.
Judges Lee Yong-hun (Presiding Judge)