2014 Ghana 19439 Return of Fraudulent Gains

A

Seocho-gu

June 10, 2015

July 15, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

From August 1, 2014, the Defendant shall pay to the Plaintiff 43,661,962 won with 5% interest per annum from August 1, 2014 to the delivery date of the application for amendment of the claim of this case, and 20% interest per annum from the next day to the day of complete payment. From August 1, 2014, the Defendant shall pay the amount calculated by the ratio of KRW 981,762 per annum from the last day of each month to the day on which the Defendant terminates possession of the land indicated in the separate sheet or the Plaintiff loses its ownership.

1. Basic facts

A. On August 26, 2010, the Plaintiff was awarded one-fourth share of each land listed in the separate sheet (hereinafter “each land of this case”) in the real estate auction procedure.

B. The Defendant occupies and manages each of the instant land as a road.

[Reasons for Recognition] Uncontentious Facts, Entry of Evidence A 1 to 4, the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, the defendant is obligated to return to the plaintiff, who is the owner of shares in each land of this case, gains from the possession and use of shares in this case as unjust enrichment, unless there are special circumstances.

3. Judgment on the defendant's assertion

A. The defendant's assertion

The former owner of each land of this case renounced his exclusive right to use and benefit from the land of this case, and the Plaintiff acquired each share of the land of this case with knowledge of the circumstances where the use and the bad faith are restricted in the auction procedure or at least, and thus, it cannot be claimed against the Defendant for the return of unjust enrichment.

B. Legal principles

Since it is reasonable to deem that the original owner of the land provided a part of the land as a road site without compensation and renounces the exclusive right to use and profit therefrom, and that the person who specifically succeeded to the ownership of the land through auction, sale, payment in substitutes, etc. after the residents have passed the land without compensation and subsequently acquired the ownership of the land, since it is reasonable to deem that he/she did not exercise the exclusive and exclusive right to use and profit from the part of the land provided as a road, even though he/she is in possession and management of a part of the land as a road, it cannot be said that any damage has occurred to the person, and the local government does not have any profit, and thus, a claim for return of unjust enrichment cannot be made on the premise thereof (see Supreme Court Decision 2012Da26411, Jul. 12, 2012).

C. Facts of recognition

The following facts are recognized in full view of the statements in Eul 1 to 9 evidence.

1) In the 1970s, Seoul Special Metropolitan City implemented the land partition rearrangement project for the Youngdong District, and completed the public announcement of land substitution disposition on December 28, 1985.

2) On March 12, 1981, G et al. owned land in Gangnam-gu Seoul, C, D, E, and F in the said land readjustment project zone submitted a letter to the Seoul Special Metropolitan City for the purpose of expanding roads in the middle of each of the above land when applying for the change of land substitution as to the above land, and G, H, I, I, and J submitted a letter to the effect that “A, H, I, and J, the owner of F land, changing the above land to the road substitution, does not object to the land substitution.”

3) Since then, F land was determined to be substituted by each of the instant land, and land category was changed to “road”.

D. Determination

According to the above facts, it is reasonable to view that the former owner of each land of this case provided it to the road site without compensation and waived the exclusive and exclusive right to use and benefit therefrom. Accordingly, the Plaintiff cannot exercise the exclusive and exclusive right to use and benefit. Therefore, even if the Defendant occupies and manages each of the above land as a road, it cannot be said that there exists any damage to the Plaintiff, and the Defendant did not have any benefit.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it does not need further review the remaining issues, and it is without merit.

Judges Shin Young-hee

A person shall be appointed.