(a) Whether it is necessary to request in advance unjust enrichment for the land that the Seoul Special Metropolitan City has occupied and used as a road site without title to the future due date;

(b) The basic price of land to calculate unjust enrichment on the land occupied and used by the State or a local government as a road site;

C. Whether to consider development gains in calculating the amount of unjust enrichment under Paragraph B(b)

A. If the Seoul Special Metropolitan City, while occupying and using another person’s land as a road site until the time of closing argument at the fact-finding court, refuses to return unjust enrichment equivalent to the rent for it, and if the present performance is not performed with respect to the continuous and repeated performance obligation, the Seoul Special Metropolitan City is obviously foreseeable that the obligation should not be voluntarily performed even for the remaining portion due to the expiration of the occupation of the Seoul Special Metropolitan City due to the closure of the road set up on the land, or until the date when the landowner loses ownership to the land, and thus, the land owner need to claim in advance unjust enrichment for the part of the due date.

B. The basic price of the land for calculating 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, where the State or a local government constructs a road under the Road Act, etc. with respect to the land actually used for the general public traffic, and possesses or occupies a road after completing the construction of a road, which is in the form of a road, as the road management authority, or performing the construction of a road in fact necessary, and where the State or a local government occupies the road as a de facto controller, it shall appraise the land as limited to the road. However, where the State or a local government occupies a road only when the land is not actually used for the general public traffic, it shall appraise the land according to the actual situation at the time of its incorporation without considering the circumstances incorporated into the road, and it shall be deemed that the land was incorporated into the road site and acquired by the landowner with knowledge that it is limited to the exercise of private rights

C. If the land condition or price of the surrounding land incorporated into a road has been affected by the construction of a road by the State or a local government, and the market price of the land has increased accordingly, such circumstances should also be considered in calculating unjust enrichment in consideration of the general land use situation in the surrounding area.

(b)Article 741(a) of the Civil Procedure Act;

A. Supreme Court Decision 91Da46717 delivered on March 9, 1993 (Gong1993Sang, 1141). Supreme Court Decision 90Da19251 delivered on March 12, 1991 (Gong1991, 1176) 92Da22343 delivered on September 222, 1992 (Gong1992, 2978) 94Da16120 delivered on June 28, 1994 (Gong194Ha, 2103) 92Da19804 delivered on August 24, 1993 (Gong193Ha, 2572).

[Judgment of the court below]

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 93Na27446 delivered on April 29, 1994

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. On the first ground for appeal

As determined by the court below, if the defendant occupies and uses the land in this case without any legal ground, the defendant is obligated to return unjust enrichment equivalent to the rent for the road, regardless of whether the road is subject to the application of the Road Act, etc., and even if the plaintiff acquired it with the knowledge of the utilization relationship of the land in this case, such circumstance alone cannot be deemed as an obstacle to the plaintiff's claim for return of unjust enrichment in this case (see, e.g., Supreme Court Decision 92Da22343, Sept. 22, 1992; Supreme Court Decision 92Da19804, Aug. 24, 1993; Supreme Court Decision 92Da19378, Jan. 25, 1994).

In the same purport, the judgment of the court below ordering the defendant to make a return of unjust enrichment equivalent to the rent is just, and there is no error of law such as misapprehension of legal principles as the theory of lawsuit. There is no ground to

2. On the second ground for appeal

In light of the records, we affirm the judgment of the court below that there is no evidence that the purchase of the land of this case by the plaintiff was a juristic act contrary to good public morals or social order or for the purpose of the trust of lawsuit, and there is no error of misconception of facts due to insufficient deliberation, etc.

The argument in the lawsuit that the plaintiff is responsible for proving that the purchase of the land in this case is not contrary to good morals and other social order, and is not for the trust in the lawsuit is not against good morals and other social order, shall not be accepted as it is not only after its independent opinion. There

3. On the third ground for appeal

According to the reasoning of the judgment below, as long as the defendant occupied and used the land of this case until the time of the closing of argument in this case and refused to return unjust enrichment equivalent to the rent for it, and as long as the defendant does not perform his obligation to continue and repeated performance, it is obviously anticipated that the defendant will not perform his obligation voluntarily as to the expiration of the term due to the closure of the road opened on the land of this case or until the time when the plaintiff loses its ownership on the land of this case, the court below ordered the defendant to claim in advance for unjust enrichment from the completion of argument in the court below to close the road of this case or to return the plaintiff's ownership of this case. In light of the records, the court below's fact-finding and judgment are just (see Supreme Court Decision 91Da46717 delivered on March 9, 193, 199), and there is no error of law in the misapprehension of legal principles as to the future performance theory, such as the theory of lawsuit for performance.

4. On the fourth ground for appeal

A. The basic price of the land to calculate unjust enrichment is limited to a road where the State or a local government occupies a road as a road management authority by constructing a road under the Road Act, etc. with respect to the land which was actually common use for the general public from the previous time, or by performing construction works required in fact, and where it occupies a road as a de facto controlling entity, it shall be appraised according to the road status, i.e., limited to a road (see, e., Supreme Court Decisions 87Meu931, Nov. 22, 198; 92Da52023, Aug. 27, 1993; 92Da19378, Jan. 25, 1994; 92Da19378, Jan. 29, 1994; 2009Da1939499, Sept. 29, 209). 209; 3.

In addition, if the land condition or price of the neighboring party of the land incorporated into the road has been affected by the construction of the road by the State or a local government and the market price of the land has increased accordingly, these circumstances should also be considered in calculating unjust enrichment in consideration of the general land use situation in the surrounding area (see, e.g., Supreme Court Decision 74Da2144, May 27, 1975; Supreme Court Decision 90Da19251, Mar. 12, 1991; Supreme Court Decision 92Da22343, Sept. 22, 1992).

B. In light of the record, the first instance court’s appraiser determined the basic price of the instant land by taking into account the general land use situation surrounding the area, and calculated the rent by applying the expected interest rate thereto. Based on the appraiser’s appraisal result, the lower court determined the unjust enrichment amount equivalent to the rent for the instant land.

Therefore, the court below seems to have calculated the amount of unjust enrichment on the premise that the road management authority had not been actually officially used for the traffic of the general public at the time of the commencement of possession of the instant land before the Defendant succeeded to the occupation and management of the instant land due to the reorganization of administrative district. In addition, it is not clear whether the actual state of use at the time of the commencement of possession by the road management authority for the instant land at the time of the commencement of possession, and on the other hand, the surrounding land of the instant land was directly affected by the construction of the road on the surface of the instant land. Since the appraisal report of the said appraiser does not mention the existence of development gains and the deduction thereof, it is entirely difficult to find out whether the appraiser deducted the development gains in determining the basic price of the instant land.

C. Therefore, the court below should first have deliberated more on whether the land in this case was actually used at the time of incorporation into the road site and judged whether the basic price of the land in this case should be limited to the road. If the basic price of the land in this case is not limited to the road, the court below should have deliberated and decided on the existence of development gains from the construction of the road in this case and the deduction thereof. However, the court below adopted only the appraisal result of the appraiser in the first instance trial and calculated the amount of unjust enrichment against the land in this case based on this, it cannot be said that there was an error of law affecting the conclusion of the judgment by misunderstanding the legal principles as to the calculation of the amount of unjust enrichment in this case. Thus, there is a reason to point this out.

5. Therefore, the part of the judgment below against the defendant shall be reversed, and that part of the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jong-sik (Presiding Justice)