Where the State or a local government occupies or uses land previously used for the general public traffic from among roads, the method of calculating the basic price of such land.

[1] Article 741 of the Civil Code

Supreme Court Decision 97Da35559 delivered on November 14, 1997 (Gong1997Ha, 3845) Supreme Court Decision 98Da56232 delivered on April 27, 1999 (Gong1999Sang, 1037), Supreme Court Decision 2000Da58576, 58583 Delivered on January 19, 2001 (Gong2001Sang, 527)

Jeon-chul et al. (Seoul International Law Firm, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City Dong-gu (Attorney Lee Dong-soo, Counsel for defendant-appellee)

Busan High Court Decision 2003Na10261 delivered on June 25, 2004

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Facts acknowledged by the court below

According to the reasoning of the judgment below, the court below found, based on the evidence of its employment, that the defendant pointed out the urban planning decision on March 6, 1973 and included the land of this case as indicated in the planned site for the construction of the road; that on June 29, 1966, the front margin and the front margin of the plaintiff was about 100-30 square meters and about 47 square meters in Busan, Dongdong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 1,313 square meters and purchased the above land on April 2, 1974, which was 100-30 square meters and about 47 square meters in which the above land was constructed and sold to 20-do-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 100-7.

2. Judgment on the second ground for appeal

Then, in light of the fact that the Defendant performed sewage facility maintenance works and asphalt packing works from January 5, 2001 to February 20 of the same year, and the present three manle and two telegraphs are installed on the land in this case, and the land in this case is used for general public traffic, including neighboring residents, it is reasonable to view that the present land is under the actual control of the Defendant. Therefore, the Defendant actually controlled the present land from February 21, 2001, when the Defendant performed sewage facility maintenance works and the asphalt packing works for the land in this case, which is the existing road, and made it available for the general public for traffic. In light of the records, the fact-finding and judgment of the court below are just and acceptable, and there is no error of law in the misapprehension of legal principles as to the point of occupancy due to incomplete deliberation or in violation of the rules of evidence, nor in the misapprehension of legal principles as to the point of commencement of possession.

3. Judgment on ground of appeal No. 1

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, shall be the limited condition of the road, i.e., the current state of the road where the State or the local government has previously constructed the road for the land in which the State or the local government actually used for the traffic of the general public, and where the road management authority occupies or performs construction works in the form of the road as a road, or where it actually occupies the road as a controlling entity after performing necessary construction works (see Supreme Court Decision 98Da56232, Apr. 27, 199)

In light of the above legal principles and the facts acknowledged as above, it is proper that the court below held that the land of this case should appraise the amount of unjust enrichment in accordance with the present state, which is a road, since the land category was changed to a road and actually used for the traffic of the general public from around 1987 to February 20, 201, and the defendant occupied and managed it by performing the asphalt packing work, etc. from February 20, 2001. There is no error of law in the misapprehension of legal principles as argued in the Grounds for Appeal, and no precedent cited in the Grounds for Appeal cannot be invoked

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)