2014Na53420 Unlawful gains

A

Magyang-si

Gwangju District Court Decision 2013Gau76435 Decided September 26, 2014

December 10, 2014

January 30, 2015

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

3. A correction of "2,349,388 won" in paragraph 1 of the judgment of the court of first instance shall be 2,349,061 won.

1. Purport of claim

The defendant shall pay to the plaintiff 9,397,553 won with 5% interest per annum from the day following the day of service of the complaint of this case to the day of pronouncement of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 7,048,165 won with 5% interest per annum from the day following the delivery date of the complaint of this case until the pronouncement date of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of complete payment.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Whether a claim for return of unjust enrichment is established

The Plaintiff is the owner of the land of 172m2, C road 43m2, D road 10m2, 17m2, E road 17m2, F road 152m2, G road 165m2 (hereinafter “instant land”). There is no dispute between the parties concerned regarding the fact that the Defendant installed and used the instant land. Therefore, barring any special circumstance, the Defendant is obligated to return unjust enrichment equivalent to the cost of using the instant land to the Plaintiff, barring any special circumstance. (On the other hand, the Plaintiff is asserting that unjust enrichment is sought to transfer the land if it falls short of the amount claimed by the Plaintiff; however, the Plaintiff did not follow additional procedures for the claim for unjust enrichment and did not separately determine this part).

In this regard, the defendant asserted that the plaintiff did not pay the land of this case, but there is no evidence to acknowledge this.

Meanwhile, the defendant alleged that the plaintiff had lent a loan to the defendant free of charge on the grounds of the plaintiff's statement in the lawsuit of this case. However, the plaintiff's statement is merely the purport of allowing village residents to freely pass the land of this case, and it does not appear to have lent a loan to the defendant free of charge in relation to the defendant. Thus, there is no other evidence to acknowledge the defendant's assertion.

2. Scope of unjust gains;

According to the appraisal result of the appraiser H by the court of the first instance, the amount of unjust enrichment equivalent to the rent from September 4, 2008 to May 8, 2014 for the instant land sought by the Plaintiff is KRW 2,349,061 (the aggregate of the amount applying the expectation rate of 2% according to the appraisal report, and the court of the first instance stated the amount as KRW 2,349,38, but it appears to be an error in calculation).

In this regard, the Plaintiff asserts that the expected interest rate of 8% per annum should be applied, but it is difficult to accept it in light of all the circumstances, such as the appraisal result and the land category at the time of the change of land category of the instant land, and the time and current status of neighboring land are farmland.

Therefore, the defendant is obligated to pay to the plaintiff 2,349,061 won and 20% interest per annum under the Civil Act from September 13, 2013, which is the day following the delivery date of the complaint in this case, to January 30, 2015, which is the date of the judgment of the appellate court in this case, to the day of the decision of the appellate court in this case, and to pay to the plaintiff 5% interest per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is just, the appeal of the plaintiff and the defendant is dismissed as it is without merit, and "2,349,388 won" in the decision of the court of first instance is corrected as "2,349,061 won" in the decision of the court of first instance as it is obvious that it is an error in calculation. It is so decided as per Disposition.

Judge Song-dae (Presiding Justice)

Judges Han-ok

Judges Gong Jin-jin