Where a local government occupies and uses land as a road site without title, the scope and method of calculating unjust enrichment;

In a case where a local government occupies and uses land owned by another person as a road site without any title, the scope of benefits of a local government as an occupant of land and damages to a landowner is equivalent to the amount calculated by deducting the development gains from rent calculated on the basis of the actual situation at the time of incorporation into a road without considering the situation in which such land was generally incorporated into a road. Even if a landowner was aware that the land was incorporated into a road site at the time of the acquisition of the land and was subject to restrictions on the exercise of private rights as it is occupied and used by a local government, such circumstance does not change. Furthermore, the expected interest rate for calculating the rent of the land shall be determined by considering the rate of national and public bonds, the long-term loan interest rate of a bank, the normal transaction profit rate of a bank, and the loan rate prescribed by the State Property Act and the Local Finance Act, and so long as the land is not “the de facto intention” as prescribed by Article 6-2 (2) 1 of the Enforcement Rule of the Private Road Act or Article 6-2 (2) of the Enforcement Rule of the Act

Article 741 of the Civil Act, Articles 6 and 6-2(2) of the Enforcement Rule of the Public Compensation for Loss

Supreme Court Decision 92Da25045 delivered on November 10, 1992, 94Da16120 delivered on June 28, 1994

Plaintiff-Appellee et al., Counsel for the plaintiff-appellant-appellee

Dongbcheon-si

Seoul High Court Decision 93Na29879 delivered on April 21, 1994

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

The grounds of appeal are examined as follows. The grounds of appeal are examined as to the supplement of the grounds of appeal.

In a case where a local government occupies, uses land owned by another person as a road site without any title, the scope of benefits of a local government as an occupant of land and damages to a landowner shall be equivalent to the amount calculated by deducting the development gains from rent calculated on the basis of the actual situation at the time of incorporation into a road without considering the circumstances generally included in the land, and even if a landowner was aware that the land was incorporated into a road site at the time of the acquisition of land and is subject to restrictions on the exercise of private rights as it is occupied, used, and used by a local government, such circumstance does not change (see Supreme Court Decision 94Da16120, Jun. 28, 1994). Furthermore, the expected interest rate for calculating rent of land shall be determined by taking into account the rate of national and public bonds, long-term loans of a bank, normal real estate transaction profits rate, and loan rates prescribed by the State Property Act and the Local Finance Act, and the determination of the amount of damages shall not be based on the opinion of 190Da15290, supra.

According to the facts duly established by the court below, while the land of this case was actually officially used as a road for the public passage from the previous date to November 1, 1962, it has been incorporated into the road and occupied, occupied, and managed it. It is clear that the land of this case is not a private road under the Private Road Act nor a private road under Article 6-2 (2) 1 of the Enforcement Rule of the Act on Special Cases concerning the Management of Private Road. Thus, the court below should calculate the amount equivalent to the rent under the condition that the land of this case is restricted to the road as a real condition of use at the time of incorporation into the road as the unjust enrichment amount for the land of this case.

However, according to the records, the appraiser of the first instance court calculated the basic price of the land of this case based on the use status of the general land adjacent to the land of this case (the site adjacent to the site of this case) and calculated the development gains by deducting the development gains. Second, under the premise that the land of this case falls under the "private road under the Private Road Act or the "de facto private road" under Article 6-2 (2) 1 of the Enforcement Rule of the Special Act on Special Cases Concerning the Compensation for Public Loss and Loss of Land, the estimated price within the limit of 1/5 of the normal price of neighboring land shall be calculated based on the basic price of the land of this case and the expected interest rate shall be applied to the expected interest rate. The court below adopted the second rent and calculated the unjust enrichment of the land of this case based on the premise that the land of this case falls under the "private road under the Private Road Act or the "de facto private road" under the Enforcement Rule of the Special Act on Special Cases concerning the Settlement of Land, etc.

Therefore, the part of the judgment below against the plaintiff is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)