Where land owned by another person is incorporated into a park site and liability for return of unjust enrichment;

The Ministry of Construction and Public Notice only has been confirmed and publicly announced as the Busan Urban Planning Park site, but it cannot be exclusively occupied as a park site by laying the steel network on the land owned by others. Therefore, the Busan City is obligated to return unjust enrichment on the rent to the land owner.

Article 7 of the Urban Park Act, Article 26 of the Urban Planning Act, Article 29 of the Urban Planning Act, Article 30 of the Urban Planning Act

【Court Decision 80Da790 decided July 8, 1980 (Law No. 1356)

Plaintiff

Busan City

Busan District Court (79Gahap240)

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant shall pay 8,490,397 won to the plaintiff.

The costs of lawsuit shall be borne by the defendant, and a judgment of provisional execution

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

별지목록기재의 이사건 토지가 원고 소유인 점에 관하여는 피고에 있어 이를 명백히 다투지 아니하므로 자백한 것으로 볼 것이고, 당원의 현장검증결과와 원심감정인 소외 1의 측량감정결과 및 변론의 전취지를 모아보면 피고시는 이사건 토지중 원판결첨부도면표시 (ㄱ), (ㄴ), (ㄷ), (ㄹ), (ㅁ), (ㅂ), (ㅁ¹), (ㅂ¹), (ㅅ¹), (ㅇ¹), (ㅈ¹), (ㄹ²), (ㅁ²), (ㅂ²), (ㅇ²), (ㅋ²), (ㅇ¹), (ㅈ¹), (ㅊ¹), (ㅋ¹), (ㄹ¹), (ㄱ)의 각 점을 순차 연결한 선내부분 1,764평을 1965. 4. 21. 이래 부산 동래구 온천동 소재 금강공원용지로 편입시켜 철조망을 치고 배타적으로 점유 사용하고 있는 사실을 인정할 수 있고 반증없으며, 한편 위 지역이 1965. 4. 21. 건설부고시 제1544호로서 부산도시계획 공원용지로 확정 고시된 사실만 가지고서는 피고시의 위 토지점유가 정당한 원인(적법한 권원)에 기한 것임을 인정하기에 부족하고 달리 피고 시가 공원법 및 도시계획법 소정의 절차를 거쳐 위 토지를 점유하고 있음을 인정할 증거없다.

Therefore, the defendant City without any justifiable ground, occupied the above land at KRW 1,764, thereby incurring losses from the rent for the above land and gaining the same amount of profit. Thus, the plaintiff is obligated to return the rent for the above land. Thus, according to Article 36 of the Park Act, since the exercise of private right is restricted to the park site, the defendant cannot seek the return of unjust enrichment based on the rent for the above land. (2) Unless it is contrary to the purpose of the park, the land owner recommended the exercise of private right such as rent, occupation, installation of facilities, etc. and exempted the use of and profit from the above land. Thus, the plaintiff's claim for this case is an objection to the purport that it is groundless, so there is no provision on the restriction of the exercise of private right to the above land under Article 36 of the Park Act, and the defendant shall not be allowed to return the rent for the above land to the land without any justifiable reason or to return it to the land within the extent that it is not contrary to the purpose of the park under Article 16 of the same Act.

Furthermore, as to the scope of the defendant's return of unjust enrichment, according to the appraisal result of the non-party 2, the rent for each year based on the premise that it is a park site with respect to 1,764 square meters, the amount for 1975 square meters is 846,720 won, the amount for 1,270,080 won for 1976, the amount for 1,481,760 won for 1977, the amount for 2,434,320 won for 1978, the amount for 2,646,00 won for 1979 (52,920,00 x 6/1003,100 x 103,175 x 97,197, and 197, the defendant shall not have any other duty to verify evidence for 360 won or more for 197,200 won for the above appraisal and evidence for 1971,201 or more for the plaintiff

Therefore, the plaintiff's claim of this case seeking the return of the above money to the defendant shall be accepted with merit, and since the original judgment is justified with the conclusion, this appeal is dismissed, and the costs of appeal shall be borne by the defendant who has lost, and it is so decided as per Disposition.

Judges fixed ticket (Presiding Judge) Mobile Engines