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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
Reasons
1. The defendant's main reason for appeal citing the judgment of the court of first instance is not significantly different from the argument in the court of first instance, and even if each evidence submitted in the court of first instance is additionally presented to this court, the fact-finding and judgment of the court of first instance are justified.
Therefore, the reasoning of the judgment of this court is as stated in the judgment of the court of first instance except for a partial dismissal as follows. Thus, it is accepted by the main text of Article 420 of the Civil Procedure Act.
2. On the part of the judgment of the court of first instance, the 4th to 6th 10th 6th 10.
A. 1) The gist of the Defendant’s assertion is as follows: (a) the Plaintiff provided each land of this case for the passage of the general public; and (b) renounced the right to use and benefit from each land of this case. Therefore, the Plaintiff cannot seek a return of unjust enrichment against the Defendant; (b) the judgment owner’s waiver of the right to use and benefit from each land of this case is not allowed unless there are special circumstances to the contrary.
If this is allowed, it is against the legal principle of real rights under the Civil Code because only the disposal authority creates a new type of ownership that remains.
Therefore, in a case where private land is used as a road for the traffic of the general public, even if the land owner voluntarily provides part of the land as a road site, barring any special circumstance, it should be understood that the land owner would not waive the right to use and benefit from the road site or temporarily exercise the right to use and benefit from the road site in relation to the persons who have been provided as a site free of charge.
At this time, the interpretation of the intention that the landowner renounces his/her right to use and benefit from the land is based on the details and period of his/her ownership, the details and scale of his/her sale of the remaining land in installments.