[1] Whether a road actually occupied by the Special Metropolitan City is naturally transferred from a Special Metropolitan City to an autonomous Gu due to the enforcement date of the Local Autonomy Act (affirmative)

[2] The owner of underground part where the current Local Autonomy Act was enforced when the ground is actually occupied and used as a road on the ground as a sewerage system where the sewerage management facility is installed and reconstructed in a private land in Seoul Special Metropolitan City.

[3] Where the same land is divided into the same land and the land is occupied and used without title as a sewerage by the Seoul Special Metropolitan City, the part of the landowner’s claim for return of unjust enrichment for the use of the underground portion in relation to the Seoul Special Metropolitan City (affirmative)

[1] In a case where a local government occupies roads as a person who actually controls roads, the provisions of the Municipal Ordinance of the Special Metropolitan City or Metropolitan City concerning the maintenance and management of roads, such as division of duties of a Special Metropolitan City or Metropolitan City concerning the width of roads, do not follow the provisions of Article 5(1) of the Local Autonomy Act. The Special Metropolitan City or Metropolitan City shall be the person who occupies roads until April 30, 198, before the Local Autonomy Act is enacted, but the person who occupies roads shall be deemed to have been naturally transferred from the Special Metropolitan City or Metropolitan City to the autonomous Gu from May 1, 198, when the Local Autonomy Act was enacted.

[2] Where the Seoul Special Metropolitan City is a sewerage system in which sewage irrigation facilities are installed and the ground is occupied and used as a road and the current Local Autonomy Act is enforced before the current Local Autonomy Act enters into force, the possessor of the land shall be deemed to have been naturally transferred from the Seoul Special Metropolitan City to the autonomous Gu from May 1, 198 when the Local Autonomy Act enters into force on the ground part of the land. However, it is reasonable to view that the Seoul Special Metropolitan City still occupies the land when it is used as a sewerage even after the Local Autonomy Act enters into force separately.

[3] Where the same land is divided into the same land and the land is occupied and used as a sewerage by an autonomous Gu, and the Seoul Special Metropolitan City, which is a sewerage, first of all, as well as profits from the installation of a sewerage rocks and possession of the underground area are equivalent to the rent for the relevant underground portion calculated on the basis that the current status of the use of the land is the site. Then, profits from the construction of a road in fact on the ground by the installation of a road is equivalent to the rent for the relevant ground portion calculated on the ground, based on the situation where the sewerage rocks are already installed on the ground, and the rent for the relevant ground portion is equivalent to the rent for the relevant land portion calculated on the ground, and the autonomous Gu and the Seoul Special Metropolitan City, respectively. Even if the illegal occupancy did not occur, land owner shall be deemed to have suffered corresponding losses, unless Seoul Special Metropolitan City asserts and proves that there is no possibility that there is any profit equivalent to the rent, or any other income.

[1] Article 192 of the Civil Code, Article 5 (1) of the Local Autonomy Act, Article 9 of the Enforcement Decree of the Local Autonomy Act / [2] Article 192 (1) of the Civil Code, Articles 2 (2) and 5 (1) of the Local Autonomy Act, Article 9 of the Enforcement Decree of the Local Autonomy Act, Article 2-2 subparagraph 2 and Article 7 of the former Sewerage Act (amended by Act No. 4782 of August 3, 1994) / [3] Articles 212, 289-2 and 741 of the Civil Code, Article 261 of the Civil Procedure Act

[1] [2] Supreme Court Decision 92Da50454 delivered on May 25, 1993 (Gong1993Ha, 1846), Supreme Court Decision 94Da34401 delivered on October 28, 1994 (Gong1994Ha, 3122), Supreme Court Decision 94Da58216 delivered on June 29, 1995 (Gong1995Ha, 2528), Supreme Court Decision 95Da43686 delivered on June 11, 1996 (Gong196Ha, 2118) / [3] Supreme Court Decision 85Da689 delivered on October 22, 1985 (Gong1985, 1545), Supreme Court Decision 85Da88785 delivered on April 28, 1985 (Gong1985, 1985)

Plaintiff (Law Firm Squa, Attorneys Park Jong-dong, Counsel for the plaintiff-appellant)

[Judgment of the court below]

Seoul District Court Decision 95Na33152 delivered on January 24, 1996

The judgment of the court below is reversed and the case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

According to the facts acknowledged by the court below, Seongdong-gu Seoul ( Address omitted) is owned by the plaintiff since December 27, 1974, and the defendant around February 1975, installed a sewerage hole on the part of 56 square meters, which is a part of the south of the above land (hereinafter referred to as the "the part of the land of this case"), and has been reconstructed, since around February 27, 1975, the underground part of the land of this case is used as a sewerage with a width of 3 meters and the ground is used as a road with a width of 4 meters.

Based on the above factual basis, the Plaintiff sought a return of unjust enrichment equivalent to the rent for the period from September 4, 1992 to March 5, 1995 on the ground that the Defendant occupied and used the instant land without any title.

According to the reasoning of the judgment below, since the defendant's possession of the land portion of this case is actually possessed as the owner of possession, the person occupying the road constructed on the ground of the part of this case after May 1, 198, the enforcement date of the Local Autonomy Act is not the defendant, but the non-party, Seongdong-gu Seoul Metropolitan Government, which is an autonomous Gu, and as long as the plaintiff is unable to use the land portion of this case because Seongdong-gu, Seoul Metropolitan Government occupied the ground of this case as a road, and as long as the plaintiff is unable to use the land portion of this case, the court below pointed out that the plaintiff applied for appraisal only with regard to the amount equivalent to the rent in the case where the land portion of this case is used as a road (the court below ruled that the plaintiff applied for appraisal as to the amount equivalent to the rent in the case where the land portion of this case is used as a road). Thus, even if the defendant occupies it while maintaining and managing the sewerage installed on the underground part of this case, it cannot be deemed that the damage, such as sewage, etc., was additionally caused to the plaintiff.

First of all, there is no evidence to view that a road on the ground of the part of the instant land was established under the relevant Acts and subordinate statutes, such as the Road Act, and at the time of the construction of the road, the type of occupation of the defendant can be considered as the person who actually occupies the said road. In the case where the defendant who is a local government actually occupies the road as the person who actually occupies the road, the defendant shall be the person who occupies the road until April 30, 198, which was before the Local Autonomy Act was enacted pursuant to Article 5 (1) of the Local Autonomy Act, without considering the provisions of the Seoul Special Metropolitan City Ordinance on the Maintenance and Management of the said road, such as division of duties between the defendant and the autonomous Gu. However, from May 1, 1988 when the Local Autonomy Act was enacted, the person who occupies the road shall be deemed to have been naturally transferred from the defendant to the autonomous Gu (see, e.g., Supreme Court Decisions 92Da50454, May 25, 1993; 94Da168168, Jun. 196.

However, according to the records, the plaintiff does not have a ground for claim that the defendant occupies the part of the land of this case as a road, but it is evident that the defendant occupies the part of the land of this case by installing a sewerage rocks facility and covering the above part (see, e.g., preparatory documents, Oct. 16, 1995, and preparatory documents, etc., Oct. 3, 1996). The court below acknowledged that the defendant occupied the part of this case while maintaining and managing the sewerage installed under the ground of this case. Since there was no circumstance to deem that the plaintiff was replaced by the managing body of the sewerage until March 5, 1995 for the return of unjust enrichment, it is reasonable to deem that the land of this case was occupied by the non-party of Seongdong-gu Seoul Metropolitan Government as a road, and that the defendant occupies it as a sewerage separately from the possession of the part of the land of this case by the non-party of this case after the enforcement of the Local Autonomy Act.

However, in cases where a local government occupies and uses another's land without the title as a site for a road, the scope of benefits and losses of a local government as a land occupant is equivalent to the amount calculated by deducting development gains from the rent calculated on the basis of the actual conditions of use at the time such land was incorporated into the road (see, e.g., Supreme Court Decisions 95Da18451, Nov. 28, 1995; 95Da45149, Dec. 22, 1995; 96Da6479, May 28, 1996; 96Da6479, May 28, 1996; 200Da4789, May 28, 1996; 200Da3289, Oct. 22, 1985; and 300Da4789, Apr. 28, 201).

In this case, according to the court below's findings, since the defendant constructed a sewerage rock and constructed a road in effect by breaking the above surface, the profits the defendant initially obtained by occupying the ground and the underground of the land of this case can be viewed by dividing into the following two parts by step-by step-by step-by part of possession. ① First, the profits the defendant gains from the defendant obtained by installing and holding a sewerage rock and occupying the underground part above the ground should be equivalent to the rent of the relevant underground part calculated based on the fact that the status of use of the land of this case is the site. ② Subsequent, the profits the defendant gained by installing and occupying the underground part above the ground part should be equivalent to the rent of the relevant underground part calculated based on the situation where the sewerage rock has already been installed at the ground of this case's land of this case. Since the above ground part (hereinafter) is transferred to the non-party Seoul Special Metropolitan City, Seoul Special Metropolitan City and the defendant without any title, if there are no special circumstances that the plaintiff did not gain any profits or losses, such as occupancy, use, and other profits.

However, the court below did not have any deliberation on the special circumstances that there is no room for the Plaintiff to incur any profit equivalent to rent or any other income with respect to the underground occupancy of the land of this case, and concluded that the Plaintiff was unable to use the land of this case without distinguishing the ground part from the underground part, on the ground that Seongdong-gu Seoul Metropolitan Government occupied the land of this case as a road without any deliberation. Further, the court below concluded that even if the Defendant occupied the land of this case while maintaining and managing the sewerage installed in the underground part on the ground that the Plaintiff did not particularly use the underground part of this case, it cannot be deemed that the additional damage, such as load, etc., was caused to the Plaintiff even if he occupied the land of this case while maintaining and managing the sewerage installed in the underground part. It is clear that the court below erred in the misapprehension of legal principles as to the occurrence of damage by the landowner, and it did not exhaust all necessary deliberations by misapprehending the burden of proof as to the special circumstances that there is no room for the occurrence of other income, and that such illegality is affected by the conclusion of the judgment.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)