(영문) 서울북부지방법원 2019.11.08 2018가단143797

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(영문) 서울북부지방법원 2019.11.08 2018가단143797

부당이득금

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1. The plaintiff's claim of this case is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On December 5, 2017, the Plaintiff completed the registration of ownership transfer based on inheritance on September 10, 200 regarding the instant road that was owned by the deceased C (hereinafter “the deceased”).

B. The instant road is in the same shape as the attached drawing 1, and as a passage connected to a neighboring public road (D road and E road), it is offered to the general public for use, and is packed in the same sidewalk block as the delivery portion of an adjacent public road.

2. The parties' assertion and judgment

A. The gist of the parties’ assertion is to seek restitution of unjust enrichment equivalent to the rent for the ten-year rent from November 14, 2008 to November 13, 2018 and the rent for the ten-year rent from November 14, 2018 to November 14, 2018, calculated by the ratio of KRW 212,13 per month from November 214, 2018 to the completion date of delivery of the road.

As to this, since the deceased renounced his exclusive right to use and benefit from the road of this case, the plaintiff, the inheritor, cannot seek the return of unjust enrichment against the defendant, and the plaintiff, knowing that the road of this case was provided to the public for more than 30 years, pointing out that filing a claim for return of unjust enrichment and claiming return of unjust enrichment are contrary to the good faith principle.

B. In a case where the owner of the land owned by him/her provides the land to the general public, such as a road and a site laid underground, the following are comprehensively considered: (a) details and period of possession of the land; (b) the details and scale of the owner’s provision of the land for the use of the public; (c) the existence of the owner’s interests or benefits arising from the provision of the land; (d) the location and form of the relevant part of the land; and (e) the relationship with the neighboring land and surrounding environment; and (e) comparative balancing between the ownership guarantee of the landowner and the public interests

유사 판례

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