[1] The case affirming the judgment of the court below that it is difficult for the owner of a naturally occurring road to waive his right to use and to consider it as a road

[2] The method of calculating the amount of unjust enrichment in a case where the state or a local government actually occupies private land as a road site

[1] The case affirming the judgment of the court below that it is difficult for the owner of a naturally occurring road to waive his right to use and to consider it as a road

[2] In a case where the State or a local government executes necessary construction works for the land which was actually being used as a road for the purpose of the general public, and thereafter possesses a road as a de facto controlling entity, the basic price for calculating the amount of unjust enrichment equivalent to the rent for the said land shall be appraised according to the status limited to the road, i.e., the current state, which is the road.

[1] Article 741 of the Civil Code / [2] Article 741 of the Civil Code

[1] [2] Supreme Court Decision 95Da39946 delivered on November 24, 1995 (Gong1996Sang, 150), Supreme Court Decision 95Da18451 delivered on November 28, 1995 (Gong1996Sang, 162) / [1] Supreme Court Decision 88Da1697 delivered on July 11, 1989 (Gong1989, 1218) / [2] Supreme Court Decision 94Da32085 delivered on September 30, 1994 (Gong194Ha, 2860), Supreme Court Decision 94Da57138 delivered on December 22, 195 (Gong196Sang, 484)

[Defendant-Appellee] Plaintiff (Attorney Cheong-sung, Counsel for defendant-appellee)

Busan Jin-gu (Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Busan District Court Decision 94Na18901 delivered on June 16, 1995

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

The First Ground for Appeal

In a case where a certain private land is naturally used as a road from the past to the general public, the land owner renounced his right to use and benefit, or consented to use as a road, shall be carefully determined by comprehensively taking into account all the circumstances, such as the developments and period during which the land was purchased, the developments and scale of the divided sale of the remaining land, the location and nature of the land used as a passage route, and surrounding environment (see, e.g., Supreme Court Decisions 88Da1697, Jul. 11, 1989; 95Da18451, Nov. 28, 1995). The records reveal that the portion of the land in this case (hereinafter referred to as the road in this case) among the land in this case was offered to the neighboring residents to use and benefit from the road in Busan-gu, Busan-gu, where the land in this case was divided, but it was difficult for the Plaintiff to directly use and benefit from the remaining part of the land in this case to use and benefit from the road in this case, without any access to the upper village located in Busan-gu.

Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles on the waiver of unjust enrichment or the right to use and benefit, as discussed in this paper.

The Second Ground of Appeal

In a case where the State or a local government executes the necessary construction work for the land which was actually used as a road for the general public and has been in possession of a road as a de facto controlling body, the basic price for calculating the amount of unjust enrichment equivalent to the rent for such land is limited to the road, i.e., the current state of the party members established to conduct an appraisal (see, e.g., Supreme Court Decisions 94Da32085, Sept. 30, 1994; 95Da18451, Nov. 28, 1995). As the court below duly determined, if the defendant, from around 1970, was actually in possession of a road and has been actually in possession of a road as a controlling body, the amount of unjust enrichment equivalent to the rent shall be appraised according to the current state, which is the current state of the road.

Nevertheless, the court below calculated the basic price of the land of this case based on the appraisal result by the appraiser of the first instance court who calculated the rent by considering the condition before being transferred to the road on the ground that the plaintiff was not a road at the time of acquiring the land of this case, is erroneous in the misapprehension of legal principles as to the calculation of unjust enrichment, which affected the conclusion of the judgment. Therefore, there is a reason to point out this point.

Therefore, the part of the judgment below against the defendant is reversed, and that 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 Jeong Jong-ho (Presiding Justice)