The meaning that a road shall be regarded as a road under the Urban Planning Act in accordance with the Addenda of the Road Traffic Act

Even if the land in question is considered to be a road installed by the urban planning decision under the Urban Planning Act, according to the provisions of the Addenda paragraph (2) of the Urban Planning Act and the provisions of paragraph (2) of the Enforcement Decree of the same Act, this is merely a lawful urban planning decision on the road and the construction of the road is deemed to be lawful, and therefore, if the local government organization uses the land as a road without acquiring ownership

Section 2 of Addenda to the Urban Planning Act, Article 741 of the Civil Act

Supreme Court Decision 76Da992 Delivered on July 26, 1977

[Judgment of the court below]

Attorney Lee Jae-ok, Counsel for the plaintiff-appellant

Seoul High Court Decision 76Na2723 delivered on February 23, 1977

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the defendant are examined.

With respect to No. 1:

On October 6, 1976, the defendant's appeal of this case is legitimate, since the defendant submitted a letter of approval of the Do Governor of Chungcheongnam-Nam, which was filed against the defendant in the first instance judgment against the defendant, at the trial.

The debate is without merit.

With respect to the second ground:

(2) In this case where the plaintiff occupied the land of this case without title from March 1, 1967 to December 31, 1975, the court below decided that the large exhibition street network was the general public notice of shipbuilding under the Joseon City Planning Ordinance of May 12, 1937, but the Daejeon City, which is the executor of the above urban planning project, obtained approval for the renewal of the street network in accordance with the urban planning as stated in the judgment of the court below on October 13, 1965, and obtained approval for the implementation of the plan under the Urban Planning Act of March 1, 1967 or the Urban Planning Act of 197, the land of this case was included into the road site under the above urban planning project of Article 17 of the Enforcement Decree of the Road Act of the former Urban Planning Act of Article 197 of the former Urban Planning Act of Article 197 of the same Act of the same Act of the same Act of 197, which had been approved by the Minister of Construction and Transportation of the same Act of the same Act of 197th.

The Daejeon Daejeon Mayor obtained legitimate authority to occupy and use the land of this case as a road only with the above procedure, and therefore, the plaintiff is only entitled to seek the return of unjust enrichment from March 1, 1967 to the above public notice date, and even if it is possible to claim the return of unjust enrichment from the part after the above public notice date, it cannot claim the return of unjust enrichment under Article 79 of the Road Act.

However, even if the land is deemed to be a road constructed by the defendant market, which is a local government in accordance with the urban planning decision under the Urban Planning Act, the land is deemed to be lawful and the construction of the road is deemed to be lawful, and the land ownership of this case is not deemed to be transferred to the defendant market through the procedure of compensation for losses and the procedure of expropriation of land under the Urban Planning Act. Thus, if the defendant market uses the land as a road without acquiring the right of ownership, etc. of this case under the Urban Planning Act or other relevant Acts and subordinate statutes, unless there are other circumstances, the defendant will be obliged to return the benefits from such use to the plaintiff, barring any other circumstances (the above judgment of the court below 76Da992 delivered on July 26, 197).

[Reference]

Therefore, the judgment of the court below that the plaintiff cannot claim the return of unjust enrichment on the land of this case after the date of the public notice is justified in misunderstanding the legal principles on the Urban Planning Act, etc. Therefore, the appeal pointing this out is with merit. In this regard, the judgment of the court below is not reversed.

Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yu Tae-hee (Presiding Justice)