Where the private land is occupied as a road without title, the scope of return of such unjust enrichment;

If a private land without a title is occupied by a road without a title, the amount of unjust enrichment to be returned shall be calculated by deducting the development gains from the amount equivalent to the rent, and otherwise, the amount of damages equivalent to the rent shall not be calculated in accordance with the Land Expropriation Act, the Public Compensation for Loss, and the Enforcement Rule.

Article 741 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 2 others, Counsel for plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 2 others, Counsel for defendant-appellant-appellee)

Attorney Park Jae-il, Counsel for the defendant-appellant

Seoul High Court Decision 90Na33921 delivered on November 15, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, we affirm the reasoning of the judgment below that the Defendant: (a) designated and publicly notified the instant land as a prospective road site in urban planning; and (b) opened a road on the above land before April 1, 1985 without going through the procedures for expropriation, use, etc. under the Land Expropriation Act and provided it for the passage of the general public as a roadway and delivery; and (c) without any evidence, it did not comply

There is no illegality of finding facts, and there is an error of misunderstanding of legal principles or lack of reason such as theory of lawsuit.

It cannot be said that there is no reason to say.

The lower court did not recognize that the Defendant occupied the instant land solely on the grounds that the instant land was designated and publicly announced as a prospective road site by the decision of urban planning, or that there was a cadastral announcement thereof, and recognized the Defendant’s possession by recognizing the fact that the Defendant actually opened a road on the instant land and provided it to the general public as a roadway and India, and whether the said road was constructed in accordance with lawful procedures does not affect the recognition of possession. The same holds true as to whether the instant land’s land’s category was converted into a site or a road

In addition, the court below's rejection of the evidence No. 1 (fact-finding report) cannot be deemed to violate the rules of evidence, and the precedents of the theory of lawsuit are not appropriate in this case. Therefore, there is no reason to discuss.

On the second ground for appeal

If the facts are found by the court below, it is just for the court below to order the defendant to return the unjust enrichment on the basis of the premise that the defendant is liable to return the unjust enrichment on the rent basis, and to calculate the rent after deducting the development gains, and in view of the private roads stipulated in Article 6-2 of the Enforcement Rule of the Public Compensation for Losses and Compensation of Losses Act, etc., if the defendant expropriates the land in this case, it is not necessary to seek the estimated price within a half limit of the normal market price of the neighboring land pursuant to the Land Expropriation Act, the Special Act, and the Enforcement Rule

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-chul (Presiding Justice)