(영문) 대구지방법원 김천지원 2012.6.14.선고 2010가단14823 판결

(a) pay 16,472,515 won and the interest thereon at each rate of 5% per annum from March 15, 2011 to June 14, 2012 and 20% per annum from the following day to the date of full payment;

B. From August 3, 2011, the amount calculated by the ratio of KRW 264,00 per month to the end of the occupation of the Plaintiff (Counterclaim Defendant) or the end of the loss of the ownership of the Defendant (Counterclaim Plaintiff) on the 99m road is paid.

3. The defendant (Counterclaim plaintiff)'s remaining counterclaim is dismissed.

4. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Defendant (Counterclaim Plaintiff).

5. Paragraph 2 can be provisionally executed.

Purport of claim

1. The Defendant (hereinafter referred to as the “Defendant”) will implement the procedure for the registration of ownership transfer on May 11, 1994, for the completion of the acquisition by prescription against the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) on the ground of the completion of the acquisition by prescription on May 11, 1994.

2. Counterclaim. The Plaintiff shall pay to the Defendant the amount of KRW 60,00,000 and the amount calculated at the rate of KRW 20% per annum from the day following the delivery of a copy of the instant counterclaim to the day of full payment. The Plaintiff shall pay the amount calculated at the rate of KRW 1,00,00 per annum from March 1, 201 to the day of full payment.* The amount calculated at the rate of KRW 9,00 per month from March 1, 201 to the day of completion of the Plaintiff’s possession or the day of

Reasons

1. Facts of recognition;

A principal lawsuit and a counterclaim shall be deemed simultaneously.

A. On June 25, 1921, the registration of ownership transfer is completed on April 14, 2008, by the Defendant, who is the heir of the mother on November 4, 1936, on the ground of the family inheritance on November 4, 1936.

B. The original land category of the instant land was changed from May 29, 1958 to the land category was changed from May 29, 1958 to the land category, and on April 14, 2008, from the registration payment, the land category was changed to the “road.” Since then, the instant land was incorporated into the lawsuit according to the old-U.S. Urban Planning (2j) No. 114 of May 11, 1974 as of May 11, 1974 as of May 11, 1974 as of May 15, 2008, the Gyeong-gun-gun, U.S. Special Metropolitan City occupied and used the instant land as a road for the public use of the traffic of the general public and the Plaintiff continued to occupy and use the instant land as a road for the public use.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 5, 9, 10 (including each number), the purport of the whole pleadings

2. Determination on the main claim

A. The plaintiff's assertion

Since May 11, 1974, the land of this case was assigned to a road by the cadastral public notice and possessed and managed it as a road by the Gyeongsan-gun. After that time, the Gyeongsan-gun of the Gyeongsan-gun of the Gyeongsan-gun succeeded to the Gyeongsan-gun on February 15, 1978 and continued to occupy and use the land of this case as the owner's intention. Accordingly, the acquisition by prescription for the land of this case was completed on May 11, 1994, when 20 years elapsed from May 11, 1974, which was the starting date of possession.

B. Determination

If the nature of source of possessory right of real estate is not clear, the possessor is presumed to have occupied the land in good faith, peace, and public performance pursuant to Article 197(1) of the Civil Act, and such presumption applies likewise to cases where the State or a local government occupies the land, which is the managing body of the cadastral record, etc., even if the State or a local government fails to submit the document regarding the procedure for acquiring the land that asserts the completion of acquisition by prescription, it cannot be readily concluded that the State or a local government occupied the land with the knowledge that there is another person registered as the owner in the cadastral record, etc. due to the failure to submit the document regarding the procedure for acquiring the land, etc., on the ground that the cadastral record, etc. of the land was lost before June 25 or for any other reason, or that the State or a local government was otherwise registered as the owner in the cadastral record, etc.

However, unlike such cases, in a case where the State or a local government has incorporated private land into a road site without a specific title that can occupy the land, such as taking the procedure for acquiring the land for public use as prescribed by the Local Finance Act or the State Property Act, such as the payment of its own or donation, or obtaining the consent of its owners, unless there are circumstances where it is difficult to deem that the State or a local government occupied the land without a permit knowing the fact that the acquisition of ownership does not meet the legal requirements, it shall be deemed that the presumption of autonomous possession was broken (see, e.g., Supreme Court Decision 2009Da32553, Sept. 10, 209). This case’s health stand back to the case, and it was deemed that the owner of the land of this case occupied or used the land for public use from May 11, 1974; however, the land of this case was lawfully recovered from the old land at the time of the acquisition of the land’s land or the construction of the land for public use, etc. other than the land’s construction of the State Property Act.

In light of the circumstances, it is difficult to view that the possibility of lawful acquisition of ownership falls under "where there is a circumstance that can not be ruled out."

Therefore, since possession of the land of this case by the Gyeongbuk-gun and the plaintiff who succeeded to such possession was done without a certain title to possess the land, the presumption of autonomous possession was broken. There is no evidence to prove otherwise that the plaintiff occupied the land of this case with the intention to own the land of this case. Thus, the above assertion by the son cannot be accepted on a different premise.

3. Determination on a counterclaim

A. Return of unjust enrichment

The facts that the Defendant is the owner of the instant land, and the facts that the Plaintiff occupied and used the instant land are as seen earlier, so insofar as the Plaintiff fails to assert and prove a legitimate title to occupy the instant land, he/she shall return the benefits arising from the possession and use of the instant land to the Defendant.

B. Judgment on the Plaintiff’s assertion

(1) The plaintiff's assertion

In the process of dividing the instant land from the mother parcel number and using it as a road for the general public, the Defendant may be deemed to have renounced ownership or renounced exclusive right to possession of the instant land. Therefore, the Defendant’s counterclaim claim is unreasonable.

(2) Determination

In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, in interpreting that the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or waives exclusive and exclusive rights to use the land, the circumstances and the holding period that he/she owns the land in question, the details and scale of selling the remaining land in installments, the location and nature of the land to be used as the road, the relationship with the neighboring land, the surrounding environment, etc., as well as the degree that he/she contributes to the relevant land for the effective use and profit-making of the remaining land partitioned and sold (see, e.g., Supreme Court Decision 2005Da31736, May 12, 2006).

According to the statement of evidence Nos. 7 and 8 of this case, registration of ownership transfer has been completed on May 4, 1917 for the land of the Gu-Si, Gu-dong, Hong-dong, Pyeong-dong, 1309 (hereinafter referred to as "P land before division"). The registration of ownership transfer has been completed on June 25, 1921 under the name of the mother-si, and the registration of ownership transfer has been completed on November 28, 1927. After the completion of the registration of ownership transfer for the land of this case on November 4, 1936, the defendant completed the registration of ownership transfer for the land of this case after the completion of the registration of ownership transfer after the completion of the registration of the land of this case on November 4, 1936, and the defendant completed the registration of ownership transfer for the land of this case after the completion of the registration of ownership transfer after the completion of the registration of the registration of the land of this case on November 14, 1936.

However, regarding the following circumstances, i.e., the land after division, as shown in the argument of this case

As of December 12, 1938, when completing the registration of ownership transfer under the name of the defendant, the defendant was under 6 years of age, and there was no evidence to deem that the land of this case was used for the general public’s passage from November 28, 1927, the time of division of the above land, and rather, the public notice was given to incorporate the land of this case into litigation on May 11, 1974, and the land category was changed to "road" when the registration payment for the land of this case was made on April 14, 2008. The above circumstance alone alone alone is insufficient to presume that the defendant, the owner of the land of this case, provided the land of this case to a road, provided the neighboring residents or the general public with the right to free access to the land of this case, or renounced the exclusive right to use and benefit from the land of this case, and there is no evidence to acknowledge otherwise. Thus, the plaintiff’s above assertion cannot be accepted.

(1) The basic price of land for calculating the amount of unjust enrichment equivalent to the rent for the land occupied and used by the State or a local government as a road, where the State or a local government established a road under the Road Act, etc. for the land in which the State or a local government actually used for the traffic of the general public and occupies or occupies a road as a de facto controller after performing construction works in the form of a road, or performing construction works necessary for the traffic of the general public, shall be appraised as limited to the road, i.e., a road, according to the current status. In a case where the State or a local government occupies a road only for the land previously used for the traffic of the general public, the actual situation at the time of its incorporation shall not be considered

However, when it becomes objectively clear that the actual state of use of the land in question has changed like the surrounding land even if the road has not been constructed in light of the location of the land in question and the development and utilization status of the surrounding land after the incorporation into the road, the price of the land should be assessed by presenting the changed state of use and then the amount of unjust enrichment equivalent to the rent should be calculated based on this (see Supreme Court Decision 2009Da97062, Mar. 25, 2010).In this case, the health zone of this case was the "the original land category" but the land category was changed to the road on May 29, 1958 and the land category was changed to the road on May 11, 1974. Accordingly, the amount of unjust enrichment equivalent to the rent for the land in this case should be calculated based on the Act on Acquisition of Land and Compensation for Public Works at the time of incorporation into the road.

On the other hand, according to the appraiser lecture-the appraisal result, where the land of this case from June 21, 2001 to December 20, 2006 is unregistered land, the rent can be acknowledged as follows.

A person shall be appointed.

In addition, the monthly rent after August 3, 201 for the instant land would be at least the same amount as KRW 264,00, which is the monthly rent from March 1, 201 to August 2, 2011, unless there are special circumstances.

Therefore, the Plaintiff is obligated to pay to the Defendant unjust enrichment equivalent to the annual rate of KRW 264,00 per annum under the Civil Act from March 15, 2011 to June 14, 2012, which is the date of the imposition of a substantial amount of the Plaintiff’s objection as to the existence and scope of the obligation to perform, as requested by the Defendant, from March 15, 201, the delivery of a copy of the counterclaim of this case to the Defendant, and the delay damages calculated at the rate of KRW 20 per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment. The Plaintiff is obligated to pay unjust enrichment equivalent to the annual rate of KRW 264,00 per annum from August 3, 2011 to the date of the final settlement of the rent of this month or the date of the Plaintiff’s possession or the Defendant’s loss of ownership.

(2) On the other hand, with respect to the appraisal result of appraiser lectures--- the appraisal result of the land price of this case, the defendant asserts that the standard amount compared with the appraisal result of the appraisal of the land value of this case should be KRW 118-9, Dong-si, Dong-si, Seoul, which is the neighboring land of this case, and the actual transaction value should be applied, not the officially announced land price, and the rent should be calculated by applying the expected interest rate of 3 to 4% per annum applied to the "in the business and sales facilities in commercial land". However, the above appraiser determined the base value of the land of this case at an unreasonably low price and assessed the rent remarkably low by applying the wrong expected interest rate, so the above appraisal result should be excluded.

Therefore, the appraiser’s appraisal result should be respected unless there exist significant errors such as the appraisal method against the rule of experience or unreasonable (see Supreme Court Decision 2006Da67602, 67619, Jul. 9, 2009). We examine whether the appraisal result in the appraiser’s lecture in this case is considerably erroneous, such as that the appraisal method is contrary to the rule of experience or unreasonable.

Unless there are special circumstances, comparative standards in the appraisal of land shall take precedence over the specific use area within the urban planning zone, and shall take precedence over the actual land category pursuant to the actual situation of use outside the urban planning zone. However, if there is no such land, considering the characteristics of the land category, use, surrounding environment, location, etc., the natural and social conditions should be designated as identical or most similar to the land subject to appraisal. Even if there is a little difference between the specific use area or surrounding environment, etc. of the reference land and the land subject to appraisal, it cannot be concluded that the selection of the reference land itself is erroneous (see Supreme Court Decision 2006Da64627, Sept. 10, 200), and the selection of the reference land is not illegal merely because there is a considerable difference from the land subject to appraisal (see Supreme Court Decision 2009Da97062, Mar. 25, 2010).

In addition, the expected interest rate that serves as the element in calculating the amount of unjust enrichment of land shall be determined by taking into account the interest rate on national and public bonds, the long-term loan interest rate of banks, the general market interest rate, the normal real estate transaction profit rate, the loan fee rate prescribed by the State Property Act and the Local Finance Act (Supreme Court Decision 2009Da97062 Decided March 25, 2010).

In full view of the results of appraisal and assessment of the instant land value, ① the appraiser selected a relatively far distance from the instant land as a comparative standard place with a view to 104m high-speed 100, 100,000 old-si, Seoul, which is similar to the current use, specific use, road traffic, land category, surrounding environment, etc.; ② the method of assessing the rent by applying the hostile method, which is the method of calculating the rent by adding the cost necessary to the amount calculated by multiplying the basic price of the object at the time of the appraisal by the expected interest rate, to the amount calculated by continuously leasing the object at the time of the appraisal; ③ the method of calculating the rent by examining the level of rent for similar real estate in neighboring areas; ③ the officially announced price of the comparative standard place is not immediately adopted as the basic price of the instant land; ③ the price of the instant land calculated based on the officially announced land price of the instant land at the time of the comparison standard place differs from the normal compensation rate and normal price change; ④ the price of the instant land at the time of regional sale and sale; ④ the price of the instant land at the local level.

According to the above facts of recognition, it is difficult to see that the appraisal result of the appraiser's lecture in this case is against the rule of experience or is considerably erroneous, such as the appraisal method is unreasonable, and the defendant's above assertion against this is not acceptable.

4. Conclusion

Therefore, the plaintiff's main claim of this case is dismissed as it is without merit, and the defendant's counterclaim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges

Judges Yang Jin-soo

Note tin

1) LAD - The appraisal report contains only the monthly rent for this period without the statement of the monthly rent for that period, but is subject to the same appraisal report.

The unit price of land for the period from March 1, 201 to August 2, 2011 shall be calculated as 1.6 million won and the unit price of land for the period from March 1, 2006 to February 28, 2007 shall be calculated as 1.6 million won.

Recognizing that it is the same amount as A. As of March 1, 201, the monthly rent for the period of August 2, 201 also on March 1, 2006 during the period of February 28, 2007

It is reasonable to view that it is the same amount as monthly rent of KRW 264,00.

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