Plaintiff (Law Firm Subdivision, Attorneys Yoon Jung-tae, Counsel for plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Shin Young-chul et al., Counsel for the defendant-appellant)

November 10, 201

1. The defendant shall pay to the plaintiff 67,48,200 won with 5% interest per annum from July 1, 201 to November 24, 201, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 151,186,200 won and 144,540,000 won among them, 5% per annum from October 8, 2009 to the service date of a duplicate of the complaint of this case from April 26, 2009 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. On September 2, 1989, the Plaintiff acquired the ownership of the Mansan-dong (number 3 omitted) and 2,108.2m2m2 (hereinafter “land number 3 omitted”) in the Dong-gu, Ansan-si and operated a paid parking lot on the said land. The Defendant acquired the ownership of the above Mannam-dong (number 2 omitted), 2,212.7m2 (hereinafter “number 2 omitted”) on March 29, 2004 and its 6m2, and operated the hotel in the said building from around that time, and used the land (number 3 omitted), part of the land (number 3 omitted), which is part of the land owned by the Plaintiff, for the purpose of entering the hotel.

B. From September 2006, the Plaintiff attempted to expand and install the parking lot in the land (number 3 omitted) to the land of this case (hereinafter “instant construction”). The Defendant had concerns that the use of the hotel would cause inconvenience to the Plaintiff, which interfere with the said construction by either removing the asphalt constructed by the Plaintiff or occupying the instant land using the vehicle, and the Plaintiff filed an application for a provisional injunction against obstruction of construction with the Suwon District Court’s Ansan Branch 2009Kahap118, and received a decision to accept it on August 26, 2009.

C. On October 8, 2009, the Plaintiff and the Defendant concluded a lease agreement on the instant land and set the following amount at KRW 2,190,000 per month. On June 15, 2010, the Plaintiff sent a document verifying the content to the Defendant. On June 15, 2010, the Plaintiff urged the Defendant to pay unjust enrichment equivalent to the rent for the period prior to the conclusion of the said lease and the compensation for damages due to the Defendant’s obstruction of construction until June 30, 2010. The above content certification reached the Defendant.

【Ground of recognition】 The fact that there has been no dispute, each entry of Gap's 1 through 7 (including each number), and the purport of whole pleading

2. Determination as to the cause of action

A. The plaintiff's assertion

1) Since the Defendant used the instant land as an entry into a hotel run by himself/herself without any legal ground from March 29, 2004 to October 7, 2009, which was from March 29, 2004 before entering into a lease contract, the Defendant is obligated to return the Plaintiff’s unjust enrichment of KRW 144,540,00 (=2,190,000 per month x approximately 66 months from March 29, 2004 to October 7, 2009).

2) Since the Defendant interfered with the instant construction without good cause, it should pay the Plaintiff the construction cost of KRW 6,646,200 incurred by the Plaintiff as compensation for tort.

3) Therefore, the Defendant shall pay to the Plaintiff the sum of unlawful gains and damages (=144,540,000 won +6,646,200 won) and damages for delay.

(b) Markets:

According to the above facts, the defendant used the land of this case as a passage passage from March 29, 2004 to October 7, 2009, thereby gaining profits from use, and also causing losses to the plaintiff by hindering the construction of this case. Thus, the plaintiff is obliged to pay unjust enrichment and damages.

Furthermore, the amount of unjust enrichment and damages to be returned is considered to be the amount of rent for the real estate. In ordinary cases, according to the results of the appraisal of rent for the period from March 29, 2004 to October 7, 2009 by the appraiser non-party 7, the amount of profit from the possession and use of the real estate is to be the amount of rent for the real estate. However, according to the reasoning of the appraisal of rent for the period from March 29, 2004 to October 7, 2009, the amount of rent for the land of this case is to be recognized to be the total of 60,842,00 won (the plaintiff is to be the 14,540,00 won for the period from March 29, 2004 to October 7, 2009 to be included in the total of KRW 640,000 for the construction project of this case, the plaintiff and the defendant did not have any other evidence to acknowledge that it exceeded the total amount of rent for the construction of this case.

Meanwhile, on June 15, 2010, the Plaintiff urged the Defendant to pay the aforementioned unjust enrichment and damages until June 30, 2010, as seen earlier, and barring any special circumstance, the Defendant is obligated to pay to the Plaintiff damages at each rate of 67,48,200 won (=60,842,00 won + 6,646,200 won) and the amount thereof from July 1, 2010 to November 24, 2011, which is the date the judgment of this court is rendered, to dispute over the existence and scope of the Defendant’s obligation to pay damages at each rate of 5% per annum as prescribed by the Civil Act and 20% per annum as prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

3. Judgment on the defendant's assertion

A. The assertion and judgment of the right of passage over surrounding land

The defendant asserts that the land of this case is almost the only passage through which the defendant can have access to a hotel operated by the defendant, and that the defendant is recognized as the right to passage over surrounding land of this case, so long as the defendant has used the land of this case with legitimate exercise of right, no damage can be caused to the plaintiff, and that the plaintiff obstructed the defendant's exercise of right through the construction of this case, since the defendant prevented the construction of this case, the defendant did not have a duty to return unjust enrichment to

Even if the right of passage over surrounding land is recognized to the Defendant, the Defendant is obligated to compensate the Plaintiff, who is the owner of the land, for the damages equivalent to the rent therefrom, pursuant to Article 219(2) of the Civil Act. Thus, the Defendant’s assertion that there is no obligation to return unjust enrichment from the use of the land of this case is without merit.

Meanwhile, in a case where the right to passage over surrounding land is recognized to the defendant, the defendant can claim removal of the surrounding building items that obstruct the passage. However, according to the overall purport of the statements and arguments set forth in the Evidence Nos. 3 and 5 (including each number), the defendant asserted the right to passage over surrounding land as Seoul Southern District Court 2008Kahap1267, and filed a provisional disposition prohibiting passage over the land of this case against the plaintiff, but the above court had already installed a road on Nov. 25, 2008 and around May 206, the above provisional disposition application was dismissed on the ground that the land of this case was not the only land that can be access from the defendant's land, and the above provisional disposition application is not the land that can be contributed to the defendant's land. The defendant received the above decision and appealed the construction of Seoul Southern Southern District Court 2008Ra2328, 2009Ma610, but all of the reappeals were dismissed, and the plaintiff's assertion that the surrounding land of this case had been constructed after the new road.

B. The assertion and determination of the waiver of exclusive use and right to benefit

The defendant asserted that the non-party 1, non-party 2, and non-party 3, who operated the telecom on the ground, asserted against the plaintiff the right of passage over surrounding land and filed an application for provisional injunction against interference with passage on the ground of Suwon District Court No. 99Kahap152, Dec. 29, 199 (hereinafter referred to as "provisional injunction order of December 29, 199"). The defendant, on May 2006, constructed a new road on the south side of each land (number 1 omitted) of the above (number 2 omitted) and 2,016.2 square meters (number 1 omitted), the non-party 1, non-party 2, and non-party 3, who had been operating the telecompar on the ground, were not entitled to a provisional injunction against passage on the land of this case, and the plaintiff cannot have received the exclusive injunction against the defendant from March 19, 2007 to the point of possession of the land of this case.

However, there is no evidence to acknowledge that the Plaintiff renounced exclusive and exclusive rights to use and benefit from the land of this case and granted access rights to the general public, including the Defendant. Rather, according to the overall purport of each entry and pleading in the evidence Nos. 1 through 8 (including each number) of this case, the Plaintiff, who was subject to the provisional disposition ruling of December 29, 199, did not file an objection against provisional disposition No. 2000Kahap4 with the same court. On May 2006, the Plaintiff started construction of a new road abutting on each of the lands of this case from around September 2006, and the Plaintiff started construction of a parking lot expansion and installation of the parking lot on the land of this case from around September 17, 2006, and even if it was acknowledged that the Plaintiff applied for provisional disposition of this case for the cancellation of provisional disposition of the above land of this case, it did not interfere with the Plaintiff’s claim for provisional disposition of this case for the period of December 29, 199.

C. The assertion and determination that Ansan-si occupied the instant land

The defendant asserts that Ansan-si offered the land of this case to the general public, such as the defendant and the owner of the land (number 1 omitted). Since the subject who occupied, used, and profited from the land of this case is not the defendant but the defendant, the plaintiff cannot seek a return of unjust enrichment against the defendant, not the owner of the land.

In full view of the entries in Eul's evidence Nos. 1 through 4 (including each number), the fact-finding results of the fact-finding results and the whole purport of pleadings on the safe market of this court, the land of this case was designated as a public open area (for the same purpose) according to the Class I district unit plan of the Ansan-si Urban Management Planning (hereinafter "National Land Planning Act"), which is determined and publicly announced by the Ansan-si City Mayor pursuant to the National Land Planning and Utilization Act (hereinafter "National Land Planning Act"), and the dispute between the plaintiff, defendant, etc. surrounding the land of this case continues, it is recognized that Ansan-si was the fact-finding on September 5, 201 by designating the part adjacent to the boundary line of the land of this case as a road and publicly notified (No. 2011-

However, a district unit plan is an urban management plan formulated to rationalize the use of land in part of an area subject to urban planning, improve its function, secure a good environment, and manage the area systematically and systematically (Article 2 subparag. 5 of the National Land Planning and Utilization Act). A landowner is obligated to construct a building or alter its use in accordance with the district unit plan if he/she constructs a building or alters the purpose of use of a building in the district unit plan (Article 54 of the National Land Planning and Utilization Act). It is not deemed that he/she provided the land in this case for the general public through the designation of an open vacant land at Ansan-si. In addition, the Plaintiff sought unjust enrichment due to the possession and use of the land in this case for the period prior to the designation and public announcement of the land as a road. Since the land in this case was designated as

The defendant's argument is that since the defendant used the land in this case together with the land owner (number 1 omitted), the defendant's claim that the scope of unjust enrichment to be returned should be reduced. However, the obligation to return unjust enrichment due to joint possession and use of another's property is an indivisible obligation for repayment of benefits, unless there are special circumstances (see Supreme Court Decision 91Da3901 delivered on October 8, 191, etc.) and the defendant's above argument is without merit.

4. Conclusion

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

[Attachment]

Judges Gangnam-gu (Presiding Judge)