Where the State or a local government occupies a road as a road management authority or as a de facto controlling entity, the meaning of the expected interest rate in calculating the amount of unjust enrichment equivalent to the rent for the land by the so-called appropriate method multiplying the basic price of real estate by the expected interest rate, and the elements for the determination thereof.

In cases where the State or a local government constructs a road pursuant to the Road Act, etc. and is in fact in the form of a road by performing construction works required as a road management authority, and is in fact in possession of a road as a de facto controlling entity, the expected interest rate refers to the basic price of the relevant real estate and the ratio of the profit expected to be incurred in the acquisition of real estate to be leased, and in principle, the expected interest rate refers to the ratio of the profit expected to be incurred in the acquisition of each individual land, such as the location, type, article, etc. of the relevant land. It is not different depending on the national and public bonds interest rate, bank long-term loan interest rate, general market interest rate, normal transaction profit rate, State Property Act and Local Finance Act. Therefore, as long as the basic price had already been assessed and determined as taking into account the actual situation of the actual use of each individual real estate, it is not necessary to take into account the said actual utilization rate again in calculating the expected interest rate.

Article 741 of the Civil Act; Article 38 of the State Property Act; Article 26 of the Enforcement Decree of the State Property Act; Article 83 of the Local Finance Act; Article 92 of the Enforcement Decree of the Local Finance Act; Article 25 of the Road Act

Supreme Court Decision 96Da6479 delivered on May 28, 1996 (Gong1996Ha, 1954 delivered on June 14, 1994) Supreme Court Decision 96Da55716 delivered on March 14, 1997 (Gong1997Sang, 1104)

Plaintiff (Attorney Park Jong-ho, Counsel for plaintiff-appellant)

Busan Metropolitan City Dong-gu (Attorney Lee Dong-soo, Counsel for defendant-appellee)

Busan District Court Decision 99Na6972 delivered on December 30, 1999

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, where the State or local government established a road pursuant to the Road Act, etc. with respect to the scope of unjust enrichment gained by the Defendant from occupying and using the instant real estate as a road without any legal ground, and occupied or using the road as a road by performing construction of a road pursuant to the Road Act, etc., or performing construction works necessary therefor, and actually occupies the road as a controlling body, the basic price for calculating the amount of unjust enrichment equivalent to the rent for the relevant land shall be assessed according to the actual use of the road as at the time of incorporation into the road, i.e., the current state of the road, which is limited to the actual use as at the time of incorporation into the road. In calculating the amount of unjust enrichment for the land, the expected interest rate, which serves as the element, shall be determined by considering the rate of national and public bond interest, long-term loan interest rates of banks, ordinary interest rates for real estate transaction at the time of general, and the rate of rent prescribed by the State Property Act and the Local Finance Act.

However, in calculating the rent by means of the method under the so-called Industrial Complex Act, which is a basic price of the pertinent real estate and multiplied by the expected interest rate, the expected interest rate refers to the ratio of profits expected to be incurred in the acquisition of real estate to be leased, and in principle, it does not vary according to the location, type, items, etc. of each individual land. As stated in the judgment of the court below, it is determined by taking into account the rate of national and public bonds, long-term loans of banks, ordinary market interest rate, normal real estate transaction profit rate, loan rate under the State Property Act and the Local Finance Act, etc. Therefore, as long as the basic price has already been assessed and decided as taking into account the actual use of each individual real estate in calculating the rent by the above method, it is not necessary to take into account the above actual use situation again (see Supreme Court Decision 93Da62515, Jun. 14, 1994).

However, according to the appraisal report adopted by the court below, the expected interest rate of the land of this case is 7% in the case of actual use of the land of this case, 1% in the case of road, 3% in the case of road or land category, and the basic price vary depending on each case, and there is no reasonable explanation as to all factors to be taken into account in calculating the expected interest rate.

As above, the above appraisal result is already considered in calculating the expected interest rate, and it is difficult to believe it as it is, without any reasonable explanation, because it is not necessary to consider in calculating the expected interest rate due to the actual use of the real estate of this case. However, it is difficult for the court below to adopt the above appraisal result and calculate the amount of unjust enrichment of this case equivalent to the rent without any further consideration on the circumstances, etc. which led to such appraisal result, and it cannot be said that the court below erred by misapprehending the facts against the rules of evidence or failing to exhaust all necessary deliberations. The argument in the grounds of appeal to the same purport is with merit.

Therefore, the part of the judgment below against the plaintiff is reversed, and this 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 Lee Yong-hun (Presiding Justice)