2018Da213101 Unlawful gains

A

Gwangju Metropolitan City Dong-gu

Gwangju District Court Decision 2017Na57782 Decided January 17, 2018

July 12, 2018

The judgment below is reversed, and the case is remanded to the Gwangju District Court.

The grounds of appeal are examined.

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, by constructing a road under the Road Act, etc. with respect to the land in which the State or a local government actually used for the traffic of the general public, possesses or performs construction works necessary for the traffic of the general public, and thereafter occupies a road as a de facto controlling body, it shall appraise the land as limited to the road, i.e., a road, and where the State or a local government occupies a road only when it actually used for the traffic of the general public, it shall conduct an appraisal according to the actual state of use as at the time of its incorporation without considering the circumstances incorporated into the road (see, e.g., Supreme Court Decision 2001Da60866, Apr. 12, 2002).

2. The lower court determined that it is reasonable to calculate the amount of unjust enrichment for occupying and using the instant land on the basis of “site”, inasmuch as there is no evidence to acknowledge that the instant land was actually used for the general public’s traffic since its land category was changed from the site to the road.

3. However, the lower court’s determination is difficult to accept for the following reasons.

In light of the aforementioned legal principles and records, in order to calculate the amount of unjust enrichment arising from the Defendant’s occupation and use of the instant land as a road, first of all, the point at which the Defendant actually occupied the instant land after specifying the time when the Defendant commenced possession of the instant land, and then whether the instant land was actually officially used for the general public’s traffic at the time of the commencement of possession, and whether the actual status of use thereof remains, should be examined to determine whether to calculate the basic price of the instant land

However, the lower court assessed the price of the instant land on the ground that there is no evidence to recognize that the land category was changed to a road and was actually being used as a road at the time when the land category was actually used for the general public’s traffic in light of the actual use of the instant land at the time of the commencement of possession of the Defendant’s land at that time. In so determining, the lower court erred by misapprehending the legal doctrine on calculation of unjust enrichment, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing out that the Defendant did not review the actual use of the instant land at the time of the commencement of possession is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Go Young-young

Justices Kim Jong-il

Justices Cho Jae-sik in charge