[1] The standard for determining whether a landowner may be deemed to waive his/her exclusive and exclusive right to use and benefit from the land in a case where the landowner provides the land owned for public purposes, and whether the landowner may file a claim for return of unjust enrichment against others who occupy and use the land (negative in principle)

[2] In a case where Party A voluntarily applied for land division and land category change to a road to be incorporated into an extended road as part of a village structure improvement project, and Party B applied for a divided land division, and provided the road to the public for an extended road under the management of Party B, and Party A sought a return of unjust enrichment equivalent to the rent from the use of the relevant land for the land, among the land divided against Party B, whose land category has not been changed to a road due to procedural error, the case holding that the lower court erred by misapprehending legal principles, even though Party A voluntarily applied for a land division to increase the utility value of the adjacent land, and was unable to exercise the exclusive and exclusive right to use and benefit from the land by providing the divided land to the extended road site, in light of all the circumstances

[1] Articles 211 and 741 of the Civil Act / [2] Articles 211 and 741 of the Civil Act

[1] Supreme Court en banc Decision 2016Da264556 Decided January 24, 2019 (Gong2019Sang, 531)

Plaintiff (Law Firm Dongbuk Asia, Attorneys Jeon Tae-tae et al., Counsel for plaintiff-appellant)

Kimpo-si (Law Firm LLC, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

Incheon District Court Decision 2014Na56478 Decided August 13, 2015

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Where a landowner has provided his/her land to the general public, such as a road and a site laid underground, the following circumstances are comprehensively considered: (a) the owner of the land; (b) the details and period of holding the land; (c) the details and scale of the owner’s provision of the land for the use of the public; (d) the interest or convenience of the owner; (c) the location or form of the relevant part of the land; (d) the relationship with the neighboring land; and (e) the comparison and balancing between the ownership guarantee of the landowner and the public interest; and (e) if the owner is deemed to have waived the exclusive, exclusive, and exclusive rights to use the land, the land may not be deemed to have caused any damage to the landowner, barring any special circumstances, barring any special circumstance. Therefore, the landowner may not file a claim for return of unjust enrichment against the third party (see Supreme Court en banc Decision 2016Da264556, Jan. 24, 2019).

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) As a part of the village structure improvement project implemented from around 1979, Kimpo-si, Kimpo-si, a road was opened to expand the width by 8 meters. The neighboring landowners, including the Plaintiff, applied for land division and land category change to roads on land included in the expanded road site.

2) 원고는 1971. 10. 19. 김포시 ○○동 △△△ 대 2,969㎡(이하 ‘분할 전 토지’라 한다)의 소유권을 취득하였고, 1981. 2.경 ‘도로편입’을 분할사유로, ‘도로로의 지목변경’을 조건으로 분할 전 토지를 4필지(김포시 ○○동 △△△ 대 2,699㎡, 같은 동 △△△-□ 도로 10㎡, 같은 동 △△△-◇ 도로 218㎡, 같은 동 △△△-☆ 도로 42㎡)로 분할한다는 허가를 받았다. 분할 전 토지는 1981. 7. 14. 허가받은 대로 4필지로 분할등기되었으나, 그중 김포시 ○○동 △△△-◇ 대 218㎡(이하 ‘이 사건 토지’라 한다)만 절차상의 잘못으로 분할 및 확장도로부지 편입 후에도 지목이 도로로 변경되지 않고 대지로 등기되었다.

3) 한편 분할 전 토지에 인접해 있던 구 도로는 폭이 약 2m이고 형상이 구불구불하였는데, 원고 소유의 분할 전 토지에서 분할된 이 사건 토지와 김포시 ○○동 △△△-□ 도로 10㎡, 같은 동 △△△-☆ 도로 42㎡가 인근 토지 소유자들의 토지들과 함께 확장도로에 편입된 이후, 위 구 도로는 폭 8m 정도의 직선 모양의 도로가 되었다.

4) Around September 1981, the land grade of the instant land increased from “62” to “156,” around July 1984, and the Plaintiff did not pay the property tax on the instant land since 2000, which can be verified by electronic means.

5) The instant land incorporated into an extended road is adjoining to the instant land, which is divided from the land that was divided into Kimpo-dong ○○-dong △△△△△, Kimpo-dong, Kimpo-dong, Kimpo-si, Kimpo-si, ○○○○, 2,683 square meters (hereinafter “instant adjoining site”).

6) On March 31, 198, the Plaintiff filed an application with the Defendant for permission to construct a neighborhood living facility of the size of the first and third floors underground on the instant neighboring site. On March 31, 1988, the Plaintiff newly constructed the instant building upon obtaining the construction permission by stating the road required under the Building Act at the time as well as the road of the width of the vehicle traffic, which includes the instant land, as the extension thereof,

7) The instant land was incorporated into a road site around August 1981 and offered to the public through a road under management, such as the Defendant’s packing, maintenance and repair, etc. from that time to that time. On August 26, 1993, the instant land was incorporated into a “small-ro 2nd 81 line, which is an urban planning facility, according to the urban planning decision.”

8) Before the filing of the instant lawsuit, the Plaintiff did not object to being used as a road or demanded the return of unjust enrichment on the instant land. In around 2014, the Plaintiff filed the instant lawsuit claiming the return of unjust enrichment only with respect to the instant land, the land category of which has not been changed to the road among the land divided from the land before subdivision.

B. Examining the foregoing factual basis in light of the legal principles as seen earlier, the Plaintiff voluntarily filed an application for subdivision of the land before subdivision to increase the utility value of the adjoining land, and became unable to exercise the exclusive, exclusive, and exclusive right to use and benefit from the instant land by providing the divided land as the site for expansion of the road. Therefore, the Plaintiff cannot claim for return of unjust enrichment equivalent to the rent for the use of the instant land to the Defendant

C. Nevertheless, the lower court determined that it is difficult to view that the Plaintiff renounced exclusive, exclusive, and beneficial rights to the instant land solely based on the circumstances indicated in its holding, and therefore, the lower court erred by misapprehending the legal doctrine on the restriction on the exercise of exclusive, exclusive, and beneficial rights by landowners, thereby adversely affecting the conclusion of the judgment. The grounds for

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)