(a) Where the State or a local government occupies a road as a de facto controlling entity, whether to change a controlling entity after the Local Autonomy Act enters into force;

(b) Where a local government occupies land to a road site without title, the method of computing unjust enrichment;

A. The form of occupying a road by the State or a local government is divided into cases where a road management authority under relevant Acts and subordinate statutes, such as the Road Act, occupies a road as a de facto controlling entity. Thus, in cases where a person who actually controls a road occupies a road, the provisions of the Seoul Special Metropolitan City Ordinance on the Maintenance and Management of the Road, such as the division of duties of a Special Metropolitan City and an autonomous Gu concerning the width of a road, shall not be followed, and the provisions of Article 5 (1) of the Local Autonomy Act concerning the maintenance and management of the road, such as the division of duties of a Special Metropolitan City and an autonomous Gu, shall be deemed to be the occupying entity until April 30, 198, which is prior to the enforcement of the Local Autonomy Act. However

B. In a case where a local government occupies and uses land owned by another person as a road site without any title, if the local government’s benefits and losses to a land owner are affected by the land situation surrounding the land incorporated into the road or by the price of the land, the amount calculated by deducting the development gains from the rent of the part of the land, if the land price has increased as much as the price was affected by the road construction or maintenance works by the local government.

(a) Article 5(1) of the Local Autonomy Act, Article 9(2)9 of the Enforcement Decree of the Local Autonomy Act, Article 5(1) attached Table b of the Seoul Metropolitan Government Ordinance on Delegation of Administrative Authority

A. Supreme Court Decision 91Da35649 delivered on October 27, 1992 (Gong1992, 3242), 92Da504 delivered on May 25, 1993 (Gong1993Ha, 1846), 94Da3401 delivered on October 28, 1994 (Gong1994Ha, 3122), Supreme Court Decision 90Da19251 delivered on March 12, 1992 (Gong191, 1176), 92Da22343 delivered on September 222, 1992 (Gong192, 2978).

Korea Exchange Bank Co., Ltd., Counsel for the plaintiff-appellee and two others

Dongyang General Law Firm et al., Counsel for the defendant-appellant

Seoul High Court Decision 93Na49477 delivered on November 2, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the evidences of the city, where only the determination of urban planning facilities (road) was made on the part of the land in this case at the city, in order to expand the existing roads with a width of 10 meters to the roads with a width of 20 meters since the construction of an underground passage entrance and exit exit at the city of the original adjudication on June 5, 197, by installing a sewerage management station and road packing on the part of this case, in addition to providing the part of this case to the general public for traffic, and continuously occupy it until now by installing on-road parking lots, etc., and further, the defendant did not make a public announcement of the approval of routes and road zones under the Road Act,

2. As to the ground of appeal No. 1 and No. 3 by Defendant 1 et al.

In light of the records, the fact-finding by the court below is just and there is no error of law in the misconception of facts or failing to exhaust all deliberation due to the violation of the rules of evidence, except that, after May 1, 1988, when the Local Autonomy Act was enacted, Jung-gu, a separate independent local government from the defendant Si and Jung-gu, a separate local government from the defendant Si, occupy the land of this case. However, the judgment of the court below that the occupying entity is the defendant

3. As to the ground of appeal Nos. 2 and the ground of appeal No. 1 by the defendant Yangyang General Law Firm

The court below rejected the defense of the defendant, based on the following facts: (a) the plaintiff acquired the part of the land in this case, including the part of the land in this case for the construction of the head office building, but thereafter, the part of the land in this case was excluded from the site of the building in the building site of the head office, and (b) the defendant market offered the part of the land in this case as above through the passage of the general public and demanded compensation for possession of the land in this case over several occasions; (c) in light of the above facts, although the plaintiff acquired the part of the land in this case for the construction of the head office office building, the part of the land in this case was used jointly with the general public; and (d) the customers or banking employees entering the head office of the plaintiff bank use the part of the land in this case, and even if the plaintiff received non-taxation designation after filing an application for non-taxation designation on the part of the land in this case, such circumstance alone cannot be deemed to have renounced exclusive use rights of the land in this case, and there is no other evidence supporting such facts.

In light of the records, the above recognition and judgment of the court below are just, and there is no error in the misapprehension of the legal principles as to the waiver of exclusive use rights in road possession or the incomplete hearing. The arguments are without merit.

4. As to ground of appeal No. 2 by the Yangyang Law Firm

The form of occupation of a road by the State or a local government can be divided into cases where a road is actually established by public announcement of road routes under the Road Act and public announcement of road zones, or by implementation of an urban planning project under the Urban Planning Act, and where a road is actually occupied by a road management agency. Considering the importance of road width and route as prescribed by the Ordinance of the Special Metropolitan City, which is not less than 12 meters under Article 9 of the Enforcement Decree of the Local Autonomy Act, the road is not managed by an autonomous Gu but is managed by the Special Metropolitan City. The attached Table of Article 5(1) of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority provides for the construction of a road and the installation of appurtenances thereof within a width of less than 20 meters as delegated affairs to the head of the Si, and it is not a provision concerning roads occupied by a road management agency under the relevant Acts and subordinate statutes, and it is not a provision concerning a road that is actually occupied by an autonomous Gu from the head of the Si to the date of occupation under the Local Autonomy Act (see, e.g., Supreme Court Decision 98Da1984, etc.

According to the facts duly established by the court below, the possession of the land portion of this case by local governments, such as the defendant Si, etc., is not a road management authority, but a de facto controlling entity. Therefore, the land portion of this case is actually occupied by the defendant market until April 30, 198, and from May 1, 198, the non-party, a separate independent local government from the defendant Si, pursuant to Article 5 (1) of the Local Autonomy Act, occupied and managed the land portion of this case.

Although the legal principles are different, the court below recognized the defendant city's responsibility for return of unjust enrichment during the previous period from August 10, 1987 to November 30, 1992 on the premise that the defendant city continues to possess and manage the land portion of this case as a de facto controller after May 1, 1988 when the Local Autonomy Act was enforced. This is a violation of law by misapprehending the legal principles as to the scope of application of each of the above provisions under the Local Autonomy Act or the Seoul Metropolitan Government Ordinance on Delegation of Administrative Authority, or by misapprehending the legal principles as to the act of possession and de facto controlling entity as a road management authority. It is obvious that the judgment affected the conclusion of the judgment. The arguments pointing this out are with merit.

5. As to the third ground for appeal by the Yangyang Law Firm

In a case where a local government occupies and uses land owned by another person as a road site without any title, if the local government's profit as an occupant of land and damages to a landowner are affected by the surrounding land of the land incorporated into the road, or if the price of the land increases so, the amount calculated by deducting such development gains from the above rent would be equivalent.

According to the appraisal of the appraiser's fees based on the calculation of unjust enrichment as to the land portion of this case, it is clear that there is no scams from which the development gains from the incorporation of the land portion of this case were deducted in calculating the amount of unjust enrichment. However, on the other hand, the land portion of this case is located in a general commercial area located in the high density of the high density of the land portion of this case, Jung-gu, Seoul, and it is clear that the passage road with the 10m width of neighboring street has been expanded to the 20m width, and thus, it cannot be deemed that the land situation of neighboring land portion of this case or the market price has increased due to its impact. Thus, in calculating the amount of unjust enrichment of this case, the court below did not deduct the development gains from the rent of the land portion of this case, and it cannot be deemed that there is no error of law. The argument is without merit.

6. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)