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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff asserted that the Defendant built and occupied the instant road on the instant land owned by the Plaintiff without permission, and that the Plaintiff removed the instant road and deliver the instant land to the Plaintiff. The Plaintiff sought the return of unjust enrichment calculated at the rate of KRW 66,574,00 per month from January 1, 2004 to April 10, 2015, as unjust enrichment equivalent to the rent of KRW 66,574,00, and delay damages therefor, and the amount of unjust enrichment calculated at the rate of KRW 609,00 per month from April 11, 2015 to the delivery of the said land to the Plaintiff.
2. Determination
A. In a case where a private land under the Framework Act is naturally occurring or is actually used as a road designated as a site for a road and is actually used for the traffic of the general public, if the owner of the land grants the right to free traffic to neighboring residents or the general public by providing the land as a road, or expresses his/her exclusive and exclusive right to use and profit from the land, it shall be determined by comprehensively taking into account all the circumstances such as the circumstance and period he/she owns the land, how and how he/she sells the remaining land in installments, how and how the land was sold in installments, the location and nature of the land to be used as the road, relations with other neighboring land, surrounding environment, etc., as well as the degree of contribution to the land in question for the effective use and profit of the remaining land partitioned and sold.
(See Supreme Court Decision 88Meu1697 delivered on July 11, 1989, etc.). In addition, a person who succeeds to the ownership of the land by auction, sale, substitutes, etc. after the original owner provided a part of the land to a road site without compensation, and waivers of the exclusive and exclusive rights to use and benefit therefrom, and accordingly, a person who succeeds to the land specified by auction, sale, substitute payment, etc. after the residents became to have passed the land without compensation, bears the burden of restricting such use