Whether a claim for return of unjust enrichment on the private land incorporated as the applicable river area is made (negative)

Even if a private land is legally incorporated into a river area governed by the River Act and its owner suffers losses due to the restriction on the exercise of private rights as to profit-making and profit-making, it shall not be allowed to claim the return of unjust enrichment on the ground that the possession of a local government, which is a river management authority, is the same as that of a possession without the title.

Article 741 of the Civil Act / [Improper Enrichment from Possession, Use and Profit-making] Articles 2, 10, and 74 of the River Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-

Plaintiff et al., Counsel for the plaintiff-appellant and two others

Gyeonggi-do Attorney Kim In-hwan, Counsel for defendant

Seoul High Court Decision 90Na33457 delivered on November 2, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment of the court below, the court below found that the land of this case 3 was located within the boundary of the Gyeongcheon bank which was constructed from the time when the plaintiff was owned by the plaintiff, but the Gyeonggi-do Governor announced the Gyeongancheon as a river to which the law was applied mutatis mutandis on March 1, 1965, and the river was promulgated and enforced on January 19, 1971, and all of the above land was legally incorporated into a river area falling under Article 2 (1) 2 (c) of the River Act, and the land was naturally incorporated into a river area falling under Article 2 (1) 2 (c) of the same Act. Since the 10th of September 1972, the 1972 was flooded, the defendant improved and repaired the Gyeongcheon bank from around 10th of the same year, but the above land still remains within the river area. In light of the evidence stated by the court below, the judgment below's evidence judgment and fact-finding can be accepted, and there is no violation of law in this regard.

2. Regarding ground of appeal No. 2

According to the above facts, since the land of this case was legally incorporated into a river area under the law, even if the plaintiff suffered losses by being subject to the restriction on the exercise of private rights for use and profit-making, it cannot be claimed for the return of unjust enrichment by considering the possession of the defendant without the title, the same as that of the possession without the title, regardless of the compensation for losses under Article 74 of the River Act, so the court below's rejection of the plaintiff's claim for return of unjust enrichment differs from its purport, or it cannot be accepted as just

3. Accordingly, the appeal shall be dismissed, and all costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)