In case where the reclaimed land of public waters created without a license is nationalized by the law, the State's unjust enrichment (negative)

If a tide embankment restoration and reclamation work were performed without a license, it is merely obligated to restore the reclaimed land to its original state pursuant to Article 26 of the Public Waters Reclamation Act, and there is no authority to do so. Thus, it cannot be said that there is no legal ground for acquiring the ownership of the reclaimed land created by a license without a license. Therefore, even if the State took measures to nationalize the reclaimed land and actually took profits equivalent to the above construction cost, it cannot be said that there is no legal ground.

Article 26 of the Public Waters Reclamation Act, Article 741 of the Civil Act

Plaintiff (Law Firm Jung-il, Attorney Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 95Na24786 delivered on February 13, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The plaintiff's attorney's grounds of appeal are examined (the grounds of appeal on the supplemental appellate brief not timely filed are examined to the extent it supplements the grounds of appeal).

1. Article 26 of the Public Waters Reclamation Act provides, “Any person who reclaims public waters without a license shall restore the public waters in the zone where the reclamation works are executed shall restore them to the original state: Provided, That where the Minister of Construction and Transportation deems it impossible to restore to the original state or it is unnecessary to restore to the original state, he may exempt him from the duty of restoration, and in this case, he may own the facilities and other things located in the public waters in the zone where the reclamation works are executed.” As recognized by the court below, if the plaintiff performs the tide embankment restoration and reclamation works without a license, the plaintiff is merely obligated to restore it to the original state pursuant to the above provision, and there is no authority to do so. Thus, if the defendant takes measures to nationalize the reclaimed land of this case created without a license pursuant to the above provision, it shall not be deemed that there is no legal ground for acquiring the ownership, and therefore, even if the defendant actually obtains profits equivalent to the above construction expenses by taking measures to nationalize it,

The judgment of the court below to the same purport is just and acceptable, and there is no error of law by misunderstanding the legal principles as to return of unjust enrichment, such as the theory of lawsuit, and therefore there is no ground to

2. In light of the records, it is clear that the Plaintiff sought the return of the construction cost without legal grounds and did not seek the return of the expenses incurred as a result of the management of affairs for the Defendant, etc., and there is no error in the misapprehension of the judgment below's incomplete deliberation, the omission of judgment, and the omission of the exercise of the right to request tin. It is also without merit.

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

Justices Cho Chang-tae (Presiding Justice)