2014Da234964 Undue gains

1. A;

2. B

3. C.

4. D;

5. E.

Gwangju Metropolitan City Southern-gu

Gwangju District Court Decision 2013Na51595 Decided December 3, 2014

April 9, 2015

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

The grounds of appeal are examined.

1. The court below held that the defendant, without title, has a duty to return unjust enrichment to the plaintiffs who are the owners of each of the lands of this case, since the defendant implemented road packaging, etc. in the part other than the part on the ship connected in order to each of the lands of this case 1, 2, 3, 4, and 3 (hereinafter referred to as "each of the lands of this case"), among the lands of this case listed in attached Forms 1 through 4 of the judgment below (hereinafter referred to as "each of the lands of this case") in attached Forms 1 to 3 of the judgment below, and occupied and used them as roads by providing them for public traffic. The court below rejected the decision of the court below based on its reasoning that the plaintiffs renounced the exclusive right to use and benefit from each of the lands of this case, and even if the plaintiffs renounced the exclusive right to use and benefit from each of the lands of this case, in light of its reasoning, it is reasonable to view that the objective circumstance, which exclude exclusive right to benefit from each of the lands of this case, has been significantly changed.

A. Even in a case where a landowner deems that a land use situation in conformity with his/her own intent is not recognized because he/she provided the land without compensation or allowed the passage of the land to the general public, and thus no exclusive, exclusive, or exclusive rights to use it are recognized, this does not mean a claim for return of unjust enrichment because he/she cannot claim damages arising from failure to exclusively occupy and use the land, as long as the existing state of use is maintained under the principle of good faith, such as gold, trust protection, etc., and it does not mean that he/she is merely unable to claim a return of unjust enrichment. Accordingly, where an objective circumstance, which serves as the basis for excluding exclusive and beneficial rights due to a significant change in the land use situation, is considerably changed from the time of such change of situation, the landowner may make a complete claim for ownership based on the ownership, including the right to use and beneficial rights, from the time of such change of situation. In such a case, whether such change of situation occurs is determined by comprehensively taking into account the location and physical nature of the land in question, motive and circumstances surrounding the land being provided to the general public (see Supreme Court Decision 21313.

B. Review of the reasoning of the lower judgment and the record reveals the following.

① From among officers belonging to LAS and staff members of LAS, 107 non-permanent owners were organized to purchase land and build housing by contributing a certain amount of money in around 1979.

② On October 7, 1980, 107 members of the instant association (hereinafter referred to as “the instant association members”) purchased land creation works by contributing one million won to the Nam-gu Incheon Metropolitan City S (hereinafter referred to as “S”) 74,736m, 15,741m, 5,741m square meters, and 4,066m square meters, etc. (hereinafter referred to as “the total land purchased prior to division”).

③ The instant members, while carrying out the construction of the said housing site, divided each of the instant land into the said land and constructed a road to provide the traffic of the housing site owners, etc. on the said ground. On February 17, 1983, the Gwangju Metropolitan City Mayor underwent a completion inspection on the construction of the said housing site from the Gwangju Metropolitan City Mayor. Meanwhile, on March 4, 1983, the head of Seo-gu Seoul Metropolitan City divided the project site created by the housing site into S 115 and W 4 lots.

④ The Plaintiffs were officers of the instant association. The instant association members completed the registration of ownership transfer in the Plaintiff E’s name on July 25, 1983 with respect to the land Nos. 1 through 4 of the instant case. Of them, the Plaintiffs completed the registration of ownership transfer or the registration of ownership change on the land Nos. 1 through 3 of the instant case around 1987.

On October 12, 1984, members of the instant case agreed to contribute land of this case to Gwangju Metropolitan City after obtaining approval of a housing construction project plan for the construction of 107-household housing on the housing site developed as above, and agreed to contribute land of this case to roads.

6) The land of this case was newly established in order to be designated as the planned urban planning facilities (road) of Category 2, 84, 15 meters in width, the determination of urban planning facilities (road) of Category 2, 2, 302, 8 meters in width, and the planned urban planning facilities (road) of Category 304, 2, 304, 8 meters in width, and the land category on the registry shall be the road.

7) Each of the instant lands is located in and adjacent to J and K, approximately approximately 250 meters away from H in Nam-gu in Gwangju, Nam-gu, and is connected with the roads where vehicle traffic is frequent in J direction. There are multiple buildings around them, including dry field, housing, general buildings, and public facilities.

However, there was no special change in the location and shape of a road until 30 years have elapsed since a housing site was created and a road was constructed on each land of this case.

③ The Defendant, in 197, installed a sewerage system to supplement each of the instant lands under the ground, and carried out the asphalt Packaging with the consent of the instant association. In light of the aforementioned legal principles, the instant association members may not claim damages therefrom, as long as such conditions are maintained, by providing each of the instant lands as the instant land was created on the land before subdivision, for free on a passage to the general public, such as the owner of the relevant housing site or neighboring residents, as long as they were maintained, the instant association members may not exercise their exclusive right to use and benefit therefrom.

Furthermore, considering that the members of the instant association agreed to contribute each of the instant land to Gwangju Metropolitan City upon obtaining approval of a housing construction project plan and agreed to contribute each of the instant land to a road, such association members’ intent may be deemed to allow the passage of the general public on each of the instant land, and the location and form of each of the instant land and adjoining land compared to the time a road is constructed, there is no special change in comparison with the time when each of the instant land and each of the instant land were constructed. Since several years have passed since the construction of a road on each of the instant land, the traffic of the instant land became frequent on the roads where each of the instant land was adjacent to or where the instant land was located in the vicinity, and the passage of the general public was high due to a significant change in the land use situation due to a significant change in objective circumstances forming the basis for excluding exclusive rights to use and benefit from land, the Plaintiffs’ claim for return of unjust enrichment cannot be deemed to have been made.

Nevertheless, the lower court granted the Plaintiffs’ claim for return of unjust enrichment on different premises. In so determining, the lower court erred by misapprehending the legal doctrine regarding the exclusion of owners from the use and benefit-making of land actually occupied by local governments, etc., thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee, Justice Cho Hee-hee

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant