2013 Doz. 105159

A

Gwangjin-gu Seoul Metropolitan Government

November 20, 2013

December 26, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 291,042,653 won and the amount at a rate of 20% per annum from the day following the delivery of the application for modification of the purport of the claim and the cause of the claim of this case to the day of complete payment. The defendant shall pay to the plaintiff 5,036,660 won per month from the day following the delivery of the application for modification of the purport of the claim of this case and the cause of the claim of this case to the day

1. Facts of premise;

A. On January 21, 1967, the Seoul Seongdong-gu Seoul Metropolitan Government applied for authorization to implement a land readjustment project E (hereinafter referred to as the “instant project”) in Seongdong-gu Seoul, Seongdong-gu, Seoul, and C, and publicly announced the implementation of the project on January 25, 1967.

B. The Plaintiff F and G (H prior to the opening of the name) purchased from 1967, 12 December 12, 197, and I the land of 584, 511, and L former 295 (hereinafter collectively referred to as the “previous land”) located in the instant project area from the Seoul Special Metropolitan City Gwangjin-gu, Seoul Special Metropolitan City, which was located in the instant project area, and completed the registration of ownership transfer on the previous land on December 18, 1967.

C. After October 13, 1969, the previous land was divided as indicated in the “divided land” column as indicated in the annexed sheet, and M among the partitioned land was designated as being substituted with the road through the designation of the land scheduled for substitution as of October 14, 1969.

D. The partitioned land became a replotting disposition, as indicated in the “after-land substitution” column in the annexed sheet, 1972. On August 22, 1973, the substitution and division adjustment of the instant project was completed. In particular, the category of N,O, P, Q, and R land (hereinafter collectively referred to as the “instant land”) which were substituted in M land was changed to “the land category”, and the remaining land category was changed to “the land category.”

E. Meanwhile, F and G sold all the remaining lands other than the instant land on the basis of the parcel number determined by subdivision and replotting after the completion of a replotting disposition or after the completion of a replotting disposition. From the completion of a replotting disposition, each building began to be newly constructed on the remaining lands on the ground, and the instant land, which is a narrow and long form like the sound portion of the attached drawing, has been used as a road from the time of the completion of a replotting disposition, and thereafter, the road packaging work was already conducted on the ground by the Defendant before 2003, and the said ground was laid underground.

F. The area of the instant land is approximately 6.4% of the area of the previous land that F and G purchased. The remaining part of the land after replotting, excluding the instant land, is divided into three bar boards in the form of the attached Form. Since the instant land is wider than that of the instant land, the land located in the above two heats would have a large inconvenience in using the instant land if it is difficult to use the said land as a road, and some of the land is likely to be a blind spot.

G. F’s equity equivalent to 1/2 of the instant land was transferred by G. G on November 20, 208, by inheritance, G. S and T, each of which was transferred to 1/6 shares. On June 13, 2012, the Plaintiff received each share from the said 3 persons on the gift on June 13, 2012. G’s equity equivalent to 1/2 of the instant land was transferred to the Plaintiff on January 2, 2012, and the Plaintiff completed each of the instant land registration on June 22, 2012, and each of the instant land was completed. In addition, the Plaintiff acquired a claim for return of unjust enrichment equivalent to the rent that the said 3 persons acquired against the Defendant on June 22, 2012, and the said 3 persons notified the Defendant on July 17, 2012, and sent the Defendant notice that the assignment of the claim was to the Defendant around that time.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Gap evidence 1 to 8, 8, 10, 11, 12, Eul evidence 1 to 5 (including branch numbers), Gap evidence 6 and 9, and the purport of the whole pleadings

2. Judgment on the cause of the claim

The form of occupation of a local government as a road management authority can be divided into possession and possession as a de facto controller. Thus, even if a road is not established pursuant to the Road Act, if a local government executes the reconstruction or maintenance of a road, such as expansion of a road, packing of a road, or installation of a sewerage, and uses it for the general public’s traffic, it shall be deemed that the existing road is under the de facto control of the local government, and possession as a de facto controller may be recognized (see, e.g., Supreme Court Decision 2001Da70900, Mar. 12, 2002).

As seen in paragraph (1) above, the land of this case was actually used as a road after the disposition of replotting according to the project of this case. As long as the defendant performed construction work prior to 2003, such as road packaging and sewerage construction, and used it for the general public’s traffic, the defendant has occupied the land of this case as a de facto controlling entity since 2003.

Thus, the defendant has the duty to return unjust enrichment equivalent to the rent due to the possession of the land in this case to the plaintiff as the owner of the land in this case and the transferee of the claim for return of unjust enrichment from the previous owner.

3. Judgment of defense

Since the Defendant renounced the exclusive right to use and benefit from the instant land by F and G, the Plaintiff asserted that the Plaintiff cannot file a claim for return of unjust enrichment equivalent to the rent with the Defendant.

In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road, or gives a waiver of exclusive and exclusive rights to use and benefit from the land, it shall be determined by comprehensively taking into account the following: (a) the developments and period he/she owns the land; (b) the developments and scale of the land divided and sold; (c) the details and scale of the sale of the remaining land; (d) the location and nature of the land used as the road; (e) the relationship with the neighboring land used as the road; and (e) the degree of contribution to the remaining land sold for the effective use and benefit of the land (see, e.g., Supreme Court Decisions 97Da27114, Dec. 12, 197; 2011Da39175, Aug. 30, 2012).

According to the above legal principles, F, G agreed with the purpose of seeking effective use and profit-making of the land which is the telegraph of the land in this case, with the knowledge of the fact that the land in this case is scheduled to be substituted as a road in the course of partition and replotting of the previous land, the developments leading up to the sale of the land except the land in this case, F, G, the time of sale of the land in this case, the location, nature, and usage status of the land in this case, and there was no evidence to suggest issues about the passage of the land in this case since 40 years after replotting, F, G, with the aim of offering the land in this case, other than the land in this case, after selling the remaining land except the land in this case, to provide the general public including the buyers of the land in this case, and to install roads, new buildings, sewerage and other facilities necessary to facilitate passage of the land in this case, it is reasonable to view that the land in this case has waived exclusive right to use and profit-making of the land in this case.

Therefore, the defendant's defense is justified.

4. Conclusion

Therefore, the plaintiff's claim is dismissed without any further determination as to the scope of unjust enrichment to be returned. It is so decided as per Disposition.

Judges Kim Jong-tae

Judges Lee Chang-soo

Judges Kim Democratic

A person shall be appointed.

A person shall be appointed.