[1] The time when delayed liability for the return of unjust enrichment due to occupying another person's land arises

[2] The court's passive scope of the duty to explain and the object of waiver or loss of the right to ask questions

[3] The meaning of "property" and whether the new local government under jurisdiction due to the change of district of the local government or the abolition, establishment, division, or merger of the local government under Article 5 (1) of the former Local Autonomy Act include the meaning of "property" and its liabilities (negative)

[4] Where a local government occupies a road as a de facto controlling entity, the method of determining a specific occupying entity under Article 5(1) of the former Local Autonomy Act

[5] The method of assessing the basic price of land for calculating the amount of unjust enrichment equivalent to the rent in a case where the State or a local government occupies or uses land which was actually used for the general public’s traffic from the past to the road

[6] In a case where a private land is occupied by the State or a local government and provided it as a de facto road, whether the landowner’s damages may be recognized (affirmative in principle)

[1] The obligation to return unjust enrichment due to the possession of another person's land is a debt with no deadline for performance and is liable for delay from the time of receiving a claim for performance.

[2] The court does not have an obligation to clarify whether the party itself is responsible for claiming the matters itself, and only the matters concerning the legal proceedings may be subject to waiver or loss of the right to ask questions.

[3] Article 5 (1) of the former Local Autonomy Act (amended by Act No. 8423 of May 11, 2007) provides that when the district of a local government is altered, abolished, divided, or combined, the local government that newly has jurisdiction over the area shall succeed to its affairs and property. In light of the provisions of Article 133 (1) and (3) of the same Act, the term "property" under the above provision means only all articles and rights that have property value other than cash, and the liabilities are not included therein.

[4] In a case where a local government occupies a road as a person who actually controls the road, without considering the provisions of the Municipal Ordinance of the Special Metropolitan City or Metropolitan City concerning the maintenance and management of the road, such as division of duties of a Special Metropolitan City or Metropolitan City concerning the street width, and division of duties of an autonomous Gu, etc., it shall be determined on the basis of specific facts recognized in individual cases, in accordance with Article 5 (1) of the former Local Autonomy Act (wholly amended by Act No. 8423, May 11, 2007) before the enforcement of the Local Autonomy Act. From May 1, 1988 when the Local Autonomy Act enters into force, it shall be deemed that the person who actually occupies the relevant land has been transferred to an autonomous Gu under the jurisdiction of the Special Metropolitan City or Metropolitan City. However, the issue of identifying who is the person who actually occupies the relevant land during a certain point or a certain period after May 1, 198 shall be determined on the basis of individual cases.

[5] In a case where the State or a local government performs construction works required for the land which was actually being used for the general public for the traffic from the past and has been in the form of a road, and thereafter occupies the road as a de facto controlling entity, the basic price of the land to calculate the amount of unjust enrichment equivalent to the rent for the land occupied and used shall be appraised according to the current status, namely, the condition limited to the road.

[6] In a case where a certain private land is actually owned by the State or a local government and its owner’s exclusive and exclusive use and profit-making is restricted by providing it to the general public, barring special circumstances such as where the owner renounces his/her exclusive and exclusive use and profit-making right of the land, the State or the local government shall be deemed to have obtained the profit from occupying the land, and the landowner shall be deemed to have suffered the equivalent damages.

[1] Articles 387 (2) and 741 of the Civil Act / [2] Articles 136 and 151 of the Civil Procedure Act / [3] Articles 5 (1) and 133 (see current Article 142) of the former Local Autonomy Act (amended by Act No. 8423 of May 11, 2007) / [4] Article 192 of the Civil Act, Article 5 (1) of the former Local Autonomy Act (amended by Act No. 8423 of May 11, 2007) / [5] Article 741 of the Civil Act / [6] Article 741 of the Civil Act

[1] Supreme Court Decision 94Da45753 delivered on November 21, 1995 (Gong196Sang, 40) / [2] Supreme Court Decision 88Meu1797 delivered on September 27, 198 (Gong198, 133) / [3] Supreme Court Decision 91Da17207 delivered on October 22, 1991 (Gong1991, 2803 delivered on June 26, 1992), Supreme Court Decision 91Da40498 delivered on June 26, 1992 (Gong192, 2268 delivered on October 27, 1992) / [4] Supreme Court Decision 91Da35649 delivered on September 29, 205 (Gong1992, 3649 delivered on April 25, 194)

Plaintiff (Attorney Han-hee et al., Counsel for plaintiff-appellant)

Seoul Metropolitan Government

Seocho-gu Seoul Metropolitan Government (Attorney Kim Jong-hun, Counsel for defendant-appellant)

Seoul High Court Decision 2005Na101491 Delivered on December 29, 2006

All appeals are dismissed. The costs of appeal are assessed against each appellant.

Each ground of appeal is examined.

1. As to the appeal by the plaintiff (appointed party, hereinafter "the plaintiff") against the defendant Seoul Special Metropolitan City

The appellate brief submitted by the Plaintiff was not indicated in the grounds of appeal, and was not filed within the statutory period.

2. As to the Plaintiff’s ground of appeal Nos. 1 and 2 against the Defendant Seocho-gu

A. The obligation to return unjust enrichment due to the possession of another person’s land is the obligation with no deadline for performance, and is deemed to have a delay liability from the time of receipt of the claim for performance.

Based on its adopted evidence, the court below acknowledged that the defendant Seocho served the defendant Seocho-gu only on December 13, 2006 a copy of the claim and the ground for amendment, which included the purport that the defendant occupied and used the land of this case, owned by the plaintiff and the designated parties (hereinafter "the plaintiff, etc.") from January 1, 2002 to December 31, 204, and the purport that the return of unjust enrichment occurred from March 25, 2005 to December 13, 2006. Meanwhile, the defendant Seocho-gu did not assume any liability for delay with respect to the period for which the plaintiff, etc. was not demanded for performance with respect to the above unjust enrichment, and it did not err in the misapprehension of legal principles as to the return of unjust enrichment from January 1, 1997 to December 31, 2004, the court below did not err in the misapprehension of legal principles as to the delivery of the complaint of this case, and in the misapprehension of legal principles as to the return of unjust enrichment from May 222222, 14, 20015.

B. The party does not have a duty to ask whether or not the party asserts the matter itself (see, e.g., Supreme Court Decision 88Meu1797, Sept. 27, 198). Only the matters concerning the legal proceedings may be subject to waiver or loss of the right to ask questions.

According to the records, in addition to the plaintiff's claim for unjust enrichment and damages for delay arising from the possession and use of the land of this case by the defendant Seocho-gu, the defendant Seocho-gu shall pay damages to the plaintiff as a tort, or as a malicious beneficiary, it cannot be found that the plaintiff should return to the plaintiff with interest added pursuant to Article 748 (2) of the Civil Act. Thus, the court below is just in not examining and determining the above matters, and there is no violation of law such as incomplete hearing or failure to perform the duty of explanation. Further, the court below's decision that the payment demand notice regarding the obligation to return unjust enrichment was made by delivering the above claim and the copy of the application for change to the defendant to the defendant on December 13, 2006 is decided as to the due date for the performance of the obligation with no deadline for the performance, and such matters cannot be viewed as the subject of waiver or loss of right, and therefore, the argument in the grounds of appeal, which is premised on a different view, cannot be viewed as the subject of waiver or loss of right.

3. As to the Plaintiff’s grounds of appeal Nos. 3 and 4 against the Defendant Seocho-gu and the grounds of appeal Nos. 1 and 2 of Seocho-gu

Article 5(1) of the Local Autonomy Act (hereinafter “instant provision”) provides that a local government that has jurisdiction over an area shall succeed to its affairs and property when there is a change of zone or abolition, division, or consolidation of a local government. However, in light of the provisions of Article 133(1) and (3) of the Local Autonomy Act, the term “property” means only all objects and rights other than cash, and its obligations are not included in “property” (see Supreme Court Decisions 91Da17207, Oct. 2, 1991; 91Da40498, Jun. 26, 1992, etc.). It shall be deemed that the new type of land occupied by the State or a local government is de facto divided into three parts: (1) and (2) and (3) of the Special Metropolitan City or a road zone under the Urban Planning Act; (4) and (5) and (9) it shall be deemed that it is de facto controlled by the Supreme Court during the period of occupation and management of a Metropolitan City.

In addition, the basic price of the land for calculating the amount of unjust enrichment equivalent to the rent for the land occupied and used by the State or a local government as a road, should be assessed according to the current state, which is limited to the road, in cases where the State or a local government performs construction works necessary for the land in which the State or a local government actually used for the traffic of the general public, and thereafter has the form of a road, and where it has occupied the road as a de facto controller (see Supreme Court Decision 2001Da70900, Mar. 12, 2002).

The court below acknowledged the following facts based on its adopted evidence: the defendant Seocho-gu occupied and used the part of the land of this case as a de facto controller from January 1, 1997 to December 31, 2004; the part of the land of this case was already used as a de facto road passing through the general public before the defendant Seoul Special Metropolitan City or the defendant Seocho-gu occupies and uses it; and determined that the profits and losses suffered by the defendant Seocho-gu due to such occupation and use should be calculated based on the actual road status. The court below's decision is just in light of the above legal principles and records, and there is no error of law such as omission of judgment, contradiction of reasons, violation of the rules of evidence, violation of the rules of evidence, violation of the Urban Planning Act, or misunderstanding of legal principles as to fine view or return of unjust enrichment as alleged in the grounds of appeal. The Supreme Court decision cited in the grounds of appeal is not appropriate to apply this case

4. Regarding Defendant Seocho-gu’s ground of appeal No. 3

In a case where a certain private land is occupied by the State or a local government and its owner’s exclusive and exclusive use of the land is restricted by providing it to the general public, barring special circumstances, such as the owner renounced his/her exclusive and exclusive use of the land, the State or the local government shall be deemed to have obtained the benefits by occupying the land, and the landowner shall be deemed to have suffered the equivalent damages.

The court below acknowledged facts based on its adopted evidence, and judged that the defendant Seocho-gu suffered damage to the plaintiff, etc. due to the possession and use of the part of the land of this case. In light of the above legal principles and records, the court below's fact-finding and decision are just and acceptable, and there is no error of law such as misunderstanding of legal principles as to return of unjust enrichment as alleged in the grounds of appeal. The Supreme Court precedents cited in the grounds of appeal are different cases,

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)