Plaintiff Co., Ltd. (Law Firm Hyeong, Attorneys Sung-Gyeong et al., Counsel for plaintiff-appellant

Guro-gu Seoul Metropolitan Government (Attorney Kim Jong-sung, Counsel for defendant-appellant)

December 4, 2008

Seoul Southern District Court Decision 2006Ga67378 Decided September 6, 2007

1. Revocation of a judgment of the first instance;

2. The defendant shall pay to the plaintiff 3,657,00 won with 20% interest per annum from March 9, 2007 to the day of complete payment.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same is as the disposition (the plaintiff planned to modify the purport of the claim through the future appraisal without specifying the deadline for claiming return of unjust enrichment while filing the lawsuit in this case on August 7, 2006, and once again, the initial date of claiming the amount of the claim was 50,000,000 won on the day following the delivery date of a copy of the complaint in this case. While the total sum of the rent from August 7, 2001 to February 28, 2007 as the result of the assessment of rent during the lawsuit in the first instance court, the initial date of calculating damages for delay was the same as the previous one, and the same is also stated in the petition of appeal. Thus, "the day following the delivery date of a duplicate of the complaint in this case" among the applications for changing the purport of the claim and the grounds for the claim and the purport of the claim stated in the petition of appeal shall be the day following the delivery date of a duplicate of the application for changing the purport of the claim and the grounds for the claim in this case.

1. Facts of recognition;

A. Before the subdivision, Guro-gu Seoul Metropolitan Government 30-1 Forest land 5,430 square meters was divided into 30-1 forest land and 264 forest land and 30-2 forest land and 5,160 square meters in the same area on July 1, 1959, and among which 30-1 forest land and 264 square meters in the same area were converted into 162-8 square meters and 873 square meters in the same area.

B. From 30-2 forest land of the same 30-3 forest land of the same 30-3 forest land of the same 30-3 forest land of the same 16,264 square meters. The said 30-3 forest land of the same 30-3 forest land was once again divided into 30-6 forest land of the same 30-3 forest land of the same 30-3 forest of the same 15,771 square meters on January 25, 1979.

C. In around 1978, the Plaintiff had a housing construction project carried out in a single 30-3 forest land of the same 30-3 forest land of the same 15,771 square meters. The Plaintiff had the same 29-5 forest land of the same 29-5 forest land of the same 29-3 forest of the same 30-3 forest land of the same 30-3 forest of the same 1978, the same 30-3 forest of the same 31-6 forest of the same 31-6 forest of the same 162-6 forest of the same 162-9 forest of the same 162-8, the same 145-174 site of the same 162-4 forest of the same 162-8, the opening of the Seoul Metropolitan Government-dong 1978 and completed the registration of the ownership transfer under his name after purchasing the road of this case under the same 3000-4 square meters.

D. In implementing the said land readjustment project, the Plaintiff newly built 296 sites of the same 296 site and 301 site of the same 301 site, and completed construction on January 20, 1979 and sold it in lots. At the time, at the time, the Plaintiff provided the occupants with the road of this case as a passage from the contribution to the forest apartment to the forest apartment zone (after that, the above apartment was reconstructed to 987 households around December 194).

E. At the time, a residence was not formed on the north side of the above road, and most of the residents of Western apartments used it as a passage, and thereafter, the residents of the above house started to use the above road as a passage route, following the housing entrance leading to the road of this case by entering the 161-67 to 69, Guro-gu, Seoul, the north side of the above road, the 162-725 to 88.

F. Since then, the above Western apartment was removed, and a high-level treatment apartment was newly constructed around February 199 on the site. At the time of the reconstruction, the apartment entrance on the side of the road of this case was moved to the opposite side, and the retaining wall was installed on the part of the apartment boundary abutting on the road of this case, and the said reconstruction construction company reconstructed the road of this case, reconstructed the road of this case, installed street lamps, and installed sewerage.

F. The Defendant occupied the instant road from August 7, 2001 to February 28, 2007. At present, the said road is mainly used as the passage and parking zone of the residents living in the housing located north of the said road. The instant road and the instant high-class treatment apartment are installed with a embankment and fence, and there are trees between them and the passage of high-class treatment apartment residents, and it is not actually used as the passage of the residents of high-class treatment apartment.

[Reasons for Recognition] A-1, 2, A-1, 2, 3, A-4, A-1, 2, A-1, 6-1, 2, A-1, 2, A-1-1, 2, B-2, 2 through 9, 11, 12, B-1, 14-1-23, 15, 16, 19, 21, B-1, 24-1, and 24-1, 24-2, each of the records, A7-1-14, A-14, 8-1-47, 10, 13, 16, and 18-1-5, and the results of the fact-finding conducted by the Ministry of Land, Transport and Maritime Affairs of the first instance court, the results of the verification conducted by the court of first instance, and the purport of the entire pleadings.

2. Return of unjust enrichment:

A. Determination on the cause of the claim

According to the above facts, the defendant used the road of this case owned by the plaintiff as a road site provided for the passage of the general public without expropriation or purchase procedure, and actually occupied it as a dominant agent of the above road, and thereby obtained profits equivalent to the rent of this case without any legal cause, and thereby suffered damage equivalent to the above amount. Thus, the defendant is obligated to refund the rent equivalent to the rent from August 7, 2001 to February 28, 2007, which the plaintiff sought after the defendant commenced possession, to the plaintiff.

B. Defendant’s assertion and judgment

1) The assertion

In the event that the plaintiff constructed the above apartment on the housing site for the sale of Seocho apartment, and divided and sold it to many persons, the road of this case is the only passage through which it can be contributed from the above apartment, and the remaining land is provided as a passage to the public road of the above housing site for the purpose of enhancing the utility value of the above housing site for the reason that it cannot be divided and sold as a housing site, so it can be deemed that the plaintiff granted the right to use and benefit from the above road to the purchaser of the housing site and all other persons who will reside in the above housing site, and the right to use and benefit from the road without compensation to the neighboring residents. The plaintiff provided the right to use and benefit from the road to the neighboring residents.

2) Determination

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 waives the exclusive and exclusive rights to use and profit from the land, it shall be determined by comprehensively examining the following: (a) the circumstance and scale of the ownership of the land; (b) the situation and scale of the land in question; (c) the location and nature of the land in question used as a road; (d) the relationship with other neighboring land; and (e) the degree of contribution to the land in question for the effective use of the sold land; and (e) the degree of the contribution to the land in question for profit-making (see Supreme Court Decision 97Da52844 delivered on May 8, 1998).

In the case of this case, as recognized by the above facts, it is difficult for the residents to use the above road as a passage to the residents of the above apartment zone because their residence is not formed around the above road and there is no room for the residents to use the above road as a passage to the above apartment zone. The plaintiff constructed a forest apartment zone and constructed it as a passage to the above apartment zone. The plaintiff became to provide the residents of a forest apartment zone with the passage to the above apartment zone as a passage to the road. At the time, the above road was used only by the residents of the above village apartment zone. The plaintiff's assertion that the above apartment zone was naturally and naturally used by the residents of the above road after the passage to the north of the above road, and it is not necessary to provide other residents of the above apartment zone with the convenience to use it as a passage to the above apartment zone and to use it as an exclusive passage to the residents of the above apartment zone. After the construction of a new apartment zone, it is not necessary to view that the plaintiff's use of the above apartment zone as a passage to the residents of the above apartment zone and its neighboring apartment zone.

3. Scope of return of unjust enrichment

Furthermore, with respect to the amount of unjust enrichment to be returned by the Defendant, the amount of profit from possession and use of ordinary real estate shall be the amount equivalent to the rent of the real estate. According to the result of appraisal of rent by the appraiser of the first instance trial, the fact that the sum of the rent of the instant road from August 7, 2001 to February 28, 2007, which the Plaintiff seeks from August 7, 2001 to February 28, 2007, is 33,657,000.

Therefore, the defendant is obligated to pay to the plaintiff 3,657,00 won and damages for delay calculated at the rate of 20% per annum from March 9, 2007 to the day of full payment, which is the day following the day of service of a copy of the application for modification of the claim and the cause of claim of this case sought by the plaintiff as the result of the due date of payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by the court below to cancel it and order the defendant to pay the above money.

Judges Kim Dong-dong (Presiding Judge)