[1] Whether the original owner of the land can seek a return of unjust enrichment against the local government that occupies and manages part of the land as a road by auction, etc. after the original owner provided a part of the land as a road site without compensation (negative)

[2] In a case where Gap divided the land and sold the remaining land other than the land in the center as a housing site, and provided the land in the center as the only passage from the divided and sold land to the contribution, and thereafter sought a return of unjust enrichment against Eul who actually occupied the land in the public sale procedure against the local government where Eul purchased the land in the center as the de facto controlling entity, the case holding that the court below erred in the misapprehension of legal principles on the premise that Eul may exercise its right to use and benefit regardless of Eul's renunciation, on the premise that Eul may exercise its right to use and benefit regardless of Eul's renunciation

[1] Articles 211 and 741 of the Civil Act / [2] Articles 211 and 741 of the Civil Act

[1] Supreme Court Decision 97Da52844 Decided May 8, 1998 (Gong1998Sang, 1583) Supreme Court Decision 2010Da84703 Decided May 26, 201

Plaintiff (Attorney Lee Byung-hee et al., Counsel for the plaintiff-appellant)

Mapo-gu Seoul Metropolitan Government (Law Firm Tae, Attorney Jeong Jong-dae, Counsel for defendant-appellant)

Seoul Western District Court Decision 2011Na4111 decided February 2, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul Western District Court Panel Division. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. According to the reasoning of the judgment below, the court below acknowledged the facts comprehensively based on the adopted evidence, and rejected the defendant's defense of waiver of exclusive right to use the land, on the ground that the defendant actually occupies and uses the land of this case as a road, while there is sufficient room to view that the original owner may not make a claim for return of unjust enrichment equivalent to the rent against the defendant who renounces his right to use and profit from the land of this case and occupies it as a road. However, in light of the circumstances as stated in its reasoning such as the process of the plaintiff's acquisition of the land in the public sale procedure, the plaintiff, a specific successor, can exercise his right to use and benefit against the defendant regardless of the waiver of the right to use

B. However, the decision of the court below which rejected the defendant's waiver of exclusive right to use for the following reasons is difficult to accept.

1) It is reasonable to view that a person who succeeds to the ownership of the land by means of auction, sale, payment in substitutes, etc. after the original owner of the land provides a part of the land as a site for a road without compensation and renounces the exclusive and exclusive right to use the land, and then subsequently succeeds to the ownership of the land by means of auction, sale, and payment in substitutes after the residents passed the land without compensation. As such, it is not possible to exercise the exclusive and exclusive right to use the land as to the part of the land provided as a road, since it is reasonable to deem that such a person acquired the ownership of the land, even though he/she is aware that there are at least such circumstances. Therefore, even if a local government occupies and manages a part of the land as a road, no damage may be caused to a specific successor, and since a local government does not have any profit, a specific successor cannot file a claim for return of unjust enrichment (see, e.g., Supreme Court Decisions 97Da52844, May 8, 1998; 2

2) According to the facts duly confirmed by the court below and the evidence of its employment, the non-party: (a) divided the land that was substituted and sold the remaining land to a housing site; (b) the land in this case was provided as the only passage from the remaining land partitioned and sold to the public road, and without compensation, through which neighboring residents use the land as a passage route; and (c) the defendant thereafter occupied the land as a de facto controlling entity by expanding the construction into the sewage culvert buried on the land in this case; and (d) the land in this case was disposed of by public sale under the name of the non-party and the plaintiff was awarded a successful bid and completed the registration of ownership transfer on July 15, 2010.

3) If the factual basis is the same, the non-party, the original owner of the land, provided the land of this case as a passage to the public road to contribute to the sale of the land at the time of dividing the land, and renounced his exclusive right to use and benefit therefrom (see Supreme Court Decision 95Da3619, Apr. 12, 1996). Since it is reasonable to deem that the plaintiff acquired the land of this case with the knowledge that there is a burden of restriction on use and benefit in the public sale process as above, it cannot be said that any damage has occurred to the plaintiff, and the defendant, the local government, has no profit. In such a case, the plaintiff, the specific successor, even if the defendant actually occupies the land of this case, cannot make a claim for return of unjust enrichment from the defendant, even if he actually occupies the land of this case.

4) Supreme Court Decision 2009Da228, 235 Decided March 26, 2009, cited by the court below on the ground that the Plaintiff may exercise the right to use and benefit from the land against the Defendant regardless of the waiver of the original owner’s right to use and benefit from the land. The Supreme Court Decision 2007Da83649 Decided July 9, 2009, which held that the land owner may exercise the right to claim real rights based on the ownership and seek removal of the building and the transfer of the land by exercising the right to claim real rights based on the ownership. The Supreme Court Decision 2007Da83649 Decided July 9, 2009 is related to the land owner’s consent to use the land so that the project implementer can proceed with the project for the implementation of the redevelopment project before the approval and public notice of the management and disposal plan of the redevelopment project. The above Supreme Court precedents cited by the court below are inappropriate since the original owner provided the land to the

5) Nevertheless, the lower court partially accepted the Plaintiff’s claim for return of unjust enrichment on the grounds stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the waiver of the owner’s right to use land which a local government actually occupies as a road, thereby adversely affecting the conclusion of the judgment. The Defendant’s appeal is with merit, without having to determine the remainder of the grounds of appeal

2. Plaintiff’s ground of appeal

As seen above, it is reasonable to deem that the original owner renounced the exclusive and exclusive right to use and benefit from the land of this case, and that the Plaintiff acquired the ownership with knowledge of such circumstances at least that there is a limit to the use and benefit from the land of this case, and there is a lot of room to deem that the Plaintiff cannot be deemed to have suffered any loss due to the Defendant’s possession. As such, the Plaintiff’s appeal as to the part against the Plaintiff in the judgment below as to

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)