[1] In a case where the State or a local government has occupied a road as a de facto controlling entity, the basic price and expected interest rate for calculating the amount of unjust enrichment on the land

[2] In a case where a public announcement of recognition of routes and a public announcement of determination of road zones has been made, whether the actual possession of the local government responsible for maintaining and managing the roads is excluded (negative)

[1] In a case where the State or local governments have previously been used as a road for the purpose of the general public through construction of a road under the Road Act, etc. with the construction of a road, which is in possession of or actually required for construction of a road as the road management authority, and thereafter possess a road as the de facto controlling entity, the basic price for calculating the amount of unjust enrichment equivalent to the rent for the land shall be limited to the road, which is the actual usage situation at the time when the land is to be incorporated into the road, i.e., the current state of the road, and the expected interest rate that serves as the element in calculating the amount of unjust enrichment shall be determined in consideration of the interest rate of the State and local government bonds, the long-term loan interest rate of the bank, the ordinary interest rate of real estate transactions, the rate of

[2] In a case where the possession and management of a local government continues after the construction of a road by the State’s public announcement of the approval of the route of a general national highway and the public announcement of the determination of a road zone under the Road Act, barring special circumstances, it is reasonable to deem that the possession of a local government, which is in charge of maintaining and managing the road, continues even after the State’s act of building a road, is performed, barring special circumstances, such as

[1] Article 741 of the Civil Act, Article 25 of the Road Act, Article 38 of the State Property Act, Article 26 of the Enforcement Decree of the State Property Act, Article 83 of the Local Finance Act, Article 92 of the Enforcement Decree of the Local Finance Act / [2] Article 192 of the Civil Act, Articles 13 and 25 of the Road Act

[1] Supreme Court Decision 93Da62515 delivered on June 14, 1994 (Gong1994Ha, 1954), Supreme Court Decision 95Da18451 delivered on November 28, 1995 (Gong1996Sang, 162), Supreme Court Decision 94Da57138 delivered on December 22, 1995 (Gong1996Sang, 484 delivered on March 26, 1996)

Plaintiff 1 and one other (Attorney Park Jae-woo et al., Counsel for the plaintiff-appellant)

Pakistan-gun (Attorney Professional Young-young, Counsel for defendant-appellant)

Seoul High Court Decision 95Na6252 delivered on December 22, 1995

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

(1) We examine the Plaintiffs’ grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The court below, based on the overall evidence of the city, found that the land was actually owned by the government on December 13, 1984 with respect to the land of this case among the real estate listed in the separate sheet (hereinafter referred to as the "land of this case"), and the land of this case was actually owned by the government on January 15, 197, and the ownership transfer registration was made on July 26, 193 with respect to the whole land of this case. The land of this case was originally owned by the government on the road of this case and was owned by the government on the road of this case on the condition that the land of this case was owned by the government on the condition that the land of this case was actually owned by the government on the condition that the land of this case was owned by the government on the condition that the land of this case, which was actually owned by the government on the condition that the land of this case was owned by the government on the condition that the land of this case was owned by the government on the condition that the land of this case was owned by the government on the road of this case 17th.

In cases where the State or local governments have been actually used as a road for the purpose of the general public due to the construction of a road under the Road Act, etc. and possess the form of a road as a de facto controlling body after the construction of a road is in possession of or actually necessary for the construction of a road, the basic price for calculating the amount of unjust enrichment for the land is the one limited to the actual usage of the road as at the time of incorporation into a road, i.e., the one limited to the actual usage of the road as at the time of incorporation into a road. (See Supreme Court Decision 95Da18451 delivered on Nov. 28, 1995). Meanwhile, in calculating the amount of unjust enrichment for the land, the expected interest rate, which serves as an element, shall be determined in consideration of the rate of national and public bonds, the long-term interest rate of a bank, the normal interest rate of real estate transactions in the city, the rate of real estate transactions in the State Property Act and the Local Finance Act, and there is no error in the misapprehension of legal principles as at the time of facts.

(2) We examine the Defendant’s grounds of appeal.

The court below rejected the defendant's assertion that the land of this case Nos. 2 and 3 is part of the national highways and there is no benefit from the possession and use of the national highways. However, inasmuch as the above land is incorporated as part of the national highways in light of the facts acknowledged above, and the defendant actually provided as the passage of the residents while the management and maintenance of the above roads are delegated by the State, etc., it cannot be deemed that the defendant's management of the above roads is solely for the State, and it is also beneficial to the defendant.

However, according to records, if the defendant's possession and management of the land of this case (the land of this case was not included in the national highways as seen above) incorporated into the national highways is not found to have been entrusted with the maintenance and management of the above land by the State, and it is erroneous that the court below recognized that the defendant was entrusted with the maintenance and management of the above land by the State. However, as seen above, as seen in the facts and the materials attached to the records as seen earlier, it is reasonable in the court below's determination that the defendant's possession and management of the land of this case, which was the existing road that was occupied and managed as the de facto controlling entity from around March 14, 1981, was continued by the State through the public announcement of the approval of routes and the determination of road zones under the Road Act, and the construction of the road was continued thereafter, the defendant's possession and management of the land of this case, which is the general national highway under the Road Act. Thus, the court below's rejection of the judgment below's error has no merit.

(3) Therefore, all appeals by the plaintiffs and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)