A. Whether the expenditure expense and operating profit should be deducted within the scope of return of unjust enrichment

(b) Where earth and rocks extracted from a forest owned by another person without any lawful title are transported and used at the place of a bank raising work and the sum of material costs, labor costs, expenses, etc. is paid as the price for earth and rocks, the case excluding labor costs and expenses under the pretext of return and gains;

(c) Whether to claim consolation money for mental suffering caused by physical infringement;

(d) The case reversing the judgment of the court below rejecting the claim for consolation money where the restoration to the original state becomes impossible because the forests and fields which have another's grandparents are damaged extensively by heavy equipment without going through lawful procedures;

A. In general, in cases where it is impossible for a beneficiary to return the original property because he/she disposed of the property benefiting without any legal cause, barring any special circumstance, the price to be returned at the time of such disposal, or the expenses to be incurred by the beneficiary in order to obtain the benefits without any legal cause, shall be deducted within the scope of the benefits to be returned by the beneficiary. The so-called operating profits remaining by the beneficiary using the property benefiting from his/her own effort, etc., even if the beneficiary did not intervene in the act of the beneficiary under social norms, shall be deducted within the scope of the benefits to be returned by the beneficiary, unless it is within the extent that the

(b) The case affirming the judgment of the court below, which excludes labor costs and expenses from the scope of return gains where the earth and rocks extracted from the forest owned by another person without a legitimate title are transported and used at the embanking site and the earth and rocks are collected as the price for raising earth and stones by adding those materials, labor costs, and expenses.

C. In general, the victim who suffered physical damage due to other person’s tort should be deemed to have recovered from mental suffering by compensating for such property damage. Therefore, even if the claim for consolation money is not allowed, if it is recognized that the victim has suffered from irrecoverable mental damage even if compensation for the property damage was made, it shall not be rejected the claim for consolation money for mental suffering caused by the physical damage.

(d) The case reversing the judgment of the court below rejecting the other person's claim for consolation money, which is the forest owner, in case where the restoration to its original state becomes impossible due to the wide damage of the forests and fields which have another person's grandparents by using heavy equipment without due process, such as permission for damage

(b)Article 741, Section 747(c) of the Civil Code;

A. Supreme Court Decision 65Da181 delivered on April 27, 1965, 80Da2885,2886 delivered on August 11, 1981 (Gong1991,1902) 91Da25628 delivered on December 10, 1991 (Gong1992,485) 91Da3834 delivered on May 26, 1992 (Gong192,203)

[Defendant-Appellee] Plaintiff 1 et al.

Seoul High Court Decision 200Na1448 delivered on August 1, 200

Gwangju High Court Decision 93Na3638 delivered on April 20, 1994

1. The part of the judgment below against the plaintiff as to the claim for consolation money shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

2. The plaintiff's remaining appeal is dismissed.

The grounds of appeal are examined.

1. In general, in cases where it is impossible for a beneficiary to return the original property because he/she disposed of the property benefiting without any legal cause, the price to be returned shall be the price at the time of such disposal unless there are special circumstances (see, e.g., Supreme Court Decisions 65Da181, Apr. 27, 1965; 80Da285, Aug. 11, 1981; 80Da2886, Aug. 11, 1981). In such cases, the expenses paid by the beneficiary in order to obtain non-legal grounds shall be deducted within the scope of the benefits to be returned by the beneficiary. The so-called operating profit remaining by using the property benefiting from his/her own effort, etc. shall be deducted within the scope of the benefits to be returned by the beneficiary, unless the beneficiary gets involved in the act of the beneficiary.

As legally determined by the court below, if the defendant transported the earth and rocks extracted from the forest of this case owned by the plaintiff using cream trucks, which is a heavy equipment in the forest of this case owned by the plaintiff, to the ground of appeal, and used the earth and rocks at the ground of appeal 388 won, labor cost, 277 won, and 833 won, which are the earth and rocks 1,498 won from the above association, with the earth and rocks 1,000 won, the above earth and rocks 388 won, labor cost, 277 won, and 833 won which are the earth and rocks 1,498 won from the above association. Of the earth and rocks 3,00 won, the above earth and rocks are included in the forest of this case as stated by the court below in addition to the expenses to extract the above earth and rocks (e.g., expenses for use and labor cost) and the above earth and rocks excluding the above earth and rocks from the above association's profits. Therefore, it is reasonable to view that the above earth and rocks are not included in the ground of appeal.

2. In general, since a victim who suffered physical damage due to other person's tort shall be deemed to have recovered from mental suffering by compensating for such property damage, it is not allowed to exercise the right to claim consolation money for this reason (see, e.g., Supreme Court Decision 90Da20206, Jun. 11, 1991; Supreme Court Decision 91Da25628, Dec. 10, 1991; Supreme Court Decision 91Da3834, May 26, 1992; etc.). However, if it is recognized that even if compensation for property damage is made, it would not be possible to reject the claim for consolation money for mental suffering resulting from such physical damage.

According to the court below's lawful determination, the forest of this case is the forest where the plaintiff's grandparents are installed. The defendant used approximately 52,038 cubic meters of the forest of this case from 11,478 cubic meters of the forest of this case owned by the plaintiff from October 10, 1989 to December 19 of the same year without undergoing lawful procedures, such as permission to damage the forest of this case. Thus, the defendant damaged the forest of this case by cutting up soil and rocks from about 52,038 cubic meters of heavy equipment from 11,478 cubic meters of the forest of this case. Accordingly, the defendant did not go through legitimate procedures in damaging the forest of this case, as well as the degree of damage is wide as 41% of the entire area. According to the evidence employed by the court below, the degree of damage exceeds the exchange price of the forest of this case, and since it is impossible for the plaintiff to restore the forest of this case to its original state due to the plaintiff's impossibility of installing the forest of this case.

Therefore, the court below's rejection of the plaintiff's claim for consolation money on the ground that the plaintiff's mental suffering caused by damage to the forest of this case was a damage due to special circumstances that cannot be recovered by compensation for property damage, and it is difficult to view it as such special circumstances solely with the fact that the plaintiff's grandparents have a tombstone in the forest of this case, and otherwise there is no assertion or proof as to the special circumstances in this case and that the defendant knew or could have known it. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, the part of the judgment of the court below against the plaintiff as to the claim for consolation money is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal by the plaintiff are without merit, and it is so decided as per Disposition by the assent of

Justices Park Jong-chul (Presiding Justice)