2015Da224902 Return of unjust enrichment

A

Eunpyeong-gu Seoul Metropolitan Government

Seoul Western District Court Decision 2015Na31050 Decided June 12, 2015

October 29, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In a case where the head of a Si/Gun, etc. fails to implement an urban planning project by publicly announcing an urban planning plan that is one of the urban planning facilities and uses the neglected land as a road for the practical public use of the traffic of the general public, if the owner of the land voluntarily provides the land as a road and grants a neighboring resident or the general public the right to exclusively use and benefit from the land, or if it is deemed that he/she gives up his/her exclusive and exclusive right to use and benefit from the land, he/she shall make a careful determination by taking into account the circumstances and scale of the land in question, the location and nature of the land in question to be used as a road, the relationship with other neighboring land, the surrounding environment, etc., and the degree of contribution to the land in order to efficiently use and benefit from the remaining land (see, e.g., Supreme Court Decision 95Da39946, Nov. 1, 195).

나. 원심판결 이유에 의하면, 원고는 1973. 10. 12. 서울 은평구 C 대 615m(이하 '이 사건 분할 전 토지'라고 한다)에 관하여 소유권이전등기를 마쳤고, 1982, 9. 28. 원고의 신청에 의하여 이 사건 분할 전 토지가 ㉠ C 대 44㎡, ㉡ B 대 141m, ㉢ D 대187㎡, ㉣ E 대 243㎡로 분할된 후 같은 날 위 B 대 141㎡의 지목이 '대지'에서 '도로'로 변경되어 B 도로 141m(이하 '이 사건 토지'라고 한다)가 된 사실, 이 사건 토지 부분은 위와 같이 분할이 되기 이전부터 1969. 1. 18.자 서울시 고시 F 결정과 1990. 3. 20.자 서울시 고시 G 및 1990. 4. 11. 서울시 은평구 고시 H 변경결정으로 폭 8m 미만의 소로 3류로서 서울 은평구 I의 도로개설구간에 편입되었고, 피고는 1995. 3. 25. 은평구 J 도시계획사업(도로) 실시계획 공람공고로 이 사건 토지를 주변 토지들과 함께 도로개설공사로 인한 보상 대상으로 공고한 사실을 알 수 있다.

The above facts and the following circumstances revealed by the evidence duly admitted by the court below, i.e., ① the Plaintiff had already acquired the ownership of the surrounding land including the instant land before acquiring the ownership of the land prior to the instant partition and had already determined urban planning facilities and given intellectual approval pursuant to the Urban Planning Act. Thus, even if the Plaintiff acquired the ownership of the land prior to the instant subdivision and sold it to a third party in installments, it would have been difficult to sell the instant land in reality. ② For this reason, the Plaintiff sold only the said D-187 square meters from the land prior to the instant subdivision, E-243 square meters to the third party, and the said C-4 square meters, which was difficult to be independently utilized due to the size or shape of the instant land, was difficult to sell it to the third party, and ③ the ratio of the ownership of the land prior to the instant subdivision reaches approximately 23%, and (4) the Plaintiff’s remaining land, excluding the ownership of the instant land from the land prior to the instant subdivision, were sold to the owner of the instant land through consultation with the instant implementation plan.

Ultimately, the lower court is justifiable to have rejected the Defendant’s defense that the Plaintiff renounced the exclusive right to use the instant land. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine

2. Regarding ground of appeal No. 2

A. The basic value of the land for calculating unjust enrichment is, where the State or a local government occupies or possesses a road as a road by constructing a road under the Road Act, etc. with respect to the land in which the State or a local government was actually in common use for the general public traffic from the past to the public, or is in de facto in possession of a road by performing construction works necessary for the form of the road, the road management authority shall appraise the land as limited to the road, i.e., the current status of the road. However, where the State or a local government occupies a land which is not in common use for the general public in the past as a road, it shall

An appraisal and assessment should be conducted, and the acquisition of land by the landowner is not different from the fact that the land is subject to restrictions on the exercise of private rights by being incorporated into a road site (see, e.g., Supreme Court Decisions 97Da35559, Nov. 1, 1997; 97Da3559, Apr. 14, 199). In addition, the presumption of autonomous possession is also applicable to a road possessed by the State or a local government. However, the State or a local government can be recognized as the commencement of possession of the road from the time when the construction of a road, such as extension, packaging, or installation of a sewerage system, is performed by the State or a local government, or when a road is constructed by the implementation of an urban planning project under the Urban Planning Act (see, e.g., Supreme Court Decision 97Da32626, Jul. 23, 199).

B. According to the reasoning of the lower judgment, the lower court determined that it was reasonable to calculate the amount of unjust enrichment for the instant land divided from the instant land before the instant partition on the basis of the “site which is its original land category,” on the ground that there was no evidence to support that the Plaintiff had already been using the instant land before the instant partition as a road at the time of December 1973, which acquired the ownership of the instant land before

C. However, the lower court’s determination is difficult to accept for the following reasons.

Examining the record in light of the legal principles as seen earlier, in order to calculate unjust enrichment arising from the Defendant’s unauthorized occupation of the instant land, the point at which the Defendant commenced possession of the instant land should first be determined at the time and later whether the part of the instant land was actually being used for the general public’s traffic at the time of the commencement of possession, and whether the actual use thereof should be determined at the time of being limited to the instant land by examining whether the land was left. In particular, even if the Seoul Special Metropolitan City or the Defendant’s urban planning facilities under the Urban Planning Act were decided for a long time with respect to the instant part of land, such circumstance alone cannot be deemed to have occupied the instant land as the Seoul Metropolitan City or the road management authority.

Nevertheless, without examining the above points properly, the court below determined that there was no evidence to find that the Plaintiff had already been used as a road at the time of the Plaintiff’s acquisition of ownership of the land before the subdivision of this case, and that the land of this case was used as a basis for calculating unjust enrichment on the basis of the site which was the original land category before the land classification was changed to a road, was erroneous in the misapprehension of legal principles as to calculating unjust enrichment, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Kim Yong-deok

Chief Justice Park Jong-young

Justices Kim Jae-han