Plaintiff 1 and one other (Law Firm Shin & Yang, Attorneys Han Man-woo, Counsel for the plaintiff-appellant)

Ulsan Metropolitan City North-gu (Law Firm LLC, Attorneys Jeong Man- rules et al., Counsel for the defendant-appellant)

September 17, 2015

Ulsan District Court Decision 2014Ra9150 Decided February 13, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from the date following the delivery of a copy of complaint 5,475,000 won and the amount calculated by applying each 20% interest per annum from the next day to the date of a judgment of the first instance, and from the next day to the date of complete payment, the amount calculated by applying each 1,096,700 won per annum from January 2, 2014.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiffs' claims corresponding to the above revocation shall be dismissed.

1. Basic facts

A. The registration of ownership transfer was made on July 2, 1932 on the non-party 3, the maintenance of 1907 square meters in Ulsan-gu ( Address 1 omitted). After the non-party 3 died on December 23, 1939, the registration of ownership transfer was completed on August 15, 1940 on the ground of inheritance in the non-party 1 (the name of the Changnam-gu in Cheongsan-gu) who is his/her head on August 15, 1940. On August 31, 1981, the registration of ownership transfer was completed on July 31, 197 pursuant to the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094, Dec. 31, 197; hereinafter referred to as the "Special Measures Act"), and the ownership transfer was made on July 19, 197.

B. However, the non-party 2, the inheritor of the non-party 1 (Magsung), filed a lawsuit with the Ulsan District Court seeking the cancellation of the ownership transfer registration under each name against the head of Ulsan Metropolitan City and the defendant (the above court 2000Gadan5021). The above judgment was finalized on November 29, 2000. The above judgment became final and conclusive on December 6, 200. On April 12, 2001, each of the above ownership transfer registration was revoked, and on the same day, the ownership transfer registration was completed in the non-party 1 (Magsung) and the non-party 2.

C. On May 15, 2003, Nonparty 2 sold the instant land to Nonparty 4 and completed the registration of ownership transfer on May 16, 2003. Nonparty 4, on July 9, 2003, sold the instant land to Nonparty 1, Nonparty 5, and Nonparty 6, respectively, completed the registration of ownership transfer at the ratio of 1/4, 1/4, 2/4 on July 10, 2003, and Nonparty 5 completed the registration of ownership transfer on November 10, 2005 on the same day after selling his share to Plaintiff 2.

D. The instant land is part of ○○ reservoir created around 1943 through 1945. Of the land constituting the said reservoir, there was a lawsuit seeking the cancellation of the ownership transfer registration under each name against the Defendant, U.S.-gun and the Defendant in Ulsan District Court, Ulsan District Court, U.S. (No. 203Da18766, Oct. 22, 2004). Of the land constituting the said reservoir, the ownership transfer registration under the Act on Special Measures for the Development of Ulsan-gun, U.S. has been completed, as seen in the above Section A, and Nonparty 7, who is the descendants of the former owner of the land, filed a lawsuit seeking the cancellation of ownership transfer registration under each name against the Defendant (No. 203Da18776, Oct. 22, 2004). The appeal was dismissed as it became final and conclusive.

[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1, 4 through 6 (including various numbers), the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

1) As to whether the Defendant occupied the instant land, the following circumstances, which are acknowledged as comprehensively taking into account the facts as seen earlier and the statement in Eul evidence No. 1, namely, the Defendant registered and managed ○○ reservoir on the reservoir management ledger. According to the above reservoir management ledger, the manager of ○○ reservoir is the Defendant’s life industry, and the ○○ reservoir obtained approval for the establishment, confirmation, and implementation of the project in 1945. On December 23, 2010, the Defendant 18,952,000 won in working expenses, and opened and repaired the party maintenance and right-building replacement. From October 24, 2008 to April 10, 2014, the Defendant did not have the Defendant’s employees to conduct safety inspection, and the Defendant did not possess and manage the instant land as part of the instant reservoir’s property, and it is difficult to deem that the Defendant did not possess and manage the instant land as part of the Defendant’s current land, in light of the following circumstances.

2) On this ground, the defendant asserts that since it was merely possessed as a reservoir management agency after the ownership of the land of this case was lost, it cannot comply with the plaintiffs' request for return of unjust enrichment because it was not possessed as a de facto controlling agent, and therefore, it is also deemed that possession as a reservoir management agency of local government is also an occupation subject to the request for return of unjust enrichment. Therefore, the defendant'

B. Judgment on the defendant's defense

The defendant asserts to the effect that the non-party 1 renounced his exclusive right to use and benefit from the land of this case at the time of the creation of ○○ Reservoir, and thereafter the land of this case became the lower land of the reservoir up to now, and since the plaintiffs knowingly purchased the land of this case, they cannot file a claim for unjust enrichment equivalent to the royalty with the defendant.

In full view of the purport of evidence evidence No. 6 of this case, the land of this case was exempt from taxation on May 10, 194, and the land category was changed from the paddy field to the maintenance on March 30, 1945, and the lease price (current officially assessed individual land price) at the time was cancelled. Since then, it can be recognized that the land of this case is the lower-class land of ○○ Reservoir reservoir. However, in the construction of the above reservoir, there is no evidence to acknowledge that the government agency, a telegraph, purchased the land of this case or paid compensation. In light of the fact that Nonparty 2 restored the ownership of the land of this case through litigation, it is difficult to recognize that Nonparty 1 (including each number) had no exclusive right to use and purchase the land of this case or there was no other evidence to acknowledge that the plaintiffs acquired the ownership of the land of this case on March 3, 194.

C. Scope of return of unjust enrichment

The gain accrued from the possession and use of real estate shall be equivalent to the rent, except in extenuating circumstances. According to the appraisal result by Nonparty 8 of the first instance trial appraiser, the rent for the land in this case from January 1, 2009 to December 31, 2013 is the aggregate of KRW 8,756,570, and the rent for the month from January 1, 2014 to December 31, 2014 can be recognized as the fact that causes 182,790, and the rent for the month from January 1, 2014 to December 31, 2014 shall be confirmed as the same amount.

Therefore, the defendant has a duty to pay to the plaintiffs 2,190,614 won [2,189,142 won (=8,756,570 won ¡À4,570 won ¡À4, hereinafter the same shall apply] + unjust enrichment 1,474 won ± 31,474 won ± 31 ± 31 ± 41 ± 44] and to pay damages for delay from April 19, 2014 to December 31, 2013, which is deemed reasonable to dispute about the existence and scope of the defendant's obligation to perform, 5% per annum under the Civil Act from January 1, 2009 to December 31, 2013 ±6% per annum from January 1, 2014 to February 13, 2015; 40% per annum from the date following the delivery of a copy of the complaint in this case to the date of complete payment; 2014.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is unfair with a different conclusion, but the judgment of the court of first instance cannot be modified to the defendant who is the appellant under the principle of prohibition of disadvantageous alteration in this case which only the defendant appealed against the defendant. Thus, the defendant's appeal is dismissed. It is so decided as per Disposition by the court below.

Judges Jeon Soo-chul (Presiding Judge)

(1) Supreme Court Decision 2001Da70900 Decided March 12, 2002 cited by the Defendant is that the form of occupation of a road by the State or a local government is divided into possession as a road management authority and possession as a de facto controlling entity. The purport of the Supreme Court Decision 2001Da70900 Decided March 12, 202 is that possession as a de facto controlling entity can be recognized if it satisfies certain requirements even if possession as a road management authority is not recognized. It does not purport that

2) Rather, according to the statement in Eul evidence No. 4, the above court acknowledged that, in the lawsuit of cancellation of ownership transfer registration filed by the non-party 2 against the Ulsan District Court against the Ulsan District Court and the defendant (the above court No. 2000 Ghana5021) the Defendant’s office, a telegraphic body, purchased the land from the land owner or occupied and managed the reservoir without permission, without paying compensation, when the government office, which is a telegraphic body of the Defendant, constructs a reservoir in a single unit including the instant land.