A. The meaning of occupation and use of a road as a requirement for collecting unjust enrichment from the upper party for occupation and use of a road under Article 80-2 of the Road Act (=special use)

(b) Criteria and methods for determining whether roads are specially used;

A. The term "road occupation and use" as stipulated in Article 40 of the Road Act means the so-called special use of a specific part of a road, which is used for a specific purpose in a tangible and fixed manner, separately from such general use, with respect to a road for public use by the general public. Thus, it is possible to collect unjust enrichment from the road occupation and use fees per party pursuant to Article 80-2 of the Road Act, only when the contents of the act of occupying and using a road without permission constitute such special use.

B. The special use of a road is not necessarily exclusive or exclusive, but it is possible to coexist with the general use of a road according to its purpose of use. In such a case, it cannot be said that the area of the road use is the common use of the road at the same time for the traffic of the general public. Thus, if the use and function of the underground connecting passage between subway stations and the plaintiff's office houses are mainly for the traffic convenience of the general public, and it is used as the passage roads for the people who enter the above building, the above underground connecting passage is for the general use of the road. On the contrary, if the main use and function of the above underground connecting passage are to be used as the passage of the people who enter the building owned by the plaintiff, the above underground connecting passage is provided for the special use, and if it is not restricted to the passage of the general public, the construction and use of the above underground connecting passage shall be deemed to be the occupation and use of the road, and if the use of the above underground connecting passage falls under any of the above cases, it shall be determined specifically by examining the location and structure of the above underground connecting, the relation between the plaintiff and the general road and the general use situation.

Articles 40 and 80-2 of the Road Act

Supreme Court Decision 90Nu9100 Delivered on April 12, 1991

National Fire & Marine Insurance Co., Ltd., Counsel for plaintiff-appellee

Attorney Jung-gu, Seoul Metropolitan Government

Seoul High Court Decision 89Gu6060 delivered on October 11, 1990

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the plaintiff newly constructed 21 stories above ground and 6th underground floors within the redevelopment project zone in Seoul, Jung-gu. The court below determined that the plaintiff's construction of underground passages connecting the above new apartment to the above new apartment zone 2nd underground passages of the Seoul, thereby promoting convenience in the use of subway lines to the general public, especially those using subway lines, as well as providing convenience in passage to the general public. On January 14, 1986, the plaintiff filed an application for the installation of the above underground connecting passage to the head of Seoul Special Metropolitan City Mayor for the purpose of executing the above underground connecting installation work of the above 197-168 square meters above to the defendant for the purpose of executing the above underground connecting installation work of the 197-10 square meters above, and that the plaintiff's application for the permission and approval for the excavation of the above underground passages to the defendant for the purpose of using the above underground connecting installation of each underground passage to the above new underground passage of the 197-10 square meters above.

2. According to the provision of Article 80-2 of the Road Act, with respect to a person who occupies and uses a road without obtaining permission to occupy and use the road under the provision of Article 40 of the Road Act, the amount equivalent to the occupation and use fees for the occupation and use period can be collected as unjust enrichment. The occupation and use of a road under the provision of Article 40 of the Road Act refers to the so-called special use of a specific part of a road, which is used for a specific purpose in a tangible and historical manner, apart from such general use, with respect to a road for public use by the general public. Thus, if the contents of the act of occupying and using a road fall under the above special use, the unjust enrichment of the party under the provision of Article 80-2 of the Road

According to the records, since the period of occupation and use specified in each letter of permission to occupy and use a road for the plaintiff is from the installation of each underground connecting passage to the time of reinstatement, it is not clear that the period of occupation and use expires in itself. However, according to each letter of evidence No. 1, No. 1, No. 2 (Imposition of Road Occupancy Charges for each underground connecting passage facility) and evidence No. 3-2 (decision) without dispute, the defendant shows that the period of occupation and use permission to the plaintiff for each underground connecting passage is the same as the construction period of each underground connecting passage, and the construction completion period of each underground connecting passage is the same as the construction completion period of each underground connecting passage, and thus the permission to occupy and use a road is invalidated due to the expiration of each of the above period of occupation and use permission. Accordingly, it is reasonable to impose unjust enrichment per each of the above road occupation and use permission.

However, the court below maintained the above underground connecting passage according to the approval conditions that the plaintiff can not use it for the purpose of pursuing the plaintiff's private profit and should open it at all times to the general public. After its completion, it recognized that many general citizens, other than those who have access to the plaintiff's private house, have used it, and determined that the plaintiff is not an exclusive and exclusive occupation of each underground part of the above road since it cannot be deemed that the plaintiff has occupied it exclusively or exclusively.

However, the special use of a road is not necessarily exclusive or exclusive, but it is possible to coexist with the general use of a road according to its purpose of use, and in such a case, it cannot be said that the area of the road is the common use of the traffic of the general public at the same time.

In this case, if the use and function of each underground connecting passage as mentioned above is primarily for the convenience of traffic of ordinary citizens, and it is used for the passage of the people who enter the plaintiff's building, each underground connecting passage is for the general use of roads and it is difficult to see that it is for the plaintiff's special use, and the plaintiff's act of installing and using it is for the purpose of the use of roads. However, the main use and function of each underground connecting passage as mentioned above is for the use of roads as the passage of the people who enter the plaintiff's building. However, it is not restricted to the passage of the general public, and if it is merely for the use of roads, each underground connecting passage is provided for the special use of the benefits of the plaintiff's building rather than for the general use, the act of installing and using them shall be deemed to be the occupation and use of roads.

Whether the installation and use of each underground connecting passage of this case falls under any of the above cases shall be determined by specifically examining the location and structure of each underground connecting passage of this case, connection with the building owned by the plaintiff and the general roads, general use status of the general public, etc. It is not concluded that the condition of installation approval of each underground connecting passage of this case, such as the original adjudication, has a provision that the plaintiff cannot use it for the purpose of increasing private profit and should not be opened at all times for the purpose of using it, and therefore, it does not constitute a special employee of the road solely on the fact that many general citizens other than those who have access to the building owned by the plaintiff use it.

Although the court below should have reviewed the above points more closely and judged whether it constitutes the road occupancy and use, it is reasonable to discuss this point because the court below erred by misapprehending the legal principles as to the road occupancy and use of a road and incomplete deliberation, which affected the conclusion of the judgment.

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)