(a) A case of unjust enrichment resulting from the possession of a site on the ground that the site is used as a site for the use of a building on the ground, but for traffic, walking, parking, etc., and the site owner occupies the site as one of co-owners of the building as a site for the building;

(b) The case holding that if a site owner opened a road, provided a site to build an apartment building on the ground, and purchased a store constructed on the site due to the implementation of the project, the site owner may be deemed to have waived the exclusive right to use and benefit from the road, etc. and consented to use the site.

(a) The case holding that unjust enrichment from the possession of a site on the ground that the site is used as a site for the use of a building on the ground, but is used for traffic, walking, parking, etc., and the site owner occupies the site as one of co-owners of the building as a site for the building;

(b) The case holding that if a site owner opened a road, provided a site to build an apartment building on the ground, and purchased a store constructed on the site due to the implementation of the project, the site owner may be deemed to have waived the exclusive, exclusive, and exclusive use rights to the building site with the consent to use the road, etc. by building the site.

Article 741 of the Civil Act

[Judgment of the court below]

Attorney Park Jae-il, Counsel for the defendant-appellant

Seoul High Court Decision 92Na7971 delivered on November 20, 1992

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

1. We examine the first ground for appeal.

According to the reasoning of the judgment below, the court below determined that, upon entering into the contract for construction of the housing site originally owned by the non-party 1 on September 9, 1985, the ownership transfer registration was completed in the name of the plaintiff, the defendant extended the three days in Seoul around September 1967 to alleviate traffic demand in urban areas, at the same time, constructed roads with a width of 40 meters connecting the three days in the old and disorderly fallen market by removing the old and disorderly fallen market and constructing the modern shopping apartment building on the ground, and that the plan for the implementation of the housing site construction was formulated for the purpose of developing and modernizationing the center center center center and developing the modern commercial building site on the ground. Accordingly, the head of Jongno-gu Office, upon the approval of the defendant on October 23 of the same year, determined that the non-party 1 was to be transferred to the non-party 1 company for the extension of the road construction site to the third party company and the construction right of the commercial building site construction, the non-party company, instead of granting the right to use the above housing site and the construction right to the land.

However, according to the health stand as acknowledged by the defendant, as to whether the plaintiff suffered damage in the possession of the above part of the site of this case, as to whether the plaintiff suffered damage, Eul evidence Nos. 1 through 4, Eul evidence Nos. 9-11, 11-24, the first instance court's on-site inspection, and the appraisal by the appraiser Nos. 2 of the first instance court, as to whether the above part of the site of this case was owned by the defendant, the site of this case is part of the site of the 1st floor and the 15th floor constructed by the non-party Han Il Construction Co., Ltd. on the ground, including this, and the columns, fences, fences, etc. of the building of this case are installed, and delivery, roadway and the parking lot are installed on the other part of the site of this case with the time of original inquiry, and in particular, the parking lot is managed by the residents' association of the above apartment houses with the permission of the head of the Gu free of charge, and the plaintiff and the defendant did not use the above part of the building of this case.

After further review of the structure and use status of the building site of this case, the court below held that the owner of the building of this case including the plaintiff et al. possessed the building site of this case, and it is necessary to judge whether the defendant's assertion that the plaintiff could not incur loss to the plaintiff because the defendant did not occupy the building site of this case. However, the court below judged that the defendant suffered loss to the plaintiff in possession of the part of the original trial among the building site of this case. Thus, it is erroneous in the misapprehension of legal principles as to the possession of the road of this case and the loss caused to the unjust enrichment arising therefrom, or in the misapprehension of legal principles as to the damages caused

2. We examine the second ground for appeal.

According to the reasoning of the judgment below, when the head of Si/Gun/Gu entered into the construction contract for the housing construction project with the non-party company after obtaining the approval of the defendant around October 1967, the non-party company extended the third day from the head of Gu, and bears all expenses such as removal expenses, etc., and constructed the apartment building on the ground of the non-party company's 15th floor on the ground that the apartment building is owned by the non-party company, and the non-party company gave up the compensation among the land owners in the above construction area, and transferred the ownership of the non-party company's 2 and the third floor to the defendant, and the non-party company did not legally obtain the ownership transfer right to the non-party company's land from the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party ownership.

However, according to the whole purport of evidence Nos. 5-1, 3, 9-9 and all pleadings, the above non-party 1, the original owner of the share of the site of this case, provided the site of this case as the site of the apartment of commercial building constructed on that ground by the non-party 1, the non-party 1, who is the original owner of the share of the site of this case, and opened the road on that ground. On that ground, it can be seen that the non-party 1 provided the above share of the site of this case with the above construction of the apartment of commercial building. Accordingly, if the land of this case was implemented on a large scale including the site of this case, and the land of this case was provided as a road, etc., and the above non-party 1, the owner of this case, was to purchase the store of the apartment building constructed on that ground due to the execution of the project, the above non-party 1 cannot be deemed to have donated the share of the site of this case to the defendant.

The court below rejected the defendant's assertion that there is no evidence to acknowledge the authenticity of 1 and 3 of the above evidence Nos. 5-1 and 5-3, and it is necessary to judge the legitimacy of the defendant's assertion by urging the defendant to prove the authenticity of the above evidence's authenticity. However, the court below rejected the defendant's assertion that the defendant consented to the use of the above evidence as a road, etc. because there is no evidence to prove the authenticity of the above evidence which corresponds to the defendant's assertion, and there is no other evidence to prove it. Further, according to the evidence Nos. 7 and 9-11 of the evidence Nos. 9-11, the plaintiff acquired the above non-party No. 1 with the above non-party No. 7 and the above shares still belong to the above non-party No. 1. Thus, the court below should have reviewed the construction process of the road of this case, the circumstances leading to the construction of the above apartment building of this case, the use situation of the building site of this case, the plaintiff's purchase circumstances, etc.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)