Whether the owner of the land subject to the restriction under the Road Act has the right to claim a return of unjust enrichment against the city (affirmative)

If a landowner occupies and uses land without lawful compensation procedures under the Urban Planning Act or the Road Act, the land is occupied and used without legal title. Therefore, regardless of whether the Road Act is applicable, the Si has the duty to return unjust enrichment due to his possession. Therefore, the landowner cannot make a claim for return of unjust enrichment against the management of the road on the ground that only the ownership attached to the restriction on private right under Article 5 of the Road Act exists and the restriction on the ownership of the road is not extinguished unless the road is abolished.

Article 741 of the Civil Act, Article 5 of the Road Act

Supreme Court Decision 72Da2588 delivered on February 26, 1973, 72Da2396 delivered on March 20, 1973, 73Da1772 delivered on May 13, 1975, 76Da2692 delivered on October 10, 1979

Park Yong-su et al., Counsel for the plaintiff-appellant-appellee

Attorney Lee Sung-soo, Counsel for the plaintiff-appellant in Ulsan-si

Supreme Court Decision 80Da2170 Delivered on November 11, 1980

Daegu High Court Decision 80Na1333 delivered on May 6, 1982

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

The plaintiffs' grounds of appeal are examined.

According to the reasoning of the judgment below, in order to acquire the land necessary for the construction of the above road from Busan to Busan, on or before May 1925, which is the shipbuilding era, by its macrofic evidence, the court below rejected the plaintiffs' right to use the above land under the above-mentioned land's ownership transfer registration for the following reasons: the Ulsan-dong 84-215 square meters (65 square meters, land category: 33 square meters), the owner of the land, at the time of the Dong-dong 134-1, the Dong-dong 134-dong 109 square meters (33 square meters, current land category: 100 square meters), after purchasing the above land or being donated the above land, the above land was constructed as a building site, without being changed to the previous land category of the above land before August 20, and the plaintiff's ownership transfer registration for the above land was not made, and the plaintiff's right to use the land to the above land under the above-mentioned land's ownership transfer registration is still designated as the plaintiff's right to the above land.

1. However, the court below's examination of the evidence as to whether Ulsan-do, the road construction authority, purchased or donated this case's land from the owner at the time of this case's construction, compared to the records, Eul's evidence No. 1, Eul's evidence No. 5-1, Eul's evidence No. 5-4, each map, Eul's evidence No. 2-1, and Eul's evidence No. 2-2 were assigned to the road, and each of the above evidence No. 2-1 and No. 2 is merely the fact that the above land category was changed as at the time of original adjudication. The above evidence No. 3-1 and No. 2 as a certified copy of the register of the court below's reasoning that this case's land was registered as the plaintiffs, and there was no direct relation with the above facts, and the testimony No. 5-2 and No. 5-3, including Kim Jong-sik's testimony was not sufficient to acknowledge that each of the above land was constructed as a witness at the time of the construction of this case's.

Therefore, the above evidence alone is that the road construction authority can not recognize the fact that the land was purchased or donated from the owner, as stated in its holding, but the court below found the above facts by only the above evidence, which affected the conclusion of the judgment by violating the law that found the facts without any evidence, and there is a ground for misunderstanding this.

2. If the defendant market price again speaks without legitimate title under the Urban Planning Act or the Road Act, without legitimate compensation procedure under the same Act and without legitimate title, occupies and uses this parcel of land, the defendant market without legal title. Thus, regardless of whether or not the land in this case is subject to the Road Act, the defendant market has the duty to return unjust enrichment due to its possession (see Supreme Court Decision 72Da2588 delivered on February 26, 1973; Supreme Court Decision 72Da2396 delivered on March 20, 197; Supreme Court Decision 73Da172 delivered on May 13, 197; Supreme Court Decision 76Da2692 delivered on February 8, 197; Supreme Court Decision 77Da508 delivered on October 10, 197). Thus, the plaintiff's right to claim the return of unjust enrichment due to the abolition of the road's right to claim the return of unjust enrichment against the plaintiff's above land in accordance with the provision of the Road Act shall not be subject to the above restriction on the plaintiff's right to claim for return of unjust enrichment.

Therefore, if the judgment of the court below is not reversed, it goes against the justice and equity, so the judgment of the court below is reversed in accordance with the first and second grounds of appeal, and the case is remanded to the Daegu High Court for further proceedings. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Jong-young (Presiding Justice)