The State or a local government shall calculate the amount of unjust enrichment on the land occupied and used by it in the road site.

In a case where the State or a local government occupies the land which is actually being used for the general public’s traffic from the past to the road, the value of the land in order to calculate the amount of unjust enrichment shall be appraised according to the current status of the road, i.e., the current status of the road. However, in a case where the State or a local government occupies the land which is not actually used for the general public’s traffic, it shall be appraised according to the actual use situation at the time of incorporation of the land into the road without considering the circumstances incorporated into the road. It shall not be deemed that the situation where the land owner acquired the land, knowing that it is a

Article 741 of the Civil Act

Supreme Court Decision 92Da19804 delivered on August 24, 1993 (Gong1993Ha, 2572) Supreme Court Decision 92Da19378 delivered on January 25, 1994 (Gong1994Sang, 789) Supreme Court Decision 94Da32085 delivered on September 30, 1994 (Gong1994Ha, 2860) Supreme Court Decision 95Da45149 delivered on December 22, 195 (the same purport)

Plaintiff 1 and two others

Changwon-si (Attorney Kim-young, Counsel for the defendant-appellant)

Changwon District Court Decision 94Na2439 delivered on October 27, 1994

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal and the supplemental appellate brief submitted after the lapse of the period are examined as well.

According to the reasoning of the judgment below, the court below rejected all of the defendant's assertion on the ground that since the plaintiffs completed the registration of ownership transfer after the completion of the defendant's assertion on the land of this case, the defendant cannot assert the acquisition by prescription against the plaintiffs, and the defendant acquired the servitude by custom or special servitude under Article 302 of the Civil Act, or the transfer and receipt as the original owner of the land of this case by providing it as a passage to neighboring residents, and granting the right to use and benefit free of charge. The plaintiffs cannot exercise the right to use and benefit. The plaintiffs' claim of this case cannot be viewed as violating the abuse of rights or the principle of good faith. In light of the records, we affirm the judgment of the court below, and there is no error of law such as the theory of lawsuit.

The basic price of land for calculating unjust enrichment is, in a case where the State or a local government occupies land which is actually being used for the general public traffic from the previous one as a road, it shall be appraised according to the current condition of the road, i.e., in a case where the State or the local government occupies land which is actually used for the general public traffic, but in a case where the State or the local government occupies land which is not actually used for the general public, it shall be appraised according to the actual use situation at the time of incorporation into the road without considering the circumstances of incorporation into the road, and it shall not be deemed that the land owner acquires land with the knowledge that it is a land which is subject to restriction on the exercise of private right as a site at the time of acquisition of the land (see, e.g., Supreme Court Decisions 92Da19804, Aug. 24, 1993; 94Da32085, Sept. 30, 194). The court below determined that the land of this case should be incorporated into the road, and it should not be used, as the land category of this case.

All arguments are without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)