208 Gaz. 70646 Doz.

△△ Co., Ltd.

Seoul Central District

Newly established representative director ○

[Defendant-Appellee] Defendant 1 and 2 others

1. Lighting time;

Representative ○○○

[Defendant-Appellee] Plaintiff 1 and 3 others

2. Suwon City:

Representative Market Kim ○

[Defendant, Appellant] Kim ○, Park ○, and Cheong-○, Counsel for defendant-appellant

July 14, 2009

August 11, 2009

1. Defendant Suwon-si is the Plaintiff:

(a) 66, 456, 000 won and 20% interest per annum from July 4, 2009 to the date of full payment;

(b) from July 12, 2008 to Annex II real estate list:

(1) Until delivery of the real estate as described in paragraphs (1) and (2) is completed, gold in proportion to 11,592,00 won per annum;

(2) Until the delivery of the real estate mentioned in paragraph (3) is completed, the amount of money in proportion to KRW 1,488,00 per annum; and the amount of money in proportion to KRW 2,316,00 per annum until the delivery of the real estate mentioned in paragraph (3) 4 is completed; and each payment is made.

2. The plaintiff's claim against the defendant Gwangju-si is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Mine-si is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Suwon-si is assessed against the said Defendant.

4. Paragraph 1 can be provisionally executed.

The judgment as referred to in Paragraph (1) and Paragraph (1) of this Article and the defendant Mine-si will pay to the plaintiff 5,484,000 won with 20% interest per annum from the day following the delivery of a copy of the application for amendment of the claim of this case to the day of complete payment, and with 1,500 won per annum from July 12, 2008 to the day of complete delivery of real estate listed in the real estate list in Attached Table 1.

1. Determination as to the claim against Defendant Mine Life Address

A. The plaintiff's assertion

Defendant Mine-si shall have a water supply and drainage pipe, urban gas pipeline construction works, asphalt, concrete, etc. on the real estate listed in the attached Table 1 List (hereinafter referred to as “the first attached mountain of this case”) owned by the Plaintiff.

As the subject of control over the above real estate is in fact possessed and used as the subject of control over the above real estate by installing ancillary facilities, such as telegraph, etc., and by providing them to the general public, the Plaintiff is obligated to return the acquisition tax from the rent.

B. Determination

The State or local governments, even if the act of constructing a road by the Road Act, etc. does not exist, shall be deemed to have been under the actual control of the State or local governments, and shall be deemed to have possessed the road as the subject of control (see Supreme Court Decision 91Da21206 delivered on September 24, 199, etc.). The first real estate in this case is used for the general traffic of the public and shall not be disputed between the parties, so it shall be deemed that it can be recognized as the above possession as the subject of control, not for 0 0 - 0 0 0 - 0 0 0 0 - 0 0 0 0 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 - 1 0 0 - 1 - 3 0 0 - 0 - 0 - 0 - 0 - 0 0 - - 1 -

2. Determination as to the claim against the defendant Suwon-si

A. Return of unjust enrichment

(1) Each real estate listed in the list of annexed real estate 2 (hereinafter referred to as the "second real estate of this case") is owned by the plaintiff, and it was used as a road prior to this time, and the land category was changed to a road at the latest in 1962, and the fact that the real estate is provided for the traffic of general public and vehicles as a roadway until now can be acknowledged by comprehensively considering the purport of the entire pleadings or video of the evidence No. 4-9 (including some number) within the above party, or the purport of the entire pleadings. Thus, the defendant Suwon-si is obliged to occupy the second real estate of this case as a road management authority, barring any special circumstance, to return unjust enrichment from the possession and use of the above real estate to the plaintiff.

(2) As to this, Defendant Suwon-si alleged that the Plaintiff could not incur any loss to the Plaintiff due to Defendant Suwon-si possession, since it renounced the exclusive right to use and benefit from the instant land No. 2, and thus, Defendant Suwon-si’s possession could not cause any loss to the Plaintiff. Thus, in a case where a certain private land is naturally occurring from the previous land to the new road or is actually used as a road intended for public use, the owner of the relevant land provided the land as a road with a right to free access to the neighboring residents or the general public, or in a case where it is interpreted that it would give up the exclusive right to use and benefit from the said land, the circumstance and scale of the sale of the remaining land by installments, the location and nature of the land to be used as the road, surrounding the surrounding land, etc., and the Plaintiff’s land category to the extent that it actually contributed to the effective use and benefit of the remaining land, the Plaintiff’s assertion that the land category was modified to the extent of its use and benefit from the road to the extent of its use and benefit.

The defendant Suwon-si asserts that the above real estate was acquired by prescription because it had been jointly and openly occupied as the owner's will for not less than 20 years. Thus, if the local government or the State, under the Local Finance Act, or the State Property Act, such as the payment of its own shares or contributions, etc., or without a specific title, such as the owner's approval for the use of the land, was incorporated into a road site without a specific title, it should be deemed that the presumption of the autonomous possession was broken (Supreme Court Decision 2000Da64472 Decided March 27, 201). In the case of this case, there is no evidence to deem that the defendant had acquired a legitimate title to possess the above real estate, such as following the procedure for acquiring the property for public use at the time of the commencement of possession. Thus, the presumption of the autonomous possession of the above defendant was broken, and the above defendant's assertion also has no merit.

B. Scope of return of unjust enrichment

In ordinary cases, the amount of profit arising from the possession and use of real estate is equivalent to 0. 2. 8: (1) the amount of the real estate of this case is 12, 072; (2) the annual amount of 0. 0 to 10. 7. 6: 00 per annum from 0. 20 to 10. 7. 8; (3) the amount of the real estate of this case is 0. 6:0 per annum from 0. 10 to 10. 8; and (4) the Plaintiff is 12, 756; 00 won per annum from 0. 6. 10 to 10. 7. 8; and (5) the amount of the real estate of this case is 0 to 10. 6. 7. 10, 2006 to 20. 7. 10

3. Conclusion

If so, the plaintiff's claim against Suwon-si is justified, and one claim against the defendant in the time of his name is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-soo