[1] Qualifications for the defendant in a performance suit

[2] Where private land is actually used as a general traffic, the standard for determining whether the landowner renounces his/her right to use the land or approves the use of the road

[3] In a case where the state or a local government executes construction works in fact necessary for a naturally occurring road and uses them for the passage of the public, whether the state or the local government can approve the possession of the road

[4] The method of calculating the amount of unjust enrichment equivalent to the rent for the land in a case where the State or a local government occupied the private land which was actually used as a road for the passage of the general public

[1] In a lawsuit for performance, the standing to be the defendant is the plaintiff's own claim and the judgment can be absorptiond into the judgment on the propriety of the claim, so the person alleged as the obligor is the legitimate defendant.

[2] In a case where a certain private land is actually used as a road naturally occurring from the past to the general public, in interpreting the intent that the landowner renounced the right to use and benefit from the land, or that the landowner consented to the use of the road, the decision must be made carefully by taking into account all the circumstances, such as the developments and period of the purchase of the relevant land, the developments and scale of the sale in installments, the location, nature, surrounding environment, etc. of the relevant land used as a

[3] In a case where a naturally formed road was not established by the Road Act, but is actually required by the State or a local government for construction works and continues to be used for the passage of the general public, such a road shall be deemed to be under the actual control of the State or a local government, and its possession may be recognized as the subject of control.

[4] In a case where the State or a local government has established a road under the Road Act, etc. for the land which was actually being used as a road for the general public, and has occupied or has been in possession of a road as a de facto controller, the basic price for calculating the amount of unjust enrichment equivalent to the rent for the land shall be assessed according to the status limited to the road, i.e., the current status of the road. In such a case, unless the land is not a private road under the Private Road Act or a private road under Article 6-2 (2) 1 of the Enforcement Decree of the Act on Special Cases concerning the Compensation for Public Loss, unless the land is a "private road under the Private Road Act or a de facto private road under the Article 6-2 (2) 1 of the Enforcement Decree of the Act on Special Cases concerning the Compensation for Public Loss, it shall not be calculated on the basis of the estimated transaction price within the limit of 1/5 of the normal transaction price of the neighboring land, and the " de facto private road" under Article 6-2 (1) of the Enforcement Rule of the same Act means a road for the convenience of the land.

[1] Article 48 of the Civil Procedure Act / [2] Article 741 of the Civil Act / [3] Articles 192 (1) and 245 (1) of the Civil Act / [4] Article 741 of the Civil Act, Article 6-2 (2) 1 of the Enforcement Rule of the Public Compensation for Loss

[1] Supreme Court Decision 88Da26499 delivered on July 25, 1989 (Gong1989, 1293) / [2] Supreme Court Decision 95Da36268 delivered on November 21, 1995 (Gong1996Sang, 48), Supreme Court Decision 95Da3946 delivered on November 24, 1995 (Gong1996Sang, 150) / [2] Supreme Court Decision 92Da11930 delivered on April 13, 1993 (Gong1993, 1372), Supreme Court Decision 94Da1658 delivered on October 25, 1994 (Gong194, 1994Ha, 3086) / [39Da39499 delivered on April 13, 1993]

Plaintiff (Attorney Lee Jae-hwan, Counsel for plaintiff-appellant)

Seoul Special Metropolitan City and one other (Law Firm Dong-dong Law Office et al., Counsel for the defendant-appellant)

Seoul High Court Decision 94Na16962 delivered on March 22, 1995

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Defendants are dismissed. The costs of appeal dismissed are assessed against the Defendants.

1. We examine the Defendants’ attorney’s grounds of appeal.

(1) As to Defendant Seoul Metropolitan Government’s ground of appeal No. 1

In a performance suit, the standing to be the defendant in a performance suit is nominal by the plaintiff's own claim, and the decision is absorbed into the judgment on the propriety of the claim, so the person alleged as the performance obligor is a legitimate defendant (Article 88∑ 26499 delivered on July 25, 1989), and the judgment of the court below to the same purport is just, and it is evident that the argument has no reason.

(2) Ground of appeal No. 2 by Defendant Seoul Government and ground of appeal by Defendant Seongdong-gu

In a case where a certain private land is naturally used as a road from the previous time to the general public, and actually used as a road, the land owner has renounced his right to use and benefit from the land or has given his consent to use and benefit from the road shall be carefully determined by taking into account all the circumstances, such as the developments and period for purchasing the land in question, the developments and scale of selling the remaining land in installments, the location and nature of the land used as a passage route, and surrounding environment (see Supreme Court Decision 94Da16588 delivered on October 25, 1994). In light of the records, the recognition of the facts by the court below on the developments leading up to which the land in question was offered for passage of neighboring residents is just, and if the facts exist, it cannot be deemed that the plaintiff renounced his right to use and benefit from the land in question and provided it as a road on its own in light of the above legal principles. Therefore, the judgment of the court below to the same purport is justifiable,

In addition, even if the construction of a road is not done by the Road Act, it is a case where the State or a local government executes the construction of a road and continues to be in the form of a road, and the construction of a road is in fact required by the State or a local government, and continues to be used for the traffic of the general public, such road shall be deemed to be under the actual control of the State or a local government, and possession may be recognized as the de facto controlling entity (see Supreme Court Decision 92Da19804 delivered on August 24, 1993). The court below held that the court below erred by misapprehending the legal principles and evidence as seen above, since the maintenance of the road around the land of this case, the land of this case, which the defendant Seoul Metropolitan Government was actually used for the traffic of the general public, was included in the surrounding road of this case, and completed the construction of the asphalt Packing Packing Packaging and the construction of a road boundary wall installed by the general public. After the commencement of the construction, the defendant Seoul Metropolitan Government provided the land of this case to the general public as well after the commencement of the construction.

On the other hand, the basic price of the land for calculating the unjust enrichment of the land incorporated into the road shall be appraised according to the actual use situation at the time of incorporation into the road. As legally determined by the court below, if the Defendant Seoul Metropolitan Government had already accumulated waste around the land of this case and the soil from the nearby construction site in a level equal to that of the surrounding road at the time of the commencement of occupation into the road of this case, the method of appraisal of this part of the first instance which was appraised on the basis of the "equitable state" is just, and there is no ground for appeal by the Defendant Seongdongdong-gu disputing this point.

(3) As to Defendant Seoul Metropolitan Government’s ground of appeal No. 3

The argument that the right to claim restitution of unjust enrichment due to the possession of the land in this case prior to February 23, 1988 is extinguished by prescription is a new argument that does not have been asserted until the closing of the arguments at the trial court, and thus, it cannot be a legitimate ground for appeal. Therefore, it is evident that the argument has

2. We examine the Plaintiff’s attorney’s grounds of appeal.

In a case where the State or a local government has constructed a road under the Road Act, etc. for the land which was actually used as a road for the general public, and occupies or occupies a road as a de facto controlling entity after having the form of a road, the basic price for calculating the amount of unjust enrichment equivalent to the rent for the land should be appraised according to the status limited to the road (see Supreme Court Decision 94Da32085 delivered on September 30, 1994). In such a case, unless the land is "private road under the Private Road Act or a public private road under Article 6-2 (2) 1 of the Enforcement Rule of the Act on Special Cases Concerning the Acquisition of Land for Public Use and Compensation of Residents", the basic price for calculating the rent for the land shall not be calculated within 1/5 of the normal transaction price of neighboring land by seeking a presumption within the limit of 1/5 of the normal transaction price of neighboring land, and the owner of the land shall not be deemed to have been granted an amount equivalent to the rent for a certain period of time (see Supreme Court Decision 94Da166509 delivered on April 25, 19).

As legally determined by the court below, the land of this case, regardless of the plaintiff's intention, has been actually used as a passage of neighboring residents and has been occupied and managed by the defendant Seoul Metropolitan Government as a de facto controlling body by building the road, it is clear that the land of this case does not correspond to not only private roads under the Private Road Act, but also the " de facto private roads" under Article 6-2 (2) 1 of the Enforcement Rule of the Act on Special Cases concerning the Management of Private Road. Therefore, the basic price for calculating the amount of unjust enrichment equivalent to the rent of this case is limited to roads, i.e., the current status of the road, and it should be appraised according to the current status of the road,

However, according to the records, the appraiser of the first instance court deemed the land of this case as the "private road in fact" under Article 6-2 (2) 1 of the Enforcement Rule of the Act on Special Cases, and determined the amount equivalent to 20% of the neighboring land price as the basic price of the land of this case, and calculated the rent by multiplying the expected interest rate. Thus, the appraisal result is clear that the basic price is calculated by applying the private road evaluation rule of this case to the land of this case which is not the actual private road, and it is erroneous that it is erroneous. Nevertheless, the court below's calculation of unjust enrichment of the rent party of this case by adopting the appraisal result as mentioned above is erroneous by misapprehending the scope of the application of the above special law and the legal principles as to the de facto private road under Article 6-2 of the Enforcement Rule of the above Act. Thus, there is a ground for

3. Therefore, by accepting the Plaintiff’s appeal, the part against the Plaintiff in the judgment of the court below against the Plaintiff is reversed, and that part of the case is remanded to the court below. All appeals by the Defendants are dismissed. The costs of appeal by the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Jeong Jong-ho (Presiding Justice)