[1] The form that the State or a local government occupies a road

[2] Whether a road actually occupied by the Special Metropolitan City is naturally transferred from a Special Metropolitan City to an autonomous Gu from the date of enforcement of the Local Autonomy Act (affirmative)

[3] Where private land is actually used as a road, the standard for determining whether to grant land owners the right to free passage or to waive the right to use and benefit from the land

[4] The case holding that the land owner may waive the right to use and benefit from the land incorporated into the road or grant the right to free passage, in case where the land owner approved the use of the existing road as a national housing site for employees on condition that the implementer entrusted with the construction and sale of national housing for employees by the land owner constructs a new road and provided it to the passage of national housing for employees after the implementer approved the use of the land

[1] The possession of a road by the State or a local government can be divided into possession as a road management authority and possession as a de facto controlling entity. As such, first of all, possession as a road management authority may be recognized from the time of the public announcement of recognition of routes under the Road Act, a road zone is determined, or a road is constructed by the implementation of an urban planning project under the Urban Planning Act. In addition, even if the construction of a road is not conducted by the State or a local government under the Road Act, possession as a road can be recognized as a de facto controlling entity, even after the construction of a road is performed by the State or a local government on the private land that is not common use for the general public traffic, and then the land is owned as a road by the State or a local government on the land

[2] In a case where a local government occupies a road as a person who actually controls a road, the provisions of the Municipal Ordinance of the Special Metropolitan City or Metropolitan City concerning the maintenance and management of a road, such as division of duties of a Special Metropolitan City or Metropolitan City concerning the width of a road, do not follow the provisions of Article 5 (1) of the Local Autonomy Act. However, until April 30, 198, which is before the Local Autonomy Act is enforced, the Special Metropolitan City or Metropolitan City shall be the person who occupies the road. However, from May 1, 198, the person who occupies the road shall be deemed to have been automatically transferred from the Special Metropolitan

[3] In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants the right to free traffic to neighboring residents or the general public by providing the land as a road or gives up exclusive and exclusive rights to use and profit from the land, it shall be determined by comprehensively taking into account all the circumstances such as the circumstance and period he owns the land, the situation and scale of the sale in installments of the remaining land, the location and nature of the land to be used as the road, the relation with the neighboring land, the surrounding environment, etc., as well as the degree of contribution to the land for the effective use and profit of the remaining land partitioned and sold.

[4] The case holding that the land owner may waive the right to use and benefit from the land incorporated into the road, or grant the right to free use, in case where the land owner approved the use of the existing road as a national housing site for employees on condition that the implementer entrusted with the construction and sale of national housing for employees by the land owner constructs a new road and provided it to the passage of national housing for employees after the implementer approved the use of the land

[1] Article 192 of the Civil Act / [2] Article 192 of the Civil Act, Article 5 (1) of the Local Autonomy Act, Article 9 of the Enforcement Decree of the Local Autonomy Act / [3] Article 741 of the Civil Act / [4] Article 741 of

[1] Supreme Court Decision 91Da21206 delivered on September 24, 1991 (Gong1991, 2607), Supreme Court Decision 91Da35649 delivered on October 27, 1992 (Gong1992, 3242), Supreme Court Decision 92Da3415 delivered on February 23, 1993 (Gong1993, 1063), Supreme Court Decision 92Da19804 delivered on August 24, 1993 (Gong1993Ha, 25729), Supreme Court Decision 2001Da728 delivered on April 27, 201 (Gong1979, 297, 297Da19689 delivered on June 29, 205) / [2] Supreme Court Decision 97Da19689 delivered on June 29, 1965

Korea Electric Power Corporation (Law Firm Tae, Attorneys Kim Sung-soo et al., Counsel for the plaintiff-appellant)

[Judgment of the court below]

Seoul High Court Decision 2004Na23020 Delivered on March 16, 2005

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. The judgment of the court below

원심은, 그 채용 증거들을 종합하여, 경성전기 주식회사는 1960. 8. 29. 대한민국으로부터 서울 마포구 용강동 494-1 전 3,797평, 용강동 494-3 전 625평에 대한 소유권을 이전받았는데, 원고는 1961. 6. 30. 경성전기 주식회사를 합병한 사실, 원고는 1962년 그 소유의 용강동 494-1 전 3,797평 외 4필지에 총면적 12,536.3평 규모의 사원용 국민주택 154세대를 건립하기 위하여 대한주택공사에 위 사업과 관련된 건축 및 분양업무를 위임하고, 대한주택공사는 1962. 7. 31. 건설부장관으로부터 국민주택사업계획을 승인받은 사실, 대한주택공사는 당시 도로로 사용되고 있던 토지(이하 '기존 도로'라 한다)를 국민주택부지로 사용하기 위하여 서울특별시장에게 도시계획법상 도로로 예정되어 있었으나 도로로 개설되고 있지 않던 용강동 494-3 전 625평 및 용강동 494-1 전 3,797평 중 일부 토지에 도로를 축조해 달라고 신청하였으며, 서울특별시장은 1962. 8. 용강동 494-3 전 625평 및 용강동 494-1 전 3,797평 중 일부에 새로 도로를 개설한다면 기존 도로 부분을 건축부지로 사용할 수 있다고 회신한 사실, 대한주택공사는 1962. 9.경 원고의 토지사용승낙서를 첨부하여 서울특별시장에게 국민주택 건축허가신청을 하였고, 서울특별시장은 1962. 10. 12. '현재 도로상의 허가된 건물 신축은 계획도로 공사완료 후 착수함'이라는 조건을 부가하여 건축을 허가한 사실, 용강동 494-1 전 3,797평은 1962. 11. 16. 용강동 494-1 전 3,030평, 494-5 전 2평, 494-6 전 765평으로 분할되었고, 1962. 12. 4. 용강동 494-3 전 625평 및 용강동 494-6 전 765평의 지목이 도로로 각 변경된 사실(이하 용강동 494-3 도로 625평과 용강동 494-6 도로 765평을 합하여 '이 사건 토지'라 한다), 원고는 1962. 12. 21. 국민주택부지로 사용될 예정이던 용강동 494-1 전 3,030평 중 2,947평을 비롯하여 인근의 원고 소유 토지를 대한주택공사에 매도하였으며, 원고는 도로가 건설될 예정이었던 토지 중 용강동 494-6 도로 765평에 대하여는 대한주택공사에게 1962. 11. 22.자로 범위 2,970평, 존속기간은 계약일로부터 20년으로 하는 지상권을 설정하여 준 사실, 대한주택공사는 도시계획에 따라 이 사건 토지에 폭 25m의 왕복 4차선 도로(이하 '이 사건 도로'라 한다)를 개설하였는데, 이 사건 도로는 국민주택 단지의 중앙을 가로지르도록 되어 있는 사실, 그 후 대한주택공사는 국민주택 154세대를 건설하고, 1963. 1. 4. 피고로부터 사용허가를 얻어 이를 분양한 사실, 피고는 그 후 이 사건 도로에 상하수관을 설치하고, 1994년경 아스팔트 덧씌우기 공사를 시행하는 등 이 사건 도로를 유지 및 관리하고 있는 사실, 원고는 위 지상권의 설정기간이 만료될 무렵인 1979년경부터 서울특별시 마포구에 이 사건 토지에 대한 보상을 요청한 사실 등 판시와 같은 사실을 인정한 다음, 그 인정 사실에 의하면, 피고는 원고가 부당이득의 반환을 구하는 시점인 1997. 2. 23. 이전부터 아무런 권원 없이 이 사건 토지에 상하수관 매설공사 및 아스팔트 포장공사를 하여 이를 일반 공중의 통행에 사용하는 등 도로로 점유·사용함으로써 그 차임 상당의 이익을 얻고, 이로 인하여 이 사건 각 토지의 소유자인 원고에게 동액 상당의 손해를 가하였다고 할 것이므로, 특별한 사정이 없는 한 원고에게 이 사건 토지에 대한 피고의 점유개시일 이후로서 원고가 구하는 1997. 2. 23.부터 현재까지 점유·사용으로 인한 부당이득을 반환할 의무가 있다고 판단하였다.

2. As to the defendant's possession of road

The form of possession of a road by the State or a local government can be divided into possession and possession as a de facto controlling body of the road management authority. First of all, the possession of a private land as a road management authority may be recognized from the time of the public announcement of the recognition of routes under the Road Act, a road zone, or the implementation of an urban planning project under the Urban Planning Act. In addition, even if a road is not constructed under the Road Act, the construction of a road actually required on a private land that is not officially used for the traffic of the general public by the State or a local government, and then the land is in the form of a road, and then is for the public use of the traffic of the general public, it shall be deemed that the road is actually under the de facto control of the State or a local government (see Supreme Court Decisions 92Da19804, Aug. 24, 1993; 2001Da728, Apr. 27, 2001, etc.).

In addition, where a local government occupies a road as a person who actually controls a road, the provisions of the Special Metropolitan City or Metropolitan City Ordinance concerning the maintenance and management of a road, such as division of duties of a Special Metropolitan City or Metropolitan City Ordinance concerning the width of a road, shall not be considered to have been followed. The Special Metropolitan City or Metropolitan City Ordinance until April 30, 198, prior to the enforcement of the Local Autonomy Act pursuant to Article 5(1) of the Local Autonomy Act. However, from May 1, 198, when the Local Autonomy Act was enacted, the person who occupies the road shall be deemed to have been naturally transferred from the Special Metropolitan City or Metropolitan City to an autonomous Gu (see Supreme Court Decision 96Da14227, Jul. 22, 197).

However, according to the records, as to the land of this case, it is unclear whether the defendant occupies the land of this case as a road management authority or is in possession of it as a de facto controller due to the implementation of an urban planning project under the Urban Planning Act, the public announcement of road route approval under the Road Act, and the determination of road zones, and therefore, it is unclear whether the defendant occupies the land of this case as a road management authority. If the defendant occupies it as a de facto controller, it should be examined as to this point since the implementation of the Local Autonomy Act from May 1, 198 to the autonomous Gu under the jurisdiction. Thus, it is necessary to examine this point. However, the court below's determination of the defendant as the occupying entity of the road of this case

3. As to the waiver of exclusive and exclusive rights to use

In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or gives a waiver of exclusive and exclusive rights to use the land, the circumstances leading up to the ownership of the land or the holding period, the details and scale of the sale of the remaining land in installments, the location and nature of the land to be used as the road, the relation with the neighboring land, the surrounding environment, etc., and the degree of contribution to the land concerned for the effective use and profit of the remaining land partitioned and sold should be comprehensively examined (see Supreme Court Decision 98Da59262, May 12, 200, etc.).

The court below rejected the defendant's assertion that the Korea National Housing Corporation, the implementer of the national housing construction project, provided a private road to each of the instant lands for the passage of some of the national housing construction projects without compensation, and the plaintiff had it used each of the instant lands as a road free of charge, such as with the knowledge of such fact and the issuance of a written consent to the use of each of the instant lands for its own national housing construction projects. As such, the plaintiff waived exclusive and exclusive use rights to each of the instant lands, the court below rejected the defendant's assertion that the land of this case was designated as a site for 25 meters wide in urban planning before the Korea National Housing Corporation was constructed as a road, and that the plaintiff requested the Seoul National Housing Corporation to grant the approval of the use of the existing road as a national housing site for national housing to the head of the Seoul National Housing Corporation for national housing construction, on condition that the new road was constructed as a national housing site at the expense of the Korea National Housing Corporation, and on condition that the new road was constructed as a site for national housing construction permission for 920 meters from the expiration of the term of national housing construction permit.

However, we cannot accept the above judgment of the court below for the following reasons.

As determined by the court below, when the Korea National Housing Corporation delegated the construction and sale of national housing for employees by the plaintiff to the Seoul Special Metropolitan City Mayor for the use of the existing roads as national housing site for employees, the Seoul Special Metropolitan City Mayor approved the use of the existing roads as national housing site for employees on the land of this case under the condition that the new roads are constructed at the expense of the Korea National Housing Corporation. Accordingly, the Korea National Housing Corporation applied for a construction permit to the Seoul Special Metropolitan City Mayor for the construction of national housing, along with the plaintiff's written consent to use the land of this case, the Seoul Special Metropolitan City Mayor made a construction permit on the condition that the new construction of the building permitted as of the present roads should be commenced after the completion of the construction of the road of this case. Accordingly, if the Seoul Special Metropolitan City Mayor directly executes the road construction for the land of this case and the Korea National Housing Corporation constructed the roads by directly implementing the road construction for the land of this case for employees, it is reasonable to view that the plaintiff as a

In addition, as determined by the court below, if the plaintiff acquired the land of this case which was already designated as a road site under the Urban Planning Act and delegated it to the Korea National Housing Corporation, and the plaintiff constructed a national housing for employees of the plaintiff on the land of this case after the completion of national housing for employees, and the land of this case was provided for the passage of the national housing for employees of this case, it can be deemed that the plaintiff renounced the right to use and profit from the land of this case incorporated into the road or granted the right to use and profit from the land of this case without compensation to the residents, even in light of the circumstance and holding period

If the Plaintiff renounced the right to use and benefit from the instant land or granted the right to use and benefit from the instant land to the residents free of charge, the Plaintiff cannot use and benefit from the instant land exclusively and exclusively, and therefore, it cannot be said that the Plaintiff’s possession causes any damage to the Plaintiff.

Nevertheless, the court below held that the plaintiff could not be deemed to have renounced the right to use and benefit from the land of this case or given the residents the right to free access to the land of this case. The court below erred by misapprehending the legal principles on the waiver of the right to use and benefit, and such illegality has affected the judgment.

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)