In cases where the State or a local government virtually occupies a road as a controlling body, the basic price and expected interest rate for calculating the amount of unjust enrichment on such land.

The amount of unjust enrichment to be returned where the State or a local government occupies private land without title as a road shall be the amount equivalent to the rent, which shall be calculated by multiplying the basic price of the land concerned by the rental fee rate. The rental fee rate to calculate the rental fee of the land shall be determined in consideration of the rate of national and public bonds, the long-term loan interest rate of banks, the interest rate of general public, the rate of normal transaction profits, the rate of rental fee under the State Property Act and the Local Finance Act, etc.

Article 741 of the Civil Act; Article 38 of the State Property Act; Article 26 of the Enforcement Decree of the State Property Act; Article 83 of the Local Finance Act; Article 92 of the Enforcement Decree of the Local Finance Act; Article 25 of the Road Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Kang Young-ok et al. (Attorneys Kim Tae-tae, Counsel for the plaintiff-appellant)

Seo-gu, Gwangju Metropolitan City (Attorney Gyeong-gu, Counsel for defendant-appellant)

Gwangju High Court Decision 96Na1831 delivered on November 15, 1996

All appeals are dismissed. The costs of appeal are assessed against each party.

1. We examine the defendant's grounds of appeal.

Based on its findings, the court below rejected the defendant's defense as to this point on the ground that the part above, which was scheduled to be constructed as a road under the related Acts and subordinate statutes due to the public notice of the land registration on the urban planning of Jeonnam-do, is practically limited to use and profit-making such as construction of a new building, etc., and the part which was planned to be constructed as a road inevitably due to the means to dispose of the remaining land, was divided into each land of this case and sold as a site by dividing the remaining land. Since the purchaser of the divided land thereafter, who constructed a house in accordance with the urban planning and constructed a house in accordance with the urban planning, was to use the road part of each land of this case as a road, the above disease period cannot be deemed to waive the right to use and profit-making of each of the land of this case and granted the right

In light of relevant evidence and records, the above recognition and judgment of the court below are all acceptable (see Supreme Court Decision 91Da22032 delivered on February 14, 1992, Supreme Court Decision 93Da30907 delivered on May 13, 1994, etc.), and there is no error of law by misunderstanding of facts or misunderstanding of legal principles as to unjust enrichment, such as theory of lawsuit, and there is no ground for argument.

2. We examine the plaintiffs' grounds of appeal.

Where the State or a local government occupies a private land without title as a road, the amount of unjust enrichment to be returned shall be calculated by multiplying the basic price of the land concerned by the rental fee rate. The rental fee rate to calculate the rental fee of the land shall be determined in consideration of the interest rate on national and public bonds, long-term loan rates of banks, general public interest rate, normal real estate transaction profit rate, loan rate prescribed by the State Property Act and the Local Finance Act (see, e.g., Supreme Court Decisions 93Da62515, Jun. 14, 1994; 96Da6479, May 28, 1996).

In light of the above judgment criteria and records, the court below is just in calculating the amount calculated by considering the rental fee rate of 3% as the appraised price of the appraiser of the first instance court assessed in consideration of all the locational conditions, such as the location, surrounding environment, and transportation conditions of each land of this case. The judgment below did not err in the misapprehension of legal principles as to the calculation of the rental fee rate of land incorporated on the road, such as the theory of lawsuit, or in the incomplete hearing, or in the incomplete hearing, or in the incomplete reasoning, etc., and the decision of the Supreme Court with the theory of lawsuit is different from the case of this case, and thus, the above judgment of the court below is not necessarily contrary

3. Therefore, all appeals by the plaintiffs and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)