The judgment below is reversed, and the case is remanded to the Gwangju District Court.

The grounds of appeal are examined.

1. The basic price of land in order to calculate the amount of unjust enrichment equivalent to the rent for the land occupied and used by the State or a local government as a road, shall, in cases where the State or a local government, by constructing a road under the Road Act, etc. with respect to the land which is actually common use by the general public for the traffic from the previous time to the general public, possess the form of a road as a road or performing construction works actually necessary for the traffic of the general public, and where the State or a local government, as a de facto controlling body, occupies the road, it shall appraise the land as limited to the road, i.e., the current status; and in cases where the State or the local government, only has occupied the land which is actually not actually common use for the general traffic

(2) On April 12, 2002, the lower court determined that the amount of unjust enrichment for occupying and using the instant land ought to be calculated on the basis of “site”, inasmuch as there is no evidence to recognize that the instant land was actually officially used for the traffic of the general public prior to the change of land category from the site to the road.

3. However, the lower court’s determination is difficult to accept for the following reasons.

In light of the aforementioned legal principles and records, in order to calculate the amount of unjust enrichment incurred by the Defendant by occupying and using the instant land as a road, first of all, whether the time when the Defendant actually commenced possession of the instant land was set, and then whether the instant land was actually officially used for the general public’s traffic at the time of the commencement of possession, and whether the actual state of use thereof remains, should be determined according to the state in which the instant land is restricted as a road.