(a) The gender of unjust enrichment in cases where he/she packages the road in the form of a road without the consent of the relevant land owner;

(b)a condition for a judgment ordering future performance.

A. If the Seoul Special Metropolitan City provides the above owner's land for the passage of vehicles including the residents and route buses by executing road packaging works without the landowner's approval for donation or use, the Seoul Special Metropolitan City occupies and manages the land as a road site without any legal ground in relation to the above owner's land, and thereby obtains unjust enrichment equivalent to the rent.

B. For a judgment ordering future performance, not only the time the performance period of the obligation arrives in the future, but also the time the performance of the obligation remains until that time shall be determined at the time of the closing of pleadings, and if such a period of liability is uncertain and it is not possible to make a final determination at the time of the closing of pleadings, a judgment ordering future performance cannot be issued

A. Article 741 of the Civil Act, Article 229 of the Civil Procedure Act

A. Supreme Court Decision 81Da96 delivered on October 24, 1981

[Judgment of the court below]

Attorney Kim Jong-young, Counsel for the defendant-appellant

Seoul High Court Decision 85Na3801 delivered on August 20, 1986

Of the part against the Defendant in the lower judgment, the part ordering the future performance from July 11, 1986 shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal dismissed shall be assessed against the defendant.

As to the Defendant’s Attorney’s ground of appeal:

1. According to the reasoning of the judgment of the court of first instance added by the court below, the court below acknowledged the fact that the plaintiff purchased 239 square meters from the former owner and completed the registration of ownership transfer on August 24, 1978 regarding the 239 square meters including the land in this case, but the defendant constructed a road at a level of 6 meters wide from February 10, 1979 by implementing road packaging construction on the surrounding land including the 166 square meters of the land in this case, and even before that, it was used as a road for the passage, it was used as a road for the passage and the passage of neighboring residents and vehicles, and the fact that the bus was operated on the road in this case for the remaining one year after the completion of the above packing construction, and the defendant was given a contribution from the owner and was given a contribution, but the plaintiff did not comply with it.

In this case, based on the Supreme Court precedents, the defendant did not gain profit from the above land, or the plaintiff did not have the right to claim the return of unjust enrichment against the fee.

However, if the defendant offered the land of this case for the passage of vehicles, including residents and route buses without obtaining the consent of donation or use from the plaintiff, the defendant thereafter occupied and managed the land of this case as a road site without any legal ground in relation to the plaintiff (see Supreme Court Decision 81Da96, Oct. 24, 1981). In this case, even though the defendant was used as a road for the passage of residents before the construction of the road, it cannot be deemed that the plaintiff or the former owner used it as a road due to the location and environment of the land, not as a road by his own will, but as a natural passage due to the location and environment of the land. Accordingly, it cannot be deemed that the plaintiff or the former owner has renounced its use and profit since it is merely a situation in which the plaintiff did not use and profit from other forms.

The Supreme Court Decision, where the theory of theory is in progress, denies the occupation of the city because there is no way to implement the road construction project (Supreme Court Decision 70Da1288 delivered on August 31, 1970). The land owner only used it with other users without any work at the market price on the naturally occurring roads (Supreme Court Decision 75Da997 delivered on December 9, 1975) and denies possession and use of it (Supreme Court Decision 78Da2086 delivered on October 16, 197). The land owner bears part of the construction cost of the market price of the land provided as a road in the course of dividing the housing site and carries out packing construction, and it is not a proper precedent in this case. The argument is without merit.

2. If the Plaintiff had had a customary road on the land before the purchase of the instant land, and neighboring residents had passed through, the Nonparty, the former owner, accepted the use of the said land as a passage free of charge. The Plaintiff, upon being aware of this, succeeded to the duty to allow the use of the road by the former owner, cannot obtain the right to claim the return of unjust enrichment.

However, it is difficult to view that the owner of the land was providing the land as the road solely on the fact that neighboring residents are using it as the road. This is because other persons were neglected to use it as the road without permission, and it is different from the owner who clearly renounced the use and profit as the owner. We cannot accept the argument.

3. The lower court, citing the Plaintiff’s claim for restitution of unjust enrichment on an official fee, held that, from July 11, 1986 to June 10, 1990, the Plaintiff should return the amount at the rate of KRW 28,469 per month (as the reasons for the judgment, the amount shall be KRW 28,496) from July 11, 1986 to June 10, 1999.

In order to render a judgment ordering future performance, not only the time the performance period of the obligation arrives in the future, but also the continuous continuation of the cause of nonperformance by that time shall be determined at the time of the closing of pleadings, and if such a period of liability is uncertain and it is impossible to be determined at the time of the closing of pleadings, a judgment ordering future performance cannot be rendered.

In this case, it cannot be denied that the limit of the future period until 190, which ordered implementation, continues to exist until the time when the cause of nonperformance of obligation continues to exist.

Before that time, the Defendant may expropriate the instant land or use it by road closure, and the Plaintiff may not continue to own the said land. This is because, in the case of the order of compensation for damages from the rent to the time of the ruling, it is different from the order of future performance because it can be ordered to realize the fact that it is the name of the city, although the urban flag is uncertain at the time of the ruling, it is possible to expect the realization of the fact that the name of the city is the name of the vehicle. In this respect, the lower court erred by misapprehending the legal doctrine on future performance litigation. The arguments are with merit.

Therefore, the part of the judgment below against the defendant ordering future performance is reversed, and that part of the case is remanded to the court below. The defendant's remaining appeal is dismissed. The costs of the lawsuit are assessed against the losing party's assent. It is so decided as per Disposition by the assent of all participating judges

Justices Kim Jong-chul (Presiding Justice)