2015Da20223 Unlawful gains

person

A

Hanam-si

Seoul High Court Decision 2013Na2011612 Decided December 24, 2014

May 28, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. In a case where a private land is naturally occurring or is classified into a proposed road site and actually used as a road for the public traffic, 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 in interpreting that he/she waives exclusive and exclusive rights to use and benefit from the land, the circumstance or period he/she owns the land in question, the details and scale of the sale of the remaining land in installments, the location and nature of the land used as the road, relations with neighboring land, surrounding environment, etc., and the degree of contribution to the land in question for the effective use and benefit of the remaining land that has been partitioned and sold should be comprehensively examined (see, e.g., Supreme Court Decisions 88Da1697, Jul. 11, 1989; 2010Da47681, Nov. 25, 2010).

B. The court below determined that the plaintiff waived his exclusive right to use and benefit from the land of this case on July 21, 1988, 2000 square meters in the part of "Attachment 2." (hereinafter referred to as "the land of this case") among the land of this case 1,005 square meters in Yongnam-si, and rejected the plaintiff's assertion that the plaintiff did not purchase the land of this case 463 square meters in the land of this case on February 23, 198, 198, 3,68 square meters in C and E (hereinafter referred to as "the land before the division of this case") or the land of this case which was sold to the purchaser of this case on July 21, 198, and it was difficult for the plaintiff to recognize that the land of this case was sold to the purchaser of this case on the land of this case 200 square meters in the part of the land of this case, which was sold to the purchaser of this case on the land of this case.

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

① On March 24, 1978, the instant land was designated as a road scheduled site by the Gyeonggi-do public notice, and the Plaintiff, with the intention of dividing the instant housing site other than the instant road portion among the instant land before the instant partition from the beginning, purchased each of the instant land on February 23, 198, 363 square meters and E 2,220 square meters, and on March 29, 198, purchased each of the instant land with D 985 square meters on April 1, 198, and merged each of the instant land with the land before the instant partition.

On March 9, 1988, the Plaintiff surveyed the land before the partition into 25 lots, such as the “Divided Map” as indicated in the lower judgment, and sold all of the remaining housing sites (24 lots) of this case, except for 1,005, including the land on the road of this case serving as a passage among them, to a third party.

3. On April 27, 198, the buyers of each of the instant housing sites indicated the instant land as a road adjoining to each of the instant housing sites when submitting an application for each of the instant construction permission to the competent authorities. Among them, the buyers stated the width of each of the instant housing sites (i.e., “c., “c.,” “c.,” “c.,” “c.,” “c.,” “C.,” “C.,” “C.,” “C.,” “C.,” “C.,” and “C.,” “C.,” “C.,” and “C.,” “C.,” and “C.,” which are linked to each of the instant housing sites.

In order to apply for a building permit in the name of the land, a written consent to the land use was attached.

④ On July 21, 1988, the land before the instant partition was divided into 25 lots upon the Plaintiff’s application for subdivision, as indicated in the “Divided Map” attached to the lower court’s judgment. Each of the instant sites was completed in the name of each purchaser after August 21, 1988.

⑤ The land before the instant partition, including the instant land, was reclaimed by a sewerage management officer to discharge sewage from a building constructed on each of the instant housing sites under the ground, and on April 14, 1990, the instant land was packed as a concrete package before the Defendant occupied and managed the road by the Gyeonggi-do public notice, and was used as the passage of the owners of each of the instant housing sites and neighboring residents. In particular, among each of the instant housing sites of this case, the part on which the land was marked as a “original partition map” and Qand 99 square meters (the part on which the “original partition map” was marked as a “original partition map”) cannot be used as a meritorious service without going through the instant land.

④ The Plaintiff did not raise an objection against the Defendant or the owner of the instant housing site or demand the usage fee for the instant land with respect to the use of the instant land as a road for the general public’s traffic after selling each of the instant housing sites around 1988 and before filing the instant lawsuit.

(2) 이러한 사정들을 앞서 본 법리에 비추어 보면, 이 사건 토지의 폭이 약 8m에 이르고 이 사건 토지의 면적이 이 사건 분할 전 토지 면적의 약 15%에 달하는 등 원심이 그 판시와 같이 들고 있는 일부 사정들을 감안하더라도, 원고는 기왕에 도로 예정지로 지정된 부분이 이 사건 각 택지의 통행로 및 하수도관 매립 도로로 적합하기 떄문에 이 사건 각 택지를 제3자에게 매각하고 그 효용가치를 증대시키기 위하여 스스로 이 사건 토지를 도로로 제공하여 이 사건 토지에 대한 독점적이고 배타적인 사용수 익권을 포기하였다고 볼 가능성이 크다.

D. Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of the right to use and benefit, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning

2. Plaintiff’s ground of appeal

As seen earlier, the Plaintiff’s ground of appeal premised on the Defendant’s obligation to return unjust enrichment is without merit, as long as it cannot be acknowledged that the Defendant’s obligation to return unjust enrichment by waiver of exclusive and exclusive rights to use the instant land.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

A person shall be appointed.