Where it is deemed unnecessary to take into account development gains;

In a case where a site adjacent to the original road is included in the road in urban planning without obtaining a legitimate title, the so-called development gains, which is the market price of land increased due to the road opening, need not be considered in calculating unjust enrichment.

Article 748 of the Civil Act

Plaintiff

Seoul Metropolitan Government

Seoul Central District Court (75 Gohap4453) in the first instance trial

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant shall pay to the plaintiff the amount of KRW 2,051,061 as well as the amount at the rate of five percent per annum from April 2, 1976 to the full payment day. The costs of the lawsuit shall be borne by the defendant and a declaration of provisional execution.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. In full view of the entries in Gap evidence 1-2 (Certified Copy of each land register), 1, 2-2 (Certified Copy of each land cadastre), 3-2, 3-2, 4-4 (Evidence of Confirmation), 4-1, 6-1 (Evidence) of the same evidence, and the whole purport of the field inspection conducted by the court below as a result of the on-site inspection conducted by the court below, the low-dong 1 in Seoul and 13-3 Hobbe, 13-3, such as (number 1 omitted), 8-3, 13-3, 13-3, 13-2, and 13-3, 1968 are owned by the plaintiff, and the representative of the defendant is from around February 9, 1968 to around 8-8, 198-3, 3-2, 8-2, 3-2, and 13-3, 13-3, 13-3, 3-1, 3.

2. Even if the defendant opened and occupied a road on the above site, the above site was constructed pursuant to Article 2 subparagraph 1, Article 4, Article 7 of the former Urban Planning Act, which was enforced at the time of incorporation into a road, and Article 2 subparagraph 1, Article 4, Article 7 of the former Urban Planning Act, Article 17 of the former Urban Planning Act, and the Minister of Construction and Transportation had a legal title to the possession and use of the above site. Thus, the defendant asserted that the claim for restitution of unjust enrichment is groundless. Thus, there is no evidence to prove that the defendant conducted a lawful urban planning project in accordance with the procedure under the Urban Planning Act and the Enforcement Decree thereof according to the Urban Planning Act under Article 177 of the above Construction Part No. 177 of the former Urban Planning Act, and there is no evidence to prove that the above construction part only planned urban planning under Article 177 of the above Construction Part No. 4-1 and the purport of argument before the above construction part's acquisition of the above urban planning project has not yet been implemented and the above construction part's claim is groundless.

Therefore, the defendant, without legal title, possesses 16th 3 Hobbes, the aggregate of the above site owned by the plaintiff as a road, and gain profits, and the plaintiff suffered losses, so the defendant is obligated to return such profits to the plaintiff.

3. As to the benefits that the defendant should return to the plaintiff, the profits that the defendant gains by occupying 16th 3 Hobbbes in the above site owned by the plaintiff is the amount equivalent to the above site rent for the period of ordinary possession.

However, the defendant's use of 16th 3 Hobbe, the above site as a road site, and thus, the amount of damages for the rent paid by the plaintiff should be calculated based on the market price assessed according to the situation before the above site was opened and opened to a road. Since the above site is opened and used to a road, it is argued that it is improper to calculate the amount of damages for the rent party based on the market price including the so-called development gains at the market price of the increased land. Therefore, considering the legal fiction of evidence No. 6-2 (Appraisal Report) without dispute over the establishment, the field inspection results and the whole purport of the argument by the court below, the above site is originally included in the road adjacent to the above Sung Hospital and the 3.1st Ga, and since it is recognized that the above site was incorporated into the road under urban planning due to the expansion of the road pursuant to subparagraph 177 of the above construction announcement, the above defendant's assertion that the above development gains by the defendant is groundless.

Therefore, according to the results of appraisal by the non-party appraiser of the court below, the monthly rent for this site from November 1, 1974 to December 31 of the same year can be recognized as 6,66 won from January 1, 1975 to December 31 of the same year, 7,500 won from January 1, 1975 to December 31 of the same year, and 7,500 won from January 1, 1976 to March 8 of the same year. Unless special circumstances exist, the monthly rent for each site after March 8, 1976 to 7,50 won for the same day cannot be deemed as 7,50 won for the above monthly rent for the same site from March 8, 1976 to 3,00 won, x 16,000 won for the above site used by the defendant x 16,000 won x 16,000 won x 16,016

4. Accordingly, the defendant's representative is obligated to pay to the plaintiff damages for delay at a rate of 5% per annum from April 2, 1976 to the full payment date, which is obvious in the record that the application for extension of the plaintiff's claim is delivered to the defendant, as to the use of the building site as the road by the market for the purpose of occupying the building site as the road. Thus, the plaintiff's claim for transfer is justified and the defendant's appeal is dismissed, and the defendant's appeal is dismissed, and it is so decided as per Disposition by the application of Articles 95 and 89 of the Civil Procedure Act with respect to the burden of appeal.

Judges Kim Jin-jin (Presiding Judge)