2013Da18677 Fees for Land Use

A

B

Seoul Eastern District Court Decision 2012Na6822 Decided February 1, 2013

December 23, 2015

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the amount of profit to be returned by the defendant to the plaintiff is the amount equivalent to the rent for the land of this case, on the premise that the plaintiff, the defendant is obligated to return the profit derived from the possession and use of the land of this case to the plaintiff, on the ground that each house of this case owned by the plaintiff, the plaintiff, the defendant, the E, I, and K has access to the land of this case, and each house of this case including the plaintiff is used as access to the land of this case through the contribution of this case. The house of this case is composed of 15 households, and the defendant is composed of the 15 households.

2. Possession refers to an objective relationship that appears to belong to a person’s factual control under the common sense of society. At this time, a factual control is not necessarily limited to physical and practical control of an object, but should be determined in accordance with the concept of society in consideration of the time and spatial relationship with the object, the relationship with the object, the possibility of exclusion from control of others, etc. However, in order to establish an objective relationship that falls under such factual control, at least the interference of others should be excluded (see, e.g., Supreme Court Decisions 73Da923, Jul. 16, 1974; 2013Da84971, Jan. 29, 2015).

In light of the above legal principles, even if based on the facts acknowledged by the court below, the land in this case is used as access to the land by both E, I, and K, including the plaintiff who is the owner of the land in this case, as well as by the defendant and its lessees, and there is no circumstance to view that the defendant and its lessees control the land in this case to the extent that they are excluded from the plaintiff's occupation or interference. Thus, it is difficult to view that they occupy the land in this case.

Nevertheless, the judgment of the court below which concluded that the defendant or the lessee "Possession and use the land in this case" is erroneous by misapprehending the legal principles as to the calculation of possession and unjust enrichment, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court 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 Young-young

Justices Kim Yong-deok

Justices Kim Jae-han

Chief Justice Kim Jong-il