207 Ghana 126451

80 (5A)

Daegu Northern-gu

Attorney Lee Do-young

Gyeongsan-si

Sinsan-dong 701-17

Representative Market Lest Disease Bureau

Park Jong-sung, Counsel for the plaintiff-appellant

July 16, 2008

August 20, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 16,282,00 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the judgment of the court below and 20% interest per annum from the next day to the day of full payment. The defendant shall also pay from December 10, 207 to December 15, 14, 13, 12, 11, and 2 of the annexed explanation 2.3.45, 6, 7.15, 14, 13, 12, 11, and 34.35, 36, 37, 38, 39, 20, 18, 17, 16, and 34 of the annexed explanation 1 to the "inboard 1" portion and the land in the annexed list 2.35, 36, 37, 39, 208, 17, 34.

1. Basic facts

A. From August 26, 1977, the land listed in attached Table 1 and the land listed in attached Table 2 (hereinafter “instant real estate”) were owned by A Co., Ltd. from August 26, 197. Thereafter, on July 10, 200, the Plaintiff received all of the instant real estate successful bid in Daegu District Court No. 24447 and completed the registration of ownership transfer on the 20th of the same month.

B. At around 196, the Plaintiff, prior to acquiring ownership, 2, 3, 4.5, 6, 7, 8, 15, 14, 13, 12, 11, and 2, the separate explanation as above, 196, the Defendant packageed “A” portion of “A” (hereinafter referred to as “A” portion among the real estate in this case) and “A” portion of the attached list 34, 36, 37, 38, 39, 40, 20, 17, 16, and 34 of the land indicated in the attached list 2, 52(hereinafter referred to as “C” portion among the real estate in this case, and the Defendant, from around 1, 197 to around 197, did not present the residents’ request on the package of “A” portion of “A” and “A” portion of the attached list 1, 140, 17, 16, and 344.7.

D. Of the real estate in this case, the land category was changed on September 9, 197 to the road. [based on recognition] The land category was not disputed, Gap 1 through 4, Eul 3, Eul 6, Eul 1 through 5, Eul 18, Eul 19 out of 15, and the purport of the whole pleadings out of 19.

2. Determination

A. From May 15, 2002, the part concerning 'A' and 'C' among the real estate in this case is recognized as having been actually occupied by the defendant as the ownership of the plaintiff from May 15, 2002.

B. Whether the exclusive use or the right to benefit is waived

(1) Claims: The Defendant asserts that “A” and “C” portion of the instant real estate give the former owner the right to free access to nearby residents, thereby giving up the right to exclusive and exclusive use. Accordingly, the Plaintiff, who acquired the ownership of the instant real estate by auction, cannot file a claim for return of unjust enrichment.

(2) Criteria for judgment: In a case where a private land is naturally created or is actually used as a road which is classified as a site for a road and is actually used for the traffic of the general public, 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 intends to waive exclusive and exclusive right to use and benefit from the land, the following should be determined by comprehensively taking into account all the circumstances such as the circumstance or holding period he/she owned the land, the circumstance and scale of selling the remaining land in installments, the location and nature of the land used as the road, relationship with neighboring land, surrounding environment, etc., and the degree of contribution to the remaining land as a whole for the effective use and benefit of the divided and sold land (see Supreme Court Decision 2005Da31736, May 12, 2006).

(3) Circumstances to consider: The circumstances to consider in this case whether to waive exclusive rights to use and benefit are as follows.

① On September 9, 1977, the land category of the instant real estate was changed on September 9, 197 after the acquisition of ownership by A Co., Ltd.

② Of the instant real estate, “1” and “1” were not offered to the general public only due to the Defendant’s container package, but were actually used as a road from September 197 (or from December 1985 to December 18, 1985, where it is possible to verify the current state of the instant real estate by the two airlines of “B 18,” and the part adjacent to “L” among the land indicated in attached Table 1 other than “1” and “CC” were used as a road. However, considering the type connected to the existing road, which is a village alley, the adjacent land use status, etc., of the instant real estate, the neighboring residents, other than A corporation, appears to have used the road (the current state of “L” among the land indicated in attached Table 1, 401-1 among the land indicated in attached Table 1, 401-1 and adjacent to A corporation.

③ As above, A Co., Ltd did not raise any objection against the use by neighboring residents as a road, and the Defendant did not raise any objection or demand for compensation even when he/she packages a container.

④ 이 사건 부동산 중 'ㄱ' 부분은 국유지인 마을 골목길이 갈라지는 곳에 뾰족한 모양으로 위치하고 있는데, 이 부분을 도로로 사용하지 않으면 A주식회사로 진입이 곤란하며, 이 부분을 도로로 사용하게 되면 기존 도로와 연결되어 A주식회사로 진입이 용이하게 된다.

(4) Determination: In full view of these circumstances, A Co., Ltd. voluntarily provided, or appears to have provided, “A” and “C” parts of the instant real estate as a road, and appears to have contributed to the enhancement of the utility of other land (factory site) owned by A Co., Ltd. as a road. In light of this, A Co., Ltd is determined to have given the instant real estate as a road and given the exclusive, exclusive, and exclusive rights to use and benefit therefrom, in order to increase the utility of its factory site.

In addition, it is reasonable to view that the original owner of the land provided a part of the land as a road site without compensation and waiver of the exclusive and exclusive rights to use the land, and that the resident specifically succeeded the ownership of the land through auction, sale, payment in substitutes, etc. after he/she passed the land without compensation, or that he/she acquired the ownership of the land, even though he/she was aware of such circumstances at least that there was a burden on the restriction on the use and profit. Accordingly, it is not possible to exercise the exclusive and exclusive rights to use the land

In addition, even if a local government is occupying and managing a part of the land as a road, no damage may be caused to the person, and local governments may not make a claim for restitution of unjust enrichment on the premise that there is no benefit (see, e.g., Supreme Court Decision 97Da52844, May 8, 1998). In particular, in the case of auction, it is expected that the location, current status, and conditions of the land should be checked by means of the contents of the public announcement on the auction date or the inspection of specifications of auction or execution records kept in the court. However, in light of the empirical rule, the portion 1 and 2 of the real estate in this case is currently used as the passage of neighboring residents, and it is used as the exclusive and exclusive right to use and benefit from the said portion for about 20 years by the Plaintiff, and the Plaintiff acquired ownership through an auction after packaging of the container in this case. Therefore, the Plaintiff cannot be viewed as having no reason to deem that the Plaintiff acquired the exclusive right to use and benefit from this case without being aware of the Plaintiff’s exclusive right to use and benefit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.

Judges Nam-cheon