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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff’s assertion is the owner who acquired the land indicated in the annexed sheet on November 28, 1983, and the Defendant occupies and uses as a road the portion of 42 square meters in part (A) connected with each point in the annexed sheet No. 1, 2, 3, 6, and 1 (hereinafter “instant land”) among the land indicated in the annexed sheet without any legal cause. The Defendant is obligated to return the amount equivalent to the rent to the Plaintiff as unjust enrichment.
2. Determination
A. Whether the Defendant occupies a road (1) can be divided into possession as a road management authority and possession as a de facto controlling entity.
In a case where a public announcement of the approval of routes and a road zone are determined for the existing de facto road, or where a road is constructed by the implementation of an urban planning project under the Urban Planning Act, possession as a road management authority can be recognized from the beginning of the existing road. In a case where the State or a local government performs the reconstruction or maintenance work of a road, such as expansion of a road, packaging, or sewerage construction, and thus, for the public traffic, it shall be deemed that the existing road is under the de facto control of the State or a local government, and possession as a de facto controlling entity can be recognized
(See Supreme Court Decision 94Da58216 delivered on June 29, 1995). (2) The following circumstances are considered as follows: (i) the instant land is packed in asphalt; (ii) the statement of No. 11 (including paper numbers); (iii) the video of No. 9 and No. 10 (including paper numbers); and (iv) the overall purport of the pleadings; and (iv) the following circumstances, namely, the instant land is: (i) the Defendant appears to be maintaining and managing the instant land; (ii) the land is supplied as a passage to the general public for a long time; and (iii) the water supply and drainage is laid underground.