In cases where there is a designation of a reserved land for replotting under the Urban Development Act, whether the person who has the right to use and benefit from the previous land is unable to use and benefit from the previous land from the effective date of the

Article 36 (1) and (2) of the Urban Development Act

Supreme Court Decision 75Da193 Delivered on March 9, 1976

Plaintiff 1 and 2 others (Law Firm Rate, Attorneys Gan-san et al., Counsel for plaintiff-appellant)

Dong-gu Co., Ltd. (Attorney Yu Young-jin et al., Counsel for the defendant-appellant)

Ulsan District Court Decision 2018Na24158 decided June 20, 2019

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Ulsan District Court. All of the Plaintiffs’ supplemental appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of incidental appeal by the Plaintiffs

For the reasons indicated in its holding, the lower court determined that the calculation of unjust enrichment from the use of the instant land should be based on the land site, which is the actual use condition of the instant land.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on return of unjust enrichment from illegal occupation, as otherwise in the grounds of appeal.

2. Judgment on the Defendant’s grounds of appeal

A. Article 36(1) of the Urban Development Act provides that the previous owner and lessee, etc. of a land to be reserved for replotting may exercise the same right as the previous land to the land to be reserved for replotting or the relevant portion from the effective date of the designation of the land to the date of the designation of the land to be reserved for replotting, and that the previous land shall not be used or profitable, barring any special circumstance. Therefore, the person entitled to use or profit from the previous land shall not use or profit from the effective date of the designation of the land to be reserved for replotting (see, e.g., Supreme Court Decision 75Da

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The instant land owned by the Plaintiffs is located within the project site for the urban development project of the ○○ District and △△△△△△ District. The Plaintiffs, as the owner of the instant land, filed a claim with the Defendant for return of unjust enrichment equivalent to the rental fee due to possession and use from April 4, 2015 to August 21, 2017.

2) Of the “written report of land scheduled for replotting” issued by the ○○○ District Urban Development Association, the previous land column includes “1,383 square meters prior to the instant land (number 1 omitted),” and the “190.7 square meters prior to the land scheduled for replotting” is indicated in the “19.7 square meters prior to the instant land.”

3) Of the previous land column, “△△△△△ District Urban Development Association’s certificate of land substitution” issued by the head of the Urban Development Project Association, the previous land column includes “451.0 square meters prior to the instant land (number 2 omitted),” and the “A49 block 04 block 356.3 square meters in the land substitution column,” and the “A46.3 square meters prior to the date of the land substitution disposition.”

C. Examining the above facts in light of the legal principles as seen earlier, the Plaintiffs, the owners of the instant land, are not entitled to use or profit from the instant land, which is the previous land, from the effective date of the designation of the land substitution to the date of the public announcement of the disposition of replotting, barring special circumstances, such as the date the implementer starts using the land substitution or commencing the profit from the land substitution pursuant to Article 36(2) of the Urban Development Act. Therefore, even if the Defendant occupied and used the instant land without permission during the aforementioned period, the Plaintiffs cannot file a claim for return of unjust enrichment equivalent to the rent with

D. Nevertheless, the lower court rejected the Defendant’s assertion that the Plaintiffs’ right to use and benefit from the instant land was lost without examining whether the instant land was designated as a reserved land for replotting, the effective date of the designation as a reserved land for replotting, and the publication date of a replotting disposition. In so doing, the lower court erred by misapprehending the legal doctrine on the validity of the designation as a reserved land for replotting and the claim for return of unjust enrichment from illegal occupation, thereby failing to exhaust all necessary deliberations

3. Therefore, without further proceeding to decide on the defendant's remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' supplemental appeal is all dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Noh Jeong-hee (Presiding Justice)