2017Da235883 Unlawful gains

A person shall be appointed.

Elderly Group

Gwangju District Court Decision 2016454762 Decided May 26, 2017

September 26, 2017

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

The grounds of appeal are examined.

1. With respect to the waiver of exclusive use rights, where a certain private land is naturally occurring or is classified as a proposed road site and actually used as a road for the public traffic, the owner of the land shall, in interpreting that the owner of the land has granted the right to free traffic to neighboring residents or the general public by providing the land as a road, or has waived his/her exclusive and exclusive use rights to the land, shall be determined by comprehensively taking into account the following: (a) the circumstance and holding period he/she owned the relevant land; (b) the details and scale of selling the remaining land in installments; (c) the location and nature of the relevant land to be used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the degree of contribution to the relevant land for the effective use and profit of the remaining land partitioned and sold (see Supreme Court Decisions 2006Da34206, Jan. 11, 2007; 2012Da35170, Nov. 15, 2012).

Based on its stated reasoning, the lower court determined that: (a) the Plaintiff, who is the owner of each of the instant lands, provided each of the instant lands as a road and granted the right to free access to neighboring residents or the general public; or (b) cannot be deemed to have waived the exclusive and exclusive right to use each of the instant lands.

In light of the above legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors of violating the rules of evidence or misapprehending the legal principles on the waiver of exclusive use rights.

2. As to the calculation standard of unjust enrichment

A. The basic price of land to be calculated for the amount of unjust enrichment equivalent to the rent for the land occupied and used by the State or a local government as a road, shall be appraised according to the actual use situation as at the time of incorporation, without considering the situation in which the land is incorporated into the road, where the State or a local government has been established under the Road Act, etc. for the land which is actually common use of the general public for the traffic of the general public, and where the land has been occupied as a road by the road management agency or by performing construction works in the form of a road, which is in fact necessary, and where the land has been actually common use for the general traffic, it shall be appraised according to the restricted condition as the road, i.e., the current condition., the current state of the road. In a case where the State or a local government occupies the land before and after being incorporated into the road, without considering the location of the land, development of the surrounding land, and utilization status, etc., if it is objectively evident that the changed price of the land has been changed as around the actual use situation thereafter, and then it shall be assessed (see, Supreme Court Decision 2006Da.

B. The lower court determined that there was no evidence to prove that each of the instant lands was actually used as a road before the land category was changed to a road, and that the area adjacent to each of the instant lands can be recognized as a general residential area in light of the results of the rent appraisal conducted by the first instance court, so it is reasonable to calculate the amount of unjust enrichment for occupying and using each of the instant lands on the basis of “the amount of unjust enrichment for occupying and using them”

C. However, the lower court’s determination is difficult to accept for the following reasons.

In light of the aforementioned legal principles and records, in order to calculate the amount of unjust enrichment incurred by the Defendant by occupying each of the lands of this case as a road, the point at which the Defendant commenced possession of each of the lands of this case should first be determined at the time and at the time, whether each of the lands of this case was actually used for the general public traffic at the time of the commencement of possession, and whether the actual situation of the use of each of the lands of this case is limited to the basic price of each of the lands of this case by examining whether the land of this case was left. Furthermore, in order to calculate the amount of unjust enrichment based on the changed situation of use where a road was not constructed, the determination should be made as to whether the actual use of each of the lands of this case is objectively evident that the actual state of use of each of the lands of this case changed as the surrounding lands

D. Nevertheless, without examining the above points properly, there is no evidence to prove that the land category of each of the instant lands was used as a road at the time when the land category was changed to a general residential area, and the price was assessed by considering each of the instant lands as “the land area” or “the land area” solely on the ground that the neighboring area of each of the instant lands is a general residential area, and calculated the amount of unjust enrichment equivalent to the rent. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of unjust enrichment, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment

3. Conclusion

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 Kim Jae-hyung

Justices Park Young-young

Justices Kim Chang-suk

Justices Lee Dong-won