The exercise of exclusive right to use and profit and the claim for return of unjust enrichment by a person who acquired the land which was provided without compensation by the original owner to the road site by auction (negative)

Since it is reasonable to deem that the original owner of the land provided part of the land as a road site without compensation to waive the exclusive and exclusive right to use the land and then the resident has specifically succeeded to the ownership of the land through an auction after the residents have passed the land without compensation, the person who acquired the ownership of the land can not exercise the exclusive and exclusive right to use the land provided as a road, since it is reasonable to deem that he/she acquired the ownership of the land, with the knowledge that there is a burden of restricting such use and profit-making. Therefore, even if a local government occupies and manages a part of the land as a road, it cannot be said that any damage has occurred to the person, and since there is no benefit from the local government, the request

Articles 211 and 741 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Use Ethics (Attorney Il-hwan et al., Counsel for defendant-appellee)

Seoul High Court Decision 201Na11448 delivered on May 2, 201

Jeonju District Court Decision 95Na6734 delivered on July 11, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are also examined.

According to the reasoning of the judgment below, it is reasonable to view that a person who intends to acquire the ownership of land through an auction is naturally anticipated in light of the empirical rule that he will examine the location, current status, and surrounding land by means of an auction article specification or inspection of execution records kept in the court. Therefore, since the original owner of the land provides it as a passage route to neighboring residents, it shall be exclusive and exclusive use right to the land, and accordingly, the person who specifically succeeded to the ownership of the land after the residents moved through the land without compensation, shall be deemed to have acquired the ownership of the land, at least, with the knowledge that there is a burden of such restriction on use and profit as above on the land. According to the evidence, the court below held that there is no exclusive use and profit-making right as to the land of this case, and since the non-party 1, who is the original owner of the land of this case, is an exclusive owner of the land of this case, and no exclusive use and profit-making right as to the land of this case can be recognized in the auction procedure of this case as part of the land of this case's land which is owned or acquired without compensation.

According to the records, the above fact-finding by the court below is just and acceptable. If the facts are as determined by the court below, the plaintiff also cannot exercise exclusive and exclusive rights to use and benefit from the road portion among the land of this case, the decision of the court below is just in accordance with the precedents of the party members (see, e.g., Supreme Court Decisions 94Da20013, Sept. 30, 1994; 92Da15970, Jul. 24, 1992; 90Da528, Dec. 21, 1990; 91Da22032, Feb. 14, 1992; and there is no error in the misapprehension of legal principles as to the theory of lawsuit. All arguments are without merit.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)