[1] Where private land is actually used as a road, the standard for determining whether a landowner grants a free right to passage or waive a right to use and benefit from the land

[2] The case holding that it is reasonable to view that the landowner has waived his exclusive and exclusive right to use and benefit from the portion of the land provided as the road in light of all the circumstances including the fact that he did not receive compensation but did not raise an objection and disposed of only the remaining land except for the portion of the land incorporated into the road as the road since it was permitted to occupy the part of the road incorporated into the road among his own land due to the Saemaul capital extension

[3] The standard for assessing the basic price of the land to calculate the amount of unjust enrichment that a person who occupies another's land without title shall return to the owner of the land

[1] In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or waives the exclusive and exclusive right to use and profit from the land, it shall be determined by comprehensively taking into account all the circumstances such as the circumstance and period he/she owned the land, the situation and scale of selling the remaining land in installments, the location and nature of the land to be used as the road, the relationship with the neighboring land, the surrounding environment, etc., and the degree of contribution to the land in question for the effective use and profit of the remaining land partitioned and sold.

[2] The case holding that it is reasonable to view that the landowner has waived his exclusive and exclusive right to use and benefit from the portion of the land provided as a road, in light of all the circumstances including the fact that he did not receive compensation but did not raise an objection and disposed of only the remaining land except the portion of the land incorporated into the road as a result of the Saemaeul Corporation's extension into the road

[3] In order to calculate the amount of unjust enrichment to be returned to the owner of another's land without title, the basic price of the land shall be assessed based on the actual conditions of use at the time when the possessor commences possession.

[1] Article 741 of the Civil Act / [2] Article 741 of the Civil Act / [3] Article 741 of the Civil Act

[1] [3] Supreme Court Decision 98Da56232 delivered on April 27, 1999 (Gong1999Sang, 1037) / [1] Supreme Court Decision 88Da1697 delivered on July 11, 1989 (Gong1989, 1218), Supreme Court Decision 97Da2714 delivered on December 12, 1997 (Gong1998Sang, 269), Supreme Court Decision 97Da5284 delivered on May 8, 1998 (Gong198Sang, 1583), Supreme Court Decision 98Da59262 delivered on May 12, 200 (Gong200Ha, 1383), Supreme Court Decision 205Da152575 delivered on August 25, 205 (Gong2005Da136575 decided August 25, 2005)

Plaintiff (Law Firm Han-ro, Attorneys Long-ro et al., Counsel for the plaintiff-appellant)

Gwangju City (Attorney Kim Jong-ho, Counsel for the defendant-appellant)

Defendant 2 and one other

Suwon District Court Decision 2004Na10999 Decided May 12, 2005

The part of the lower judgment against the Defendants regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The Plaintiff’s appeal and the remaining appeals by Defendants 2 and 3 are dismissed.

We examine the grounds of appeal.

1. Determination on the grounds of appeal by Defendant Gwangju City

A. As to the assertion of violation of the rules of evidence

In light of the records, we affirm the decision of the court below that it is not sufficient to recognize that the Gangnam General Construction Corporation purchased the land incorporated in the Saemaeul City of this case from the deceased non-party 1, and donated it to the defendant Gwangju City by purchasing it from the deceased non-party 1, and there is no error of misconception of facts due to violation of the rules of evidence as otherwise alleged in the ground of appeal.

B. As to the waiver of the right to use and benefit

In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or renounces exclusive and exclusive rights to use and benefit from the land, it shall be determined by comprehensively taking into account the following: (a) the circumstance and period he owns the land; (b) the details and scale of selling the remaining land in installments; (c) the location and nature of the 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 land for the effective use and benefit of the remaining land partitioned and sold (see, e.g., Supreme Court Decisions 88Da1697, Jul. 11, 1989; 98Da59262, May 12, 200; 205Da1575, Aug. 25, 2005).

According to the records, the non-party 1 owned the above 13-1 square meters of 14,645 square meters of 14,372 square meters of 14,00, and the above 15,372 square meters of 200 square meters of 4,000, and the non-party 2, who was the non-party 1 of this case, entered the above 4-1 square meters of 7,000 square meters of 1,000 and the above 14-1 square meters of 7,000 square meters of 4,000, and the non-party 3, who was the non-party 1 of this case, entered the above 1,000 square meters of 1,000 and the non-party 2, as the non-party 1 and the non-party 2, who was the non-party 3 of this case, to whom the non-party 1 and the non-party 3 had agreed to the above 1,000 square meters of 1.

As above, the consent of the deceased non-party 1, who had been aware of the situation, to use the land in this case as a road can be seen as allowing the defendant Gwangju City to occupy and use the part of the land in this case 1 and 2 as a road. In light of the above special circumstance, the defendant Gwangju City's permission to use the above part of the road free of charge, barring special circumstance, can be seen as allowing the use of the above part of the road free of charge, and the defendant 3, the defendant 1, 1, 1, 2, was thought to have received from the owners of the land to be incorporated into the above Saemaeul City as a result of donation from the owner of the land to the above Saemaeul City, and the land was not paid compensation to the owner of the land transferred into the road in Gwangju City, but there was no objection by the landowner, and there was no objection by the person who provided the land in this case to the compensation or rent, etc., and the remaining part of the land transferred to the non-party 1, 2, after the completion of the land in this case's disposal.

Nevertheless, the court below determined that it is difficult to view that the deceased non-party 1 permanently renounced the exclusive and exclusive right to use and benefit from the part of the land of this case 1 and 2 as a road. The court below erred by misapprehending the legal principles on the waiver of the right to use and benefit from the land of this case, and such illegality has influenced the judgment.

2. Determination on Defendant 2 and 3’s grounds of appeal

A. As to Defendant 2’s assertion of donation

As seen earlier, the lower court’s determination rejecting the assertion that Gangnam General Construction Co., Ltd purchased the instant land 1 and 2 from the deceased Nonparty 1 and donated to the Defendant Gwangju City is justifiable. Therefore, Defendant 2’s ground of appeal on this part is without merit.

B. As to Defendant 3’s assertion of waiver of the right to use benefits

The deceased non-party 1 provided only the portion to be incorporated into the above Saemaeul City (Agricultural and Fishing Villages 202line) among the land in this case 1 and 2 without compensation, and waiver of exclusive and exclusive rights to use and benefit from the land as seen earlier. According to the records, the part of the land in this case owned by the defendant 3 among the land in this case is not incorporated into the above Saemaeul City. Thus, the deceased non-party 1's assertion in the grounds of appeal on the premise that the defendant 3 renounced exclusive and exclusive rights to use and benefit from the part in this case among the land in this case 1 is without merit.

C. As to Defendant 2’s assertion of occupied area

In light of the records, the court below is just in finding that the area occupied by Defendant 2 among the land of this case is 126 square meters by integrating the evidence adopted in its judgment, and there is no error of misconception of facts due to violation of the rules of evidence as otherwise alleged in the ground of appeal.

D. As to Defendant 3’s assertion of the point of commencement of occupation and the area of occupation

In light of the records, it is acceptable that the court below recognized that Defendant 3 occupied and used the portion of 831 square meters of the land of this case from the time when he obtained approval for the new factory establishment from the defendant Gwangju City Mayor on July 25, 2002 as part of the building site of this case and access roads to the factory of this case, and there is no error of misconception of facts due to violation of the rules of evidence as otherwise alleged in the ground of appeal.

E. As to the assertion regarding the scope of return of unjust enrichment by Defendant 2 and 3

In order to calculate the amount of unjust enrichment to be returned to the owner of another person's land without title, the basic price of land should be assessed based on the actual conditions of use at the time when the possessor commences possession.

According to the records, among the land of this case 1, 2, the part occupied by Defendant 2 and 3 is forest land category; the part corresponding to the above factory site was altered from forest land category to land site; Defendant 3, who was the above Saemaeul leader, had obtained permission for forest damage at the time to implement the expansion work of the above Saemaeul Agricultural Village (Agricultural and Fishing Villages 202line); Defendant 2, who newly constructed a factory in the above new village 14 site under his own name and constructed a factory in the above factory site; Defendant 2, among the land of this case between the above factory and the above Saemaul Agricultural Village 2, had obtained permission from the head of the actual village to occupy the above factory site to use the above portion for entering the factory site; Defendant 3, while constructing a new factory on the above new village 13-13 land; Defendant 3, who had obtained permission for forest damage to the area corresponding to the above factory site; and Defendant 2, who had occupied the above factory site and the part of the access road to each of the above land to be used by Defendant 3, etc.

Therefore, the court below should have examined whether Defendant 2 and 3 left the actual use condition of the occupied part before the commencement of new construction of a factory, and whether construction was done to change the use condition of the occupied part while conducting new construction of a factory, and found the actual use condition at the time of the commencement of possession as to the occupied part of Defendant 2 and 3 of the instant land, without making proper deliberation thereon, and on the premise that calculating the amount of unjust enrichment on the premise that it was recognized as the actual use condition at the time of the commencement of possession as land and land for a factory, it is not sufficient to conduct a deliberation, or it is clear that this affected the conclusion of the judgment, and it is evident that it affected the conclusion of the judgment.

3. Judgment on the Plaintiff’s grounds of appeal

As seen earlier, the deceased non-party 1 renounced the exclusive and exclusive right to use and benefit from the portion of the land provided as a road among the land in this case 1 and 2. According to the records, it is reasonable to view that the land in this case 1 and 2 was owned by the deceased non-party 1, and that the ownership transfer registration was completed in the future of the deceased non-party 2, the wife of the deceased due to the consultation division on May 7, 1997, and that the ownership transfer registration was completed in the future of the plaintiff, the grandchildren of the deceased non-party 2 on September 20, 200, on the ground of donation on September 20, 200. In light of the situation where the plaintiff acquired the land in this case 1 and 2, barring any special circumstances, the plaintiff is not entitled to exercise the exclusive right to use and benefit from the land in this case, since it is reasonable to deem that the plaintiff, as the condition of restricting the above use and benefit from the land in this case 1 and 2, was at least aware of such circumstances.

The plaintiff's argument in the grounds of appeal is premised on the fact that the plaintiff can file a claim against the defendant Gwangju City for removal and delivery of the part of the land of this case 1 and 2, and as seen above, the plaintiff cannot claim removal and delivery of the land since it cannot exercise exclusive and exclusive right to use and benefit from the part of the road against the defendant Gwangju City which occupies the part of the road according to the purpose provided by offering the general public for their passage. Thus, the plaintiff's argument in the grounds of appeal is without merit.

4. Conclusion

Therefore, since the part against the Defendants regarding the claim for return of unjust enrichment among the judgment below is no longer maintained, it shall be reversed and remanded to the court below. The Plaintiff’s appeal and the remaining appeals by Defendants 2 and 3 are dismissed, respectively, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)