Even if a road is not constructed after being incorporated into a road with respect to the land occupied and used by the State or a local government as a road, if it becomes objectively evident that the actual situation of use of the land in question changes like the surrounding land, the method of assessing the basic price of the land for calculating the amount of unjust enrichment equivalent to the rent for such land.

The basic price of land in order to calculate 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 limited condition, i.e., a road, in a case where the State or a local government occupies a road as a de facto controller after the construction of a road by means of the Road Act, etc., or by performing construction works necessary in fact, with respect to the land which is actually used for the general public for the traffic from the former to the latter by the road management authority. In a case where the State or a local government occupies a road only after the land which is actually not actually used for the traffic of the general public, it shall be appraised according to the actual state of use as at the time of its incorporation, without considering the circumstances incorporated into the road: Provided, That if it becomes objectively evident that the actual state of use of the land in question has changed to the surrounding land after its incorporation into the road, the price of the changed state of use shall be assessed, and then the amount equivalent to the rent shall be calculated based on this.

Article 741 of the Civil Act

Supreme Court Decision 95Da39946 delivered on November 24, 1995 (Gong1996Sang, 150) Supreme Court Decision 97Da35559 delivered on November 14, 1997 (Gong1997Ha, 3845 delivered on April 27, 1999) Supreme Court Decision 98Da56232 delivered on April 27, 199 (Gong199Sang, 100Da5876, 58583 delivered on November 19, 201) (Gong2000Da57777 delivered on January 19, 200, 2005Da528529 delivered on March 27, 2005)

[Judgment of the court below]

Ulsan Metropolitan City (Law Firm International, Attorneys Ha Man-young, Counsel for the defendant-appellant)

Supreme Court Decision 2000Da64472 Delivered on March 27, 2001

Busan High Court Decision 2001Na4286 delivered on August 24, 2001

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In light of the records, the court below is just in holding that the land of this case cannot be deemed to have lost its ownership due to its nationalization, such as the defendant's assertion, and there is no misapprehension of legal principles as it is pointed out in the ground of appeal. The ground of appeal on this part is not acceptable.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below held that in this case where there is no evidence as to the fact that the defendant, etc., who acquired the property for public use at the time of the incorporation into the road of this case, obtained the owner's approval for the use thereof, or succeeded to the possession thereof, obtained the legitimate right to possess the land of this case by following the above procedure, the presumption of the autonomous possession of the land of this case was broken. In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the presumption of the autonomous possession. The ground of appeal on this part is not acceptable.

3. As to the third ground for appeal

The basic price of the land for calculating 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 is, in cases where the State or the local government has previously established a road by means of the Road Act, etc. with respect to the land in which the State or the local government actually used for the traffic of the general public, and has occupied or occupied the road as a de facto controlling entity after having the form of the road, i.e., a limited condition as a road. In cases where the State or the local government occupies the road only when the land was previously used for the traffic of the general public, it shall be appraised according to the actual usage as at the time of its incorporation, without considering the circumstances incorporated into the road (see, e.g., Supreme Court Decisions 94Da32085, Sept. 30, 1994; 95Da39946, Nov. 24, 1995; 97Da3559, Nov. 14, 1997; 205Da596369, Jul. 25, 197

According to the records, at the time of incorporation of the land of this case into the site of the road connecting Gyeongnam-do, Busan-do and Gyeongnam-do, which was established by the Joseon General Government on October 14, 1919, the land of this case was actually used as a whole or a return, but thereafter, the land of this case was now used as a whole or a return. However, due to changes in circumstances such as the economic development of the area to which the land of this case belongs and the development of urbanization due to the expansion of population, etc., the land of this case was implemented as a rearrangement project for the land of this case. Accordingly, the neighboring land was made into the site and its neighboring land was formed, and a commercial building such as government offices and restaurants was densely concentrated, and at least the period for which the plaintiff seeks unjust enrichment was used as the site. In light of the location of the land of this case, which can be known by the above recognition facts, and the development of surrounding land and utilization status, etc., the price of the land of this case should not be objectively determined as the price of the land of this case.

4. 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 Lee Jae-in (Presiding Justice)