[1] Whether a return of unjust enrichment or a claim for damages may be filed against an illegal occupant in a case where there is no room for any benefit equivalent to the rent or other income from the original owner of the real estate (negative)

[2] The case denying the duty of return of unjust enrichment by a local government on the ground that it is difficult to deem that the owner of the ditch incurred losses due to the failure to use or make profit from the ditch, in case where the local government covered part of the ditch used as an agricultural waterway and provided it as a passage and parking lot for neighboring residents

[1] The owner of an immovable property who has been illegally occupied can seek compensation for damages equivalent to the rent or return of unjust enrichment from the illegal possessor. However, even if the illegal possession did not occur, if there are special circumstances where there is no possibility of causing any profit equivalent to the rent or other income, the owner of the immovable property may not claim compensation for damages or return of unjust enrichment.

[2] The case denying the duty of return of unjust enrichment by a local government on the ground that it is difficult to deem that the owner of the ditch incurred losses due to the failure to use or make profit from the ditch, in case where the local government covered part of the ditch used as an agricultural waterway and provided it as a passage and parking lot for neighboring residents

[1] Articles 741 and 750 of the Civil Act / [2] Articles 741 and 750 of the Civil Act

[1] Supreme Court Decision 85Meu689 delivered on October 22, 1985 (Gong1985, 1545), Supreme Court Decision 87Meu1073 delivered on April 25, 198 (Gong1988, 885)

Korea Agricultural and Rural Infrastructure Corporation (Attorney Lee Dong-young, Counsel for defendant-appellant)

Daegu Metropolitan City Dong-gu (Law Firm Samil General Law Office, Attorneys Kim Han-chul et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 99Na14707 delivered on September 20, 2000

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

1. The judgment of the court below

In light of the above facts, the lower court: (a) it is difficult for the Defendant to use the part of the land adjacent to the lower court to which the Plaintiff had used the above part of the land for the purpose of using the 7th square meters of the land; (b) it is difficult for the Defendant to use the above part of the land adjacent to the 8th square meters of the land for the purpose of using the 7th square meters of the land; and (c) it is difficult for the Defendant to use the part of the land adjacent to the 7th square meters of the land adjacent to the 4th square meters of the land for the purpose of using the 7th square meters of the land; and (d) it is difficult for the Defendant to use the part of the 7th square meters of the land adjacent to the 7th square meters of the land adjacent to the 4th square meters of the land, which was located for the purpose of using the 7th square meters of the land as the 195 square meters of the land adjacent to the 5th square meters of the land; and (d) it is not intended to construct the part of the land.

2. Judgment of the Supreme Court

The owner of a real estate who has been illegally occupied can seek compensation for damages equivalent to the rent or return of unjust enrichment from the illegal possessor. However, even if the illegal possession did not have occurred, the owner of the real estate may not claim compensation for damages or return of unjust enrichment if there are special circumstances where there is no room for any income equivalent to the rent or other income (see, e.g., Supreme Court Decisions 85Meu689, Oct. 22, 1985; 87Meu1073, Apr. 25, 198). According to the facts and records established by the court below, the ditch of this case was originally used only for the original waterway of this case, and it is difficult to view that the plaintiff, the owner of the ditch of this case, was not in the situation where the plaintiff would use it for purposes other than agriculture due to the restoration of the ditch of this case, and it is difficult to view that the plaintiff's use of the ditch of this case was the owner of the above part of the ditch of this case's convenience.

The grounds of appeal alleged that the Plaintiff suffered damage due to the failure to supply agricultural water, the danger of bank inundation, the increase in dredging cost, etc., due to the Plaintiff’s opening of ditches. However, the Plaintiff may not file a claim for return of unjust enrichment on the ground that the Plaintiff suffered damage due to impossibility of using the land, on the ground that the Plaintiff asserted the occurrence of such damage and filed a claim for compensation.

The judgment of the court below that is understood to the same purport is not erroneous in the misapprehension of the legal principles as to the point of violation of the Constitution or the scope of ownership.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)