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1. The part against the defendant in the judgment of the first instance shall be revoked;
2. The plaintiff's claim against the above cancellation portion is dismissed.
3.
Reasons
1. Facts of recognition;
A. On March 15, 1978, C completed the registration of transfer of ownership in its name with respect to the area of 6,043 square meters (hereinafter “D land before division”) prior to Gyeyang-gu, Gyeyang-gu (Seoul). Upon C’s application on November 29, 1978, E or V was divided from D land prior to subdivision, including B’s 1,013 square meters (hereinafter “instant land”).
C, after dividing the land as above, most of the remaining lands except the instant land were sold to a third party from September 20, 1979 to December 31, 1985.
B. The instant land is abutting on the remaining land of eight meters wide, located in the shape of the heat (c) in the part of the D land before subdivision, which is located in the width of eight meters.
C. Meanwhile, on September 27, 1973, the Governor of the Gyeonggi-do decided to include the instant part of the land into the site of 2-12 lines in the width of the “X Urban Planning Road” and the length of section 538 meters. D.
The instant land is provided by the Defendant for the passage of the general public through the implementation of the asphalt packing System, etc., and the Plaintiff was awarded the said land in the public sale process on May 18, 2005 and completed the registration of ownership transfer in its name on the 23th of the same month.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 17, video and the purport of the whole pleadings
2. The plaintiff's assertion and judgment
A. The plaintiff's assertion that the defendant without any title occupies and uses the asphalt package work on the land of this case as a road. Thus, the plaintiff, the owner of the land of this case, is obligated to return unjust enrichment to the plaintiff.
B. The land owner renounced his/her right to use and benefit if the land was actually used as a general traffic according to the changes in the surrounding environment after the land was incorporated as a road-to-road site.
If it is deemed that the consent for the use of a road has been granted, the owner thereof.