[1] In a case where a building or structure is owned without authority on the land owned by another person, whether the building or structure itself obtains unjust enrichment equivalent to the rent of the land (affirmative in principle)

[2] In a case where a local government-invested public corporation Gap filed a claim for return of unjust enrichment equivalent to the rent from the land to the time of transferring the land to Eul, even after the land was acquired through consultation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and the Corporation filed a claim against Eul for return of unjust enrichment equivalent to the rent from the land to the time of transferring the land, the case holding that Eul has a duty to return unjust enrichment equivalent to the rent from the occupation and use of the land until the land was delivered due to the removal

[1] Article 741 of the Civil Act / [2] Article 741 of the Civil Act, Articles 43 and 89(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 94Da61144 delivered on September 15, 1995 (Gong1995Ha, 3389) Supreme Court Decision 98Da2389 delivered on May 8, 1998 (Gong1998Sang, 1593) Supreme Court Decision 2007Da21856, 21863 Delivered on August 23, 2007 (Gong2007Ha, 1453)

E. E.S. Corporation (Law Firm Gangseo et al., Counsel for the defendant-appellant)

Defendant (Law Firm Chungcheong, Attorneys Han Chang-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na82942 decided June 28, 2012

The part of the lower judgment regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. Regarding ground of appeal No. 1

The lower court determined that the Defendant did not physically obstruct the removal and transfer of the obstacles of this case, but only neglected the obstacles of this case without transferring them, and thus, even if it can be deemed that the Defendant caused the failure to transfer the obstacles of this case, thereby occupying the land of this case, the Plaintiff may obtain possession of the land of this case by applying for administrative vicarious execution in accordance with the provisions of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, and carrying out vicarious execution for the removal and transfer of the obstacles of this case. Thus, the lower court did not have the interest in filing a lawsuit seeking a claim for extradition of the land of this case, separate from the procedure for administrative vicarious execution as above.

In light of the relevant legal principles and records, although the reasoning of the court below is partially inappropriate or insufficient, the conclusion of the court below's decision that there is no interest in legal action to file a claim for extradition of the land of this case, separate from the procedure for vicarious administrative execution for removal and transfer of obstacles in this case, is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on the violation of

2. Regarding ground of appeal No. 2

The lower court determined that the Defendant did not return unjust enrichment to the Plaintiff even if the Plaintiff, who was the owner of the instant land, suffered considerable loss in rent due to the Plaintiff’s failure to use or make profit from the instant land normally, on November 1, 201 through November 5, 2011, and the Defendant prepared and delivered a written consent that the Plaintiff would be able to sell the instant obstacles voluntarily, on the following grounds: (a) the Plaintiff’s lease of the instant land and the Plaintiff engaged in the sales of munitions after installing the instant obstacles; and (b) the Plaintiff’s use of and profit from the instant land could not be deemed to have been realized; and (c) the Plaintiff, at the Plaintiff’s request, did not return unjust enrichment to the Plaintiff, even though the Plaintiff, who was the owner of the instant land, suffered considerable loss in rent due to the Plaintiff’s failure to use or make profit from the instant land normally.

However, we cannot accept the above determination by the court below for the following reasons.

A person who owns a building, structure, etc. on the land owned by another person without authority shall be deemed to have obtained, as his own, profits equivalent to the rent for the land owned by another person without any legal cause, and thereby, to have inflicted damages equivalent to the rent for the land owned by another person (see, e.g., Supreme Court Decisions 94Da6144, Sept. 15, 1995; 98Da2389, May 8, 1998; 2007Da21856, Aug. 23, 2007; 21863, etc.).

According to the records, it is deemed that at the time of vicarious administrative execution on the obstacles of this case, the defendant prepared and delivered a written consent to the effect that the plaintiff would be able to sell the scrap iron, etc., but this is deemed to be the subject of poor condition, etc., and the military supplies not subject to the written consent, etc. were stored in the logistics warehouse in accordance with the procedures for vicarious administrative execution, and the amount of the military supplies not subject to the written consent, etc. are more than 90 containers as well as more than 7,3930,000,000,0000 won after the appraisal, and the defendant raised several problems concerning the selection of objects of seizure or appraisal in the course of compulsory execution on corporeal movables, and made efforts to prevent the plaintiff's disposal of military supplies on the part of this case, it cannot be concluded that the defendant actually renounced the ownership of the obstacles of this case.

또한 기록에 의하면, 피고는 이 사건 토지의 소유자들로부터 이 사건 토지를 임차하여 그 지상에 창고 4동과 컨테이너 1개 등을 설치하고 약 600ｔ에 이르는 군수용품 등을 보관하여 왔는데, 원고가 이 사건 토지를 협의취득한 이후에도 행정대집행 절차에 따라 위와 같은 지장물이 모두 철거·이전될 때까지 그 상태가 계속되었음을 알 수 있는바, 피고는 원고가 이 사건 토지에 관한 소유권을 취득한 이후에도 창고, 컨테이너, 군수용품 등의 소유와 보관을 위하여 그 부지가 된 이 사건 토지를 점유하여 왔다고 보아야 할 것이므로, 앞서 본 법리에 비추어 볼 때, 특별한 사정이 없는 한 행정대집행 절차에 따라 위와 같은 지장물이 철거·이전되어 원고에게 이 사건 토지를 인도하게 된 시점까지 그 토지를 점유·사용함에 따른 차임 상당의 부당이득금을 반환할 의무가 있다고 할 것이다.

Nevertheless, the court below held that the defendant's obligation to return unjust enrichment was not established on the grounds as stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles as to unjust enrichment, which affected the conclusion of the judgment, and the ground of appeal assigning

3. Conclusion

Therefore, the part of the lower judgment regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-deok (Presiding Justice)