2016Na25516 Return of Unfair Subscription Money

A

Gumi-si

Attorney Kim Jae-sik, Counsel for the defendant-appellant

[Defendant-Appellant]

Gumi-si

Representative Market Sponsor

Attorney Cheong-chul et al., Counsel for defendant-appellant

Daegu District Court Decision 2015Na5008 decided August 31, 2016

June 14, 2017

July 12, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s purport and correction of the claim as of September 21, 2015 to the Plaintiff, ① 125,440,682 won, and its correction, and

Money with 15% interest per annum from the day after the delivery date of supplementary documents for the cause of the claim to the day of full payment.

payment, ② from October 1, 2015, the date of the Plaintiff’s loss of ownership against Gu and America*** large 27 square meters; and

by the last day of the defendant's possession the amount of 2,028,088 won per month is paid.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The process and status of including the instant land into roads;

1) The part (27 square meters) in the old city before subdivision *** The part (27 square meters) in the 96 large scale was located in the road zone of the 1-2 line (2 line was changed to No. 1-4 line as of January 10, 1974) in the middle of the old city planning announced by the Ministry of Construction and Transportation No. 211 on May 12, 1970.

2) After that, the land before the above subdivision was divided into the old-si on December 30, 1970 **** * * * * * 69 on the old-si (hereinafter “instant land”) and the old-si (* 69 on the same day, the land category on the land cadastre of this case was changed from the “site” to the “road.”

3) The instant land and Gumisisisi **** on March 18, 1972 (the land category of the instant land on the real estate register was still indicated and maintained as “site”, unlike the land register).

4) The land of this case and Gu, Si, Gu, *** The location and current status of 69 large 69 square meters are as shown in the annexed drawing.

B. The defendant's possession and use

On July 9, 1981, when the construction of the 1-2 line was completed after the extension of the existing road, the route of the 1-2 line was approved by the 904 line for the Gyeongbuk-do's Do road (current 514 line for the Do road, the name of the 514 line for the Do road, and the name of the 'Gu-U.S. road'). The Defendant, as a road management authority, occupies and uses the land of this case as a road.

C. The Plaintiff’s ownership relationship

On November 20, 1971, the Plaintiff completed the registration of ownership transfer on the ground of sale as of November 19, 1971 with respect to Gumi-si**** on the ground of sale as of November 19, 1971. From that time, the title holder of the instant land divided from the said land is the Plaintiff.

【Fact-finding without dispute, Gap evidence Nos. 1 through 4 (including branch numbers if there is no special indication; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 3, 5, 6, and 7, the video and the fact-finding results with respect to the ordinary North Korean Dos, the purport of the whole pleadings, as a result of the fact-finding of the party's deliberation

2. Determination

A. Determination on the cause of the claim

According to the above facts of recognition, the defendant acquired profits equivalent to the profits from the possession and use of the land of this case as part of the old-American central road, and thereby suffered damages equivalent to the presumed owner. Thus, the defendant is obligated to return unjust enrichment due to the possession and use of the land of this case (the unjust enrichment from August 1, 2010 to September 30, 2015 sought by the plaintiff) to the plaintiff, unless there are special circumstances such as prescriptive acquisition.

B. Judgment on the Defendant’s assertion on the completion of the statute of limitations for possession

1) The Defendant asserts that there is no reason to respond to the Plaintiff’s request, since the Defendant used the instant land as a road after completing compensation procedures under the relevant laws and regulations, as in the instant land incorporated into No. 1-2 line among those publicly notified as urban planning facilities, and acquired prescription by occupying the said land in a peaceful and public performance manner for at least 20 years as owned by the intent to own it.

A) In a case where the nature of the source of right to possess real estate is unclear, the possessor is presumed to have occupied in good faith, peace, and public performance pursuant to Article 197(1) of the Civil Act. This presumption also applies to cases where the State or a local government, which is the managing body of cadastral records, occupies the real estate in good faith, peace, and public performance (see, e.g., Supreme Court Decision 2010Da33866, Aug. 19, 2010).

B) As recognized earlier, the instant land was incorporated into the first-2 line on May 12, 1970 in accordance with the old-U.S. Urban Planning Act, and the construction of the said first-2 line on July 9, 1981 was completed. From that time, the Defendant provided the instant land for the traffic of the general public, and occupied and managed it as a road.

Therefore, as long as the presumption of autonomous possession is not broken, the Defendant’s possession of the instant land shall be deemed to have completed July 9, 2001, from July 9, 1981 to July 9, 2001, which was 20 years after the date of commencement of possession, as the date of completion of road construction. Furthermore, upon the completion of the prescriptive acquisition of real estate, the possessor may file a claim against the nominal owner for the implementation of the procedure for the registration of ownership transfer on the ground of the completion of the prescriptive acquisition, and the nominal owner is obligated to comply therewith, and thus the possessor is not yet entitled to acquire ownership due to the failure to complete the registration of ownership transfer under the high-priced name, the possessor, who is the possessor, and the Plaintiff is not entitled to file a claim for return of unjust enrichment due to possession against the Defendant (see Supreme Court Decision 92Da512

Therefore, the defendant's argument to complete the prescription of possession is justified.

2) As to this, the Plaintiff asserts to the effect that the presumption of possession with respect to the land of this case was reversed as a malicious possession without permission.

A) On the other hand, even if the possessor of real estate asserts the source of right to possess real estate, such as the purchase and sale or donation, but this is not recognized, the presumption of possession with the reason that the possessor is not recognized as the source of right to possess real estate can not be reversed or deemed as the possession with the nature of the source of right (see, e.g., Supreme Court Decision 9Da72743, Feb. 26, 2002).

Therefore, even if the State or a local government is unable to submit documents regarding the acquisition of land for which the completion of acquisition by prescription was claimed, in light of the following circumstances: (a) the purpose and purpose of the possession; (b) whether the State, etc. has endeavored to exercise ownership after the State, etc. commenced possession; and (c) the use or disposal relationship of other divided land; and (b) the possibility that the State, etc. lawfully acquired the ownership by undergoing the procedure for acquiring the property for public use at the time of the commencement of possession cannot be ruled out, the presumption of possession by the State, etc. does not constitute an illegal possession (see, e.g., Supreme Court Decisions 2010Da94731, 194748, Mar. 27, 2014; 2014Da206952, Jul. 9, 2015; 2014Du1369, Jun. 9, 2016).

B) In full view of the statements in Gap evidence Nos. 1, 2, and 3, the fact-finding results of the fact-finding, and the purport of the whole pleadings, the circumstance is acknowledged that the defendant, who is the State or road management authority, did not have the content of acquiring the ownership of the land of this case on the cadastral record of the land of this case used as a road or the donation of real estate, etc., and that the defendant did not submit documents on the acquisition of the land of this case (the defendant asserts that it is difficult to find documents on the procedure and compensation for the acquisition of public property of the land incorporated into the road after the lapse of a large number of days from the completion

C) On the other hand, considering the facts acknowledged in the above paragraph (1) as follows: Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 through 9, the result of the commission of appraisal of rent to appraiser B, the result of the fact inquiry into North Korea Gyeong-do at the trial of the party, and the overall purport of oral argument, the following circumstances (i.e., (viii) cannot be ruled out, in light of the above legal principles, the possibility that the defendant had gone through legitimate procedures for acquiring ownership at the time of entering the land in this case into the road zone, it is difficult to recognize the defendant's possession of the land in this case as unauthorized possession, and there is no evidence to acknowledge any other circumstance to reverse the presumption of autonomous possession. Therefore, the plaintiff's above assertion is without merit.

① On December 30, 1970, as the land was incorporated into the road zone of No. 1-2 line, which is the land before subdivision in accordance with the old-U.S. Urban Planning Act,****, a part of 96 square meters (27 square meters), which is the land before subdivision, was divided into the road zone of No. 1-2 square meters (hereinafter “the above land”). As the above land was subdivided into the land cadastre******69 square meters and this case’s land was subdivided into the land surface, and on the same day, the land category on the surface of the land of this case was changed from the site. The above application for land subdivision was made by the mountain-gun (hereinafter “the defendant”).

② As for the land adjacent to the same day, the Defendant was incorporated into the zone of No. 1-2 in the zone of No. 1-2 in the middle of the land ********** 71 of the site *** * * by dividing the land into the site 26 of the site (the division form is the same as the separate drawing) ****** * the land classification from the site to the road of No. 1-2 of the site, and the divided land ********* * * the completion of the registration of ownership transfer on October 24, 1978, which was the date of completion of road construction on the ground of the transfer on February 15, 1978.*** the Defendant completed the registration of ownership transfer in the future of the Defendant *** the other reasons for incorporation into the zone of No. 1-2 of the land including the land 1-2 of the land.

③ Of the instant land, the existing roads (including the Gu-Si, Si, which had completed the registration of ownership preservation on September 16, 1930, ********* the roads are adjacent to the instant land, and the current status is the same as the annexed drawing) have been used as roads since before around 1960.

④ From the time of incorporation of the instant land into the road zone of No. 1-2, the Defendant did not impose taxes, such as property tax, on the instant land on the Plaintiff from the time of incorporation into the road zone of No. 1-2. However, the Defendant continued to impose taxes, such as property tax, on the Plaintiff or its transferee on the instant land divided with the instant land***

⑤ The road expansion work was conducted after the instant land was incorporated into the existing road, and the expanded road was recognized as a local highway No. 904 line in the border-do on July 9, 1981 after the completion of the construction of the road. From that moment, the Defendant, who is a road management authority, has occupied and managed the instant land as a road while providing it for the traffic of the general public.

(6) On the other hand, the plaintiff acquired as of November 20, 1971, which was the land before subdivision *** the same Dong, divided into the above land ****** on August 5, 198, after residing in a building located on the ground level of 69 square meters as of August 5, 1998 and divided as of August 21, 2005, donated 1/2 of the above 1/2 of the land and the above 1/2 of the above 1008-48 land and the above 1/2 of the above 108-48 land and the above 1/2 of the above 10 to Da (D's wife) and completed the registration of the transfer of ownership. However, the land of this case incorporated as of April 21, 200 **** 96 without disposing of the land in the name of the plaintiff.

7) The land in this case is located near the Gu, the Dong, the Dong, and its members are the street zone formed by the commercial building in the roadside of the road (the general commercial area in the city with a large migratory population). The land in this case seems to have been located in an area where the market price of land has been relatively high since long been located in the Gu, the Gu, the Si, the land before the division *****6, one of the reasons for the purchase of the land in this case). The basic price of the land in the last six years appraised as to the calculation of the annual rent in the 27th square of the land in this case is a considerable amount of money as seen in the table below.

A person shall be appointed.

8. The plaintiff (the plaintiff on April 1, 1927) is divided with the land of this case****

15

Despite the fact that the instant land was already well known from the time of acquisition of the said land as to the fact that it was incorporated into the road site in accordance with the old and American Urban Planning Act, the Defendant did not raise an objection or demand compensation as to the inclusion of the instant land into the road site for a period of at least 40 years after the acquisition of the said land. Of that, on May 30, 2015, the said land was required to be compensated for the first time before the lapse of May 30, 2015, and the instant lawsuit was filed on July 22, 2015.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed without the need to review further and without any justifiable reason. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the decision of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Clinical technicians (Presiding Judge)

Lee Jin-Jin

South Korean War