(a) Where the land is incorporated into a road and used without due process, the obligation to return unjust enrichment;

(b) Change of land category, non-taxable facts, and autonomous occupancy.

A. In the event that the defendant market incorporates an individual's land into a road and packages it without undergoing a land readjustment project or other legitimate legal procedures while performing road expansion works, or uses it as a ditch by installing sewage holes, etc., the owner of the land is liable to return unjust enrichment from the rent party to the land.

B. The fact that the land category is changed to a road and is exempt from taxation, and is provided on the road alone cannot be viewed as possession frequently due to its nature.

Article 5 of the Road Act, Articles 741 and 245 of the Civil Act

Supreme Court Decision 70Da2487 delivered on December 22, 1970, 75Da997 delivered on December 9, 1975 (No. 11066, Supreme Court Decision 23Third citizen105 delivered on December 9, 197, Supreme Court Decision 299, Court Gazette 529, Court Gazette 858 delivered on December 9, 1975

Plaintiff

Gwangju City

Gwangju District Court of the first instance (72 Gohap318, 74 Gohap503)

The judgment of the first instance is modified as follows.

피고(반소원고)는 원고(반소피고)에게 별지목록 1호 부동산에 대하여 1964.1.1.부터 1966.12.31.까지 매월 평당 돈 120원씩을, 1967.1.1.부터 1968.12.31.까지 매월 평당 돈 195원씩을, 1969.1.1.부터 1970.12.31.까지 매월 평당 돈 280원씩을, 1971.1.1.부터 1972.12.31.까지 매월 평당 돈 320원씩을, 1973.1.1.부터 1974.12.31.까지는 매월 평당 돈 380원씩을, 1975.1.1.부터 1976.6.24.까지는 매월 평당 돈 430원씩을, 별지목록 2호 부동산에 대하여 1964.1.1.부터 1966.12.31.까지는 매월 평당 130원씩을, 1967.1.1.부터 1968.12.31.까지는 매월 평당 200원씩을, 1969.1.1.부터 1970.12.31.까지는 매월 평당 250원씩을, 1971.1.1.부터 1972.12.31.까지는 매월 평당 270원씩을, 1973.1.1.부터 1974.12.31.까지는 매월 평당 300원씩을, 1975.1.1.부터 1976.6.24.까지는 매월 평당 330원씩을, 별지목록 3호 부동산에 관하여 1964.1.1.부터 1966.12.31.까지는 매월 평당 180원씩을, 1967.1.1.부터 1968.12.31.까지는 매월 평당 250원씩을, 1969.1.1.부터 1970.12.31.까지는 매월 평당 350원씩을, 1971.1.1.부터 1972.12.31.까지는 매월 평당 380원씩을, 1973.1.1.부터 1974.12.31.까지는 매월 평당 400원씩을, 1975.1.1.부터 1976.6.24.까지는 매월 평당 450원씩을, 별지목록 4호 부동산에 대해서 1969.1.1.부터 1970.12.31.까지는 매월 평당 250원씩을, 1971.1.1.부터 1972.12.31.까지는 매월 평당 280원씩을, 1973.1.1.부터 1974.12.31.까지는 매월 평당 320원씩을, 1975.1.1.부터 1976.6.24.까지는 매월 평당 380원씩을, 별지목록 5,6호 부동산에 대해서 1968.1.1.부터 1970.12.31.까지는 매월 평당 230원씩을, 1969.1.1.부터 1970.12.31.까지는 매월 평당 330원씩을, 1971.1.1.부터 1972.12.31.까지는 매월 평당 350원씩을, 1973.1.1.부터 1974.12.31.까지는 매월 평당 400원씩을, 1975.1.1.부터 1976.6.24.까지는 매월 평당 500원씩을 각 가산하여 지급하라.

The Defendant-Counterclaim Plaintiff’s counterclaim is dismissed.

The litigation costs shall be borne by all the defendant of the first and second instances through the principal lawsuit and counterclaim.

The plaintiff (Counterclaim defendant hereinafter the plaintiff) sought a judgment identical with the Disposition 1 as the main lawsuit (amended by the trial court). The defendant (Counterclaim plaintiff hereinafter the defendant) is a counterclaim, and the plaintiff seeks to implement the registration procedure for transfer of ownership based on the completion of acquisition by prescription on May 30, 1972 against the defendant on the attached list 2, 3, and 4.

The judgment of the first instance shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff, and as a counterclaim, a judgment like the purport of the claim is sought.

First of all, according to the records of Gap's evidence Nos. 1 through 6 (each copy of the register) without dispute about the plaintiff's principal claim, it is recognized that each of the above real estates Nos. 1 through 6 (hereinafter "the above real estate") has been registered in the name of the plaintiff as of now, and unless there are special circumstances, each of the above real estate is presumed to be the plaintiff's ownership. On the other hand, the testimony of non-party Nos. 1 and 2 of the first instance trial witness and non-party No. 3's cadastral appraisal, and the result of the on-site inspection of the first instance trial and the first instance trial of the first instance trial, the cadastral parts of the real estate Nos. 1, 3 and 6 of the above real estate and the real estate No. 289 of the second list No. 1, 255 of the real estate list No. 289, from around 1962 to the road construction of the above real estate and the construction of the land readjustment project or other legal procedures for the use of sewage can not be recognized.

As to the plaintiff's legal representative's assertion that the defendant used this real estate as a road without a legitimate title, the plaintiff's legal representative suffered losses from the rent party and the defendant's obligation to return it was unjust, the defendant's legal representative occupied each real estate in the list Nos. 2, 3, and 4 of this case from May 30, 1952 with the intention of ownership from May 30, 1952. Thus, the plaintiff's claim against this portion is unfair, and since the plaintiff's claim against this portion is unfair, each of the above real estate Nos. 1,2, 3, 4, 5, and 4 of this case's real estate was changed to a road without a legitimate title, and since it was unjust for the defendant to return it, the defendant's legal representative can not be viewed as having provided the above real estate to the plaintiff with the intention of possession of the road from May 30, 1952 without being subject to taxation. However, the defendant's legal representative's assertion that the above real estate was not subject to ownership or possession of the above real estate.

Therefore, since the defendant did not have any assertion on the right to possess the real estate otherwise, the defendant has a duty to return to the plaintiff the unjust enrichment from the rent (see Supreme Court Decision 73Da600, 73Da1771, May 13, 1975; Supreme Court Decision 75Da997, Dec. 9, 1975). Accordingly, the result of the appraisal of the rent for each real estate of the non-party 4 of the branch office non-party 4 before the Korean Association of Real Estate Transactions at the party members (excluding the result of the appraisal of non-party 5, which differs in part from the appraisal result), the rent for each real estate from January 1, 1964 to April 30, 1975 should be considered as the attached list, and the rent for each ordinary real estate from April 30, 1975 to the date of the closing of argument as of June 14, 1976.

Then, as to the defendant's counterclaim claim, the defendant's legal representative has occupied the real estate Nos. 2, 3, and 4 of this case as the cause of the counterclaim from May 30, 1952 at the market price as the owner's intention from May 30, 1952. Thus, each claim for the registration of transfer of ownership has expired on this ground. Thus, as determined in the preceding part of the lawsuit, there is no evidence that the possession of the defendant's real estate in this case is an autonomous possession as the owner's intention. Thus, the defendant's claim for the counterclaim should not be examined further.

If so, the plaintiff's claim of the principal lawsuit is justified, and the judgment of the court of first instance partially different result is modified, and the defendant's counterclaim is dismissed, and the costs of the lawsuit are assessed against all the defendant through the principal lawsuit. It is so decided as per Disposition by the court of first and second instances.

[Attachment Omission]

Judges Kim Jae-ju (Presiding Judge)