In a case where the Seoul Special Metropolitan City filed a claim against the Korea Electric Power Corporation for the return of unjust enrichment equivalent to the rent for the occupation and use of roads on the ground that the electric wires connecting the former and the former installed on the road owned by the Seoul Special Metropolitan City were not permitted to occupy and use the electric wires, the case affirming the judgment below holding that the Korea Electric Power Corporation did not have a duty to return unjust enrichment.

In a case where the Seoul Special Metropolitan City filed a claim against the Korea Electric Power Corporation for the return of unjust enrichment equivalent to the rent for the occupation and use of roads on the part of the electric lines without obtaining permission for the occupation and use of the electric lines, on the ground that the electric wires connected to the electric poles installed on the road owned by the Seoul Special Metropolitan City were not subject to the occupation and use permission, it is reasonable to view that the electric wires installed by the person who obtained the occupation permission for the electric poles under the Road Act were naturally subject to the occupation and use permission, and as long as the person obtained the occupation permission for the electric poles, it cannot be deemed that the occupation and use of roads on the part of the electric lines installed on the electric poles without obtaining the occupation permission for the electric poles, and the Road Act is subject to the occupation permission for the electric poles and electric wires installed on the premise of the existence of the former owner, while setting the criteria for calculating the occupation and use permission for the electric wires installed on the premise of the former owner, it cannot be deemed that the State or local government did not separately impose the occupation and use permission for the electric lines beyond the legal basis for the occupation permission.

Article 741 of the Civil Act

Seoul Special Metropolitan City (Law Firm KEL, Attorneys Dog-dam et al., Counsel for the defendant-appellant)

Korea Electric Power Corporation (Law Firm LLC, Attorneys Kim Sejong-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na120001 decided July 23, 2010

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

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

1. As to the assertion that there was a misunderstanding of legal principles on permission to occupy and use and unjust enrichment

The Plaintiff asserted that the Defendant was obligated to return unjust enrichment equivalent to the rent for the occupation and use of the instant electric wires, since the Defendant obtained permission for the occupation and use of the instant electric wires only with respect to the electric poles installed on the instant road owned by the Plaintiff without obtaining permission for the occupation and use of the electric wires. Accordingly, the lower court acknowledged the Defendant’s installation and management of the instant electric wires, the payment of occupation and use fees for the instant electric poles, and the administrative interpretation of the Ministry of Administration and Home Affairs regarding the instant provisions, such as the Enforcement Decree of the Road Act and the Road Act, on August 5, 191. In other words, the Plaintiff’s assertion on the following grounds: (a) as to the installation of the instant electric wires as one of the types of structures for which the instant electric wires are installed and thus, the instant electric wires cannot be deemed to have been installed separately from the occupation and use fees for the instant electric wires; (b) as to the installation of the instant electric wires, the instant electric wires cannot be deemed to have been established separately from the occupation and use fees for the instant electric wires.

Examining the records in light of the relevant legal principles, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on permission for occupation and use or unjust enrichment under the Road Act. This part

2. As to the assertion of the reasoning and the incomplete hearing

The allegation in the grounds of appeal on this part is that the Defendant’s lease of electric poles to key telecommunications business operators under the Telecommunications Business Act, CATV broadcasting business operators, and CATV relay broadcasting business operators under the Broadcasting Act cannot be deemed to belong to the Defendant’s electric poles, and thus, the Defendant’s benefit from the installation of telecommunications lines and cables shall be returned to the Plaintiff as unjust enrichment. However, the lower court’s rejection of the Plaintiff’s claim by the Defendant’s unjust enrichment due to the installation of telecommunications lines and cable lines is inconsistent with the reasoning. However, the allegation that

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)