If there is no room for any benefit or other income equivalent to the rent to the owner of the real property, the claim for restitution of unjust enrichment against the illegal possessor or the claim for damages.

An owner who has been illegally occupied shall be able to claim against the illegal possessor the compensation for the rent or the return of the unjust enrichment from him/her, or even if there was no occurrence of the illegal possession, the owner of the real estate shall not be able to claim the compensation for damages or the return of the unjust enrichment, if there are special circumstances in which there is no possibility of incurring the profit or any other income from

Articles 750 and 393 of the Civil Act

Supreme Court Decision 85Meu689 Decided October 22, 1985

Plaintiff 1 and one other

Seoul Special Metropolitan City and one other, Attorneys Park Jin-il et al., Counsel for the plaintiff-appellee-appellant-appellee-at-law, Counsel for the plaintiff-appellant-at-law

Gwangju High Court Decision 86Na261 delivered on March 27, 1987

The part of the judgment of the court below representing the defendant is reversed, and that part of the case is remanded to the Gwangju High Court.

The plaintiffs' remaining appeals are dismissed.

The costs of appeal dismissed shall be assessed against the plaintiffs.

As to the Plaintiffs’ grounds of appeal:

According to the reasoning of the judgment below, the court below rejected the claim by the owner of a bridge, not as alleged in the above, since the defendant occupied or used part of the ditch as part of the ditch of this case registered under the name of the plaintiffs, and caused damages to the party in rent, since the defendant temporarily installed two bridges to allow the vehicle and citizens to pass and used it as the site of the national school under the defendant Busan, and the owner of the ditch suffered damages to the party in rent. Accordingly, the court below rejected the claim by the owner of the ditch of this case, as alleged in the above, since the defendant occupied or used part of the ditch of this case and caused damages to the plaintiffs due to the use or profit-making by the former owner of the ditch of this case, it was nothing more than the original answer that the former part of the ditch of this case had been changed into the ditch of this case into the ditch of this case since the land category of March 27, 1922 was naturally changed into the ditch of this case, and it became impossible to recover the farmland or the site of this case as it became unusable for other purposes.

The owner of an immovable property who has been illegally occupied may seek compensation for damages from the illegal possessor as a result of the illegal occupation or the return of unjust enrichment from the illegal occupation, or even if there was no fact of illegal occupation, the owner of the immovable property may not claim compensation for damages or return of unjust enrichment if there were special circumstances where there was no room for any income from the illegal occupation (see Supreme Court Decision 85Meu689, Oct. 22, 1985).

Of the ditches in this case owned by the plaintiffs, the part provided by the defendant for the passage of vehicles and citizens with two bridges has long been installed on the lower side of a river (rivers applied mutatis mutandis) which naturally flows into the river, so there is no possibility of restoring the said part to farmland or site, and it cannot be used for any other purpose. Thus, the defendant's bridge theory makes it impossible for the owner to use the said part for the same purpose. Therefore, the decision of rejecting the owner's claim for return of unjust enrichment is just and there is no error of law by misunderstanding the rules of evidence, such as the theory of lawsuit, or by misapprehending the legal principles on the designation of a river area applied mutatis mutandis. The arguments are groundless.

However, among the ditches owned by the plaintiffs, it is evident that as long as the part used by Defendantsan National School as the site was already restored to the site by the fact of the original judgment, it does not make it impossible for the owner to use and make profits from the said site.

Nevertheless, the court below's rejection of the owner's request for the return of unjust enrichment on the premise that the above part of the farmland was made up of the above and water flows into farmland or site, and that it was impossible to use it for any other purpose, shall be based on the point of inconsistency with the reasoning of the judgment, which constitutes Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. The argument is reasonable.

Therefore, among the ditches of this case among the judgment below, the part on the claim for return of unjust enrichment on the ground that the defendant occupied and used the site in school (the part on the defendant's office of education representing the defendant's city) is not required to determine the remaining grounds for appeal shall be reversed and remanded to the court below. The remaining grounds for appeal by the plaintiffs (the part on the defendant's city market representative) shall be dismissed, and the costs of appeal regarding the dismissal

Justices Yoon In-bok (Presiding Justice)