배타적 사용수익권 포기 법리에 관한 비판적 검토
Using Private Land as a De Facto Road: Critical Analysis of the Korean Supreme Court Decisions on Unjust Enrichment Claims

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서울대학교 법학연구소
법학, Vol.47 No4 pp.303-340
배타적 사용수익권토지소유권부당이득unjust enrichmentabandonmentright to use and benefit도로road
Suppose that one owns land possessed and used by a local government as a
de facto road and gets no compensation. Under Article 741 of the Civil Act of
Korea, a person who without any legal ground derives a benefit from the
property or services of another and thereby causes loss to the latter shall be
bound to return such benefit. Therefore, it seems quite obvious that the owner of
the land can bring a claim for unjust enrichment against the local government.
Although the courts in Korea, in principle, tend to decide in favor of
plaintiffs, the claim is sometimes denied under a specific theory created by the
Supreme Court. According to that theory, the owner cannot be compensated if he
or she has abandoned the right to use and profit from the land at issue. This
logic has frequently been applied to cases in which the owner had voluntarily
provided the land as a public road for his or her own benefit. At first glance,
this conclusion seems to be convincing particularly when the owner has
partitioned the land into small areas to sell them respectively and has provided a
portion of the land as a road for the purpose of accommodating the rest parts of
the land.
However, this doctrine has a number of problematic aspects.
In the first place, the concept of abandoning the right to use and profit is not
consistent with solid doctrines in Korean property law. Ownership may be
abandoned as a whole, but the constituent rights, such as the right to use and...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 47, Number 1/4 (2006)
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