배타적 사용수익권 포기 법리에 관한 비판적 검토

Abstract

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...