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 profit, cannot be abandoned separately. In addition, this cannot take effect in Korea where the registration is required for any alteration in a real right, since partial abandonment of ownership is not registrable. Moreover, the Supreme Court seems to have gone too far in interpreting the intent of the owners. The state of lands being used as a public road is not a sufficient ground to construe that the owners have permanently waivered their rights to be compensated. Lastly, it is likely to be used as a tool to justify a de facto taking without compensation. Though the Court is taking a prudent approach in applying this doctrine, there are still some cases where the owners have lost when they should have been compensated. These cases imply that there is a possibility of misusing this doctrine for broader takings. In this regard, the above doctrine should be discarded, and owners should be entitled to compensations, except for the extreme situations where the doctrine of estoppel might be applied.