[사용료][공2010상,240]
In a case where a lawsuit was brought to the effect that a judgment ordering the payment of the fixed fund by the time of delivery of the occupied land became final and conclusive, the case holding that the payment of the fixed fund cannot be claimed on the sole basis of the increase in the officially announced value of the occupied land at the time of the completion of pleadings in the subsequent suit after the date of the closing of pleadings in the previous suit and the increase of approximately 2.9 times
In a case where a lawsuit was brought to the effect that a judgment ordering the payment of periodic funds was finalized until the time of delivery of occupied land, and subsequent to the final and conclusive judgment ordering the payment of the said land, the case holding that the payment of increase in periodic funds cannot be sought on the grounds that there was a special circumstance that significantly infringes on the equity between the parties, solely on the ground that the officially assessed value of the occupied land was increased by 2.2 times and that the rent for reappointment per square meter was increased by approximately 2.9 times before and after the closing of pleadings in the previous lawsuit after the date of closing of pleadings
Article 252(1) of the Civil Procedure Act
Plaintiff
Defendant 1 and one other
Seoul Central District Court Decision 2009Na6362 Decided July 9, 2009
All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.
We examine the grounds of appeal.
1. As to the second ground for appeal
Based on the reasoning of the first instance judgment, the lower court determined that it is reasonable to view that the part of the retaining wall currently occupied by the Defendants in the retaining wall is identical to the part of the retaining wall at the time of the closing of argument in the previous suit, on the following grounds: (a) there is no evidence to acknowledge that the Defendants additionally constructed stone as of June 12, 1997, which was the time when the Plaintiff filed against the Defendants at the Seoul District Court 96Gahap29224, which was the previous suit against the Defendants; and (b) there is no evidence to acknowledge that the Defendants additionally constructed stone.
In light of the records, the judgment of the court below is just and acceptable, and there is no violation of the rules of evidence as alleged in the grounds of appeal.
2. Regarding ground of appeal No. 1
After a final and conclusive judgment ordering the payment of periodic payments, when a special situation occurs which greatly infringes on equity between the parties, as the situations forming the basis for computing such payments were significantly changed, the parties to such judgment may institute a lawsuit claiming to change the amount of periodic payments to be paid in the future (Article 252(1) of the Civil Procedure Act).
원심이 유지한 제1심판결의 인정 사실과 기록에 의하면, 원고는 위 전소( 서울지방법원 96가합29224호 임료청구의 소)에서, 피고 1은 원고 소유의 이 사건 토지 중 제1심판결의 별지도면(2) 표시 ㉸부분 8㎡, 피고 2는 같은 도면 표시 ㉹부분 4㎡를 옹벽 또는 축대를 설치하여 점유하고 있으므로 피고 1은 위 옹벽을 철거하여 그 부분 토지를 인도하고 1996. 7. 13.부터 위 토지 인도시까지 연 62,000원의 비율에 의한 임료 상당의 부당이득을 반환하고, 피고 2는 위 축대를 철거하여 그 부분 토지를 인도하고 1996. 7. 13.부터 위 토지 인도시까지 연 31,000원의 비율에 의한 임료 상당의 부당이득을 반환하라는 청구를 한 사실, 위 법원은 1997. 6. 12. 변론을 종결한 다음, 1997. 6. 26. 원고의 위 각 청구 중 옹벽 및 축대의 철거와 토지인도 청구는 그대로 인용하면서, 피고 1은 1996. 7. 13.부터 위 토지의 인도시까지 연 54,912원의 비율에 의한 금원을, 피고 2는 1996. 7. 13.부터 위 토지의 인도시까지 연 27,429원의 비율에 의한 금원을 지급하라는 내용의 원고 일부승소판결을 선고하였고, 그 판결은 그 무렵 확정된 사실(이하 이 판결을 ‘전소의 확정판결’이라고 한다)을 알 수 있다.
Meanwhile, the Plaintiff filed a claim for payment of KRW 7,984,640 as well as damages for delay from January 1, 2009 to December 31, 2008, by asserting that the area of the instant land possessed by the Defendants was 16m2, respectively, as a result of a new survey by means of a new survey method, and that the area of the instant land possessed by the Defendants was 16m2, respectively.
However, as seen earlier, if the part occupied by the Defendants is the same as at the time of the closing of argument in the previous suit, the part of the Plaintiff’s claim pertaining to the period prior to the date of the previous suit is identical to that of the previous suit in which the final judgment was rendered, and thus, the part corresponding to the Plaintiff’s winning in the final judgment in the previous suit (the part corresponding to the amount for which the Plaintiff’s claim was accepted in the previous suit) does not have any interest in the protection of rights, and the exceeding part is in conflict with the res judicata effect of the final judgment in the previous suit, and thus it is not acceptable to accept. The part of the Plaintiff’s claim pertaining to the period after the date of the previous suit in this case, which corresponds to the period after the date of the previous suit in this case, shall be deemed to be the purport of seeking a change of the judgment in the previous suit. As recognized by the first instance judgment maintained by the lower court, the officially announced land price of the Defendants’ land between the time of the closing of argument in the previous suit and KRW 2.9 times increase in size.
Although the reasoning of the judgment of the court below is somewhat inappropriate, the conclusion that the plaintiff's claim of this case is unlawful or groundless is justifiable, and there is no error of law such as misunderstanding of legal principles as to res judicata as alleged in the
3. Conclusion
Therefore, all appeals are 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 Young-ran (Presiding Justice)