[손해배상][집21(3)민,021]
The standards for calculating the damage caused by the removal of an unauthorized building constructed on the State-owned land within the land partitioning area;
If an unauthorized building constructed on the state-owned land in the area where the land partition is located, it is apparent that the building is the one for voluntary removal or compulsory removal without compensation for damages. Therefore, the damages caused by the removal of the building without due process of the employees concerned at the time of the occurrence of the damages is merely a minor amount of the profits to use the site as a house with illegal possession ( several months) for a considerable period of time, and the profits to recover the residues of the destroyed building.
[Judgment of the court below]
Attorney Han-chul et al., Counsel for the defendant
Seoul High Court Decision 72Na2934 delivered on March 23, 1973
The original judgment is reversed, and the case is remanded to the Seoul High Court.
The grounds of appeal by the plaintiff-appellant 00,000 won by the plaintiff-appellant are as follows: the court below acknowledged that there was an error in violation of the rules of evidence, incomplete deliberation, and the witness's testimony equivalent to 1,00,000 won at the market price at 1,20 Gau house and Gau House 1,000 won, and it is not reasonable to set off the negligence; and there is no evidence to acknowledge the defendant's liability for damages on the ground that there was no evidence to acknowledge the price of the testimony of 80,000 won at the market price at 1,00,000 won at 1,000, and there was no evidence to acknowledge the defendant's liability for damages on the ground that the court below did not recognize the defendant's liability for damages on the ground that even in the case above in this case, the court below did not ex officio deliberate and make a decision on the appropriate amount of damages.
The grounds of appeal by the defendant-appellant No. 1
The original building was the building that was voluntarily removed by the defendant, but was not only unreasonable that the court below recognized that the plaintiff was illegally removed, but also constructed without permission on the state-owned land, so at least the building was the name to be removed by the country, and as it was a building that was a part of the liability for damages to the country, the calculation of damages such as the court below is unfair.
However, as in the case of the court below, this building is located in the area where the land partition is adjusted, and if it is the original state-owned land or an unauthorized building, it is possible to issue or issue an order to suspend the use of the building site for a considerable period of time (see Supreme Court Decision 69Da1257 delivered on October 14, 69) under Article 58 of the Land Readjustment and Rearrangement Projects Act, and it can be transferred or removed under Article 40 of the same Act, and there may also be cases where the building can be removed or removed after the mooring is removed or the administrative vicarious execution can be sought on behalf of the State (see Supreme Court Decision 66Da1687 delivered on October 18, 18, 66). In addition, this building can be seen as a case where the Defendant could be removed voluntarily or forced to remove the building site without compensation for it (see Supreme Court Decision 66Da1687 delivered on October 18, 196).
Therefore, even if the related personnel removed the building in question without being equipped with due process, the damage suffered by the defendant is limited to the profit that the defendant could have used the building site as a house with illegal possession for a considerable period of time (the considerable period of time is that it is common before and after the last month) and the amount that is minor due to the degree of the profit from the recovery of the remaining property of the destroyed building.
Nevertheless, with respect to a house recognized by the lower court, the lower court cannot be deemed to have committed an unlawful act of setting the amount of damages at a large amount of damages, and on the other hand, the lower court may not render an unlawful judgment in violation of the original case (see, e.g., Supreme Court Decision 67Da1024, Sept. 26, 677) that rejected the Plaintiff’s claim entirely on the ground that there was no proof as to the amount of damages, even though the obligation to compensate for the damages was apparent by the original adjudication.
In addition, it is necessary to carefully examine and determine whether the case is based on the State Compensation Act.
Therefore, it is so decided as per Disposition by the assent of all participating judges.
Justices Kim Young-ju (Presiding Justice)