(영문) 창원지방법원 2015.4.7.선고 2014구합1596 판결

1. The Defendant’s disposition of imposition of KRW 35,807,880 of indemnity as of February 19, 2014 against the Plaintiff is revoked. 2. The costs of lawsuit are assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. B partnership (hereinafter referred to as “B partnership”) entered into a contract on October 19, 201 and concluded an additional agreement on construction of hot spring water supply facilities in accordance with the B tourist destination creation plan with the company C, D, E, Japan, 225,300, and monthly mountain (hereinafter referred to as “monthly mountain”) in order to implement a land readjustment and rearrangement project in B district, and the construction cost was settled as the land secured for development outlay.

B. The construction works, etc. under each of the above contracts, such as construction of one pump room and the management office (hereinafter referred to as the “instant building”) on the ground of 1,117.6m (hereinafter referred to as “the instant site”) of the F Miscellaneous land in Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, and the instant building was completed. The instant building site was replaced by the land to the Gyeongnam-gun on February 15, 2005.

C. On the ground that the Plaintiff used the instant building from February 19, 2009 to February 18, 2014, and occupied and used the instant site without permission, the Defendant imposed KRW 35,807,880 on February 19, 2014 (hereinafter “instant disposition”).

D. On April 30, 2014, the Plaintiff appealed to the instant disposition, and filed an administrative appeal with the Gyeonggi-do Administrative Appeals Commission, but the said commission rendered a ruling dismissing the Plaintiff’s claim.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 10, 11, 21, Eul evidence Nos. 1, 4, 9, 13, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked or restricted on the grounds that it is unlawful for the following reasons.

1) The instant building is a facility for the supply of hot spring water in the district B and has a public nature. Gyeongnam-do or the Defendant, while recognizing that the instant building site was being used in the supply of hot spring water from the time when it was replaced by Gyeongnam-do, or the instant building site was used in the supply of hot spring water, objection was not raised or the imposition of indemnity was not made. Thus, it should be deemed that the gratuitous use of the instant building site is implicitly approved.

2) Although the instant building was constructed in accordance with the design and drawings, the application for the initial building permit was rejected, but it was lawfully constructed under the implied permission of the Sgun Chang-gun, the statutory superficies that could oppose the Gyeongnam-do, the owner of the instant building, was established in respect of the instant building.

3) Since the ownership of the instant building was transferred from B to G (hereinafter referred to as “G”), the Plaintiff’s possession of the instant building site is merely possession of G’s representative director or liquidator, the owner of the instant building, and thus, the subject of the instant disposition.

Even if not, the Plaintiff succeeded to the possession of G with respect to the instant land that ought to be dissolved on or around December 3, 2012, and thus, the part of the instant disposition regarding the possession period from February 19, 2009 to December 3, 2012 is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether an implied approval for free use is granted

In light of the overall purport of the arguments in evidence Nos. 21, 21, 12, and 13, the defendant, on May 6, 2003, and August 12, 2003, filed a corrective order against B and H as to the violation of the Building Act, and filed a complaint against B and H on May 27, 2003. Accordingly, on July 13, 2003, B and H filed an application for a building permit and approval for use of the building of this case with the defendant on September 1, 2003, on the ground that the above application was rejected for the reason that the defendant could not return the above application for the reason that "the use of land for purposes other than public purposes of the local government in question is impossible for a long period of time," and even if the above unauthorized occupation and use of the public property is approved and managed for the procedural justice and management of the indemnity, the management agency may impose the indemnity after leaving the public property without permission.

In light of the legal principles, the source of revenue cannot be recognized (see, e.g., Supreme Court Decision 2005Du11463, Nov. 29, 2007) (see, e.g., Supreme Court Decisions 2005Du8375, Nov. 29, 2007; 2005Du8375, Nov. 29, 2007). In addition, the circumstance asserted by the Plaintiff is insufficient to acknowledge that the Plaintiff impliedly approved the occupation and use of the instant land by the Gyeongnam-do or the Defendant.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the legal superficies is established

Even if a new partition cadastral line due to the substitution of land and the land owned by the same person prior to the substitution, even if the owner of the land and the building on the ground, who lost ownership in the site of the building, due to the nature of the substitution of land, are different, it cannot be said that the owner of the building, who lost ownership in relation to the land of the building, obtains legal superficies for the building, or the owner of the land substituted by the land, becomes liable to bear the burden of legal superficies under customary law for the building (see, e.g., Supreme Court Decision 2001Da4101, May 8, 2001). As alleged by the Plaintiff, the instant building and the instant site were owned by the same person, as the Plaintiff claimed, and the instant building and the instant site were owned by the same person around February 15, 2005, even if the landowner changed as the land was owned by the ordinary south, it cannot be said

Therefore, the plaintiff's assertion on this part is without merit.

3) Whether the Plaintiff is an occupant of the instant site

A) Unless there exist special circumstances, it should be deemed that a building owner without authority on the land owned by another person gains profit equivalent to the rent for the land owned by another person without legal cause and thereby causes damage to the same amount. This also applies where a building or structure is owned by a structure other than a building without authority on the land owned by another person, barring any special circumstances. Meanwhile, even if a building or structure owner actually occupies or uses the building, etc., it cannot be deemed that the site of the building or structure is occupied and used, and the site of the building or structure is deemed that the owner of the building or structure occupies and uses it. This legal doctrine also applies where the owner of the building or structure is different from the owner of the building or the occupant or user of the building on the land owned by a local government (see Supreme Court Decision 2011Du10348, Jul. 24, 2014).

B) In light of the above legal principles, comprehensively taking into account the following circumstances that can be acknowledged by comprehensively taking account of the respective descriptions of evidence Nos. 14 and 20 as well as the purport of the entire pleadings, the evidence presented by the Defendant alone is insufficient to acknowledge that the Plaintiff occupied and used the instant site as the owner of the instant building, and there is no other evidence to acknowledge it. Thus, the instant disposition based on a different premise is unlawful.

(1) The instant building is unregistered real estate, and the B association, the contractor for the construction of hot spring water supply facilities, acquired the ownership in the original condition. The B association concluded a contract for the transfer of the ownership of the instant hot spring supply facilities, such as the instant building, to the monthly calculation. The C association concluded a contract for the transfer of all the ownership of the hot spring hole and hot spring supply facilities to G between G and G.

(2) The defendant asserts to the effect that since the contract date under the transfer contract between C and B ( April 1, 2005) is earlier than the contract date under the transfer contract between B and B ( August 19, 2005), G cannot accept the plaintiff's assertion that it is the owner of the building of this case. However, as alleged by the defendant, even if the transfer contract between B and B is null and void, the building of this case can be deemed as the ownership of B or the monthly transfer of ownership from it as seen above, and it cannot be deemed as the ownership of the plaintiff.

(3) On December 14, 2005, the ownership transfer registration was completed in the name of G on December 14, 2005, and on January 27, 201, around 201, at the auction procedure to exercise the right to collateral in the Changwon District Court Changwon District Court for the execution of the right to collateral in the land of this case, the ownership transfer registration was completed in the name of Maducheoncheon-gun hot Spring Co., Ltd. on January 20, 201 after the sale to the Savings Bank.

(4) The instant building is an accessory building attached to the instant hot spring building for the purpose of using hot spring water for the purpose of supplying hot spring water to the instant hot spring building. It is reasonable to deem that the instant building was owned by G as the ownership of the instant hot spring building was transferred to G on December 14, 2005 pursuant to Article 100(2) of the Civil Act that the instant buried water would be subject to the disposal of main water. Accordingly, in the above auction procedure, the instant building was not included in the object of auction on the ground that the instant building was located on the instant building owned by Gyeongnam-do, and thus, it seems that it existed separately from the instant hot spring building.

(5) The Plaintiff, as the representative director or liquidator of G, occupied and managed the instant building, which is G-owned, and the Plaintiff transferred to the F (Road Name Address, Gyeongnam-gun, Gyeongnam-gun) on November 24, 2008, which is the lot number of the instant site, and had his domicile up to now, and even if the Plaintiff received a usage fee for the supply of hot spring water from neighboring subcontractors, it is merely merely due to the circumstances that the Plaintiff actually occupied and used the instant building, and it is difficult to find the Plaintiff as the legal owner of the instant building solely on such circumstances.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.