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(영문) 대법원 2014.07.10 2012두23358
변상금부과처분취소
Text

The judgment below is reversed, and the case is remanded to the Daegu High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The judgment of the court below

A. The lower court determined that, based on Article 23(4) of the former Framework Act on Railroad Industry Development (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same), even if the Defendant and the Minister of Land, Transport and Maritime Affairs entrusted the management of general property under Article 42(1) to the head of a central government agency under Article 6 of the National Finance Act, and the person entrusted with the management of general property pursuant to Article 42(1) of the former State Property Act, are not entitled to impose and collect indemnity, the Defendant’s disposition of the instant State Property Act is unlawful, even if the Defendant and the Minister of Land, Transport and Maritime Affairs entrusted the management of general railroad facilities (hereinafter “instant entrustment contract”), including the authority to impose indemnity for the instant land under Article 42(1) of the former State Property Act.

B. The court below has a legitimate authority to impose indemnity on the defendant in a constructive judgment.

Even if the instant land owned by the Republic of Korea was used as the railway site of the Gu Daegu Line, but the Mayor of the Gyeongbuk-do around November 18, 1974, after the Gu Daegu Line was closed, the Mayor of the Gyeong Daegu-si City decided urban planning road and the cadastral approval on the land located in Daegu-si, including the instant land, was made (No. 255 of the Gyeongbuk-do Notice), and the Daegu-si Mayor accordingly implemented the urban planning project.

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