208Guhap39233 Revocation of Disposition of Imposing indemnity

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Korea Asset Management Corporation

March 27, 2009

May 8, 2009

1. On July 3, 2008, the part of the Defendant’s imposition of indemnity amounting to KRW 549, 460, and 142 against the Plaintiff, which exceeds KRW 314,05,082, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 55% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The Defendant’s disposition of imposing indemnity amounting to KRW 549, 460, 142 against the Plaintiff on July 3, 2008 shall be revoked.

1. Details of the disposition;

A. Buildings Nos. 1, 2, and 3 (hereinafter referred to as "each land of this case") indicated in the separate sheet Nos. 1, 2, and 3 on the same list on both the land and the third (hereinafter referred to as "the building of this case") were owned by ○○○. Since Park○ paid in kind each land and building of this case to the State around June 1998, it was difficult for the State to own it. On November 3, 1998, the Defendant was entrusted by the Minister of Finance and Economy with the affairs concerning the management and disposition of each land of this case and buildings.

B. From May 26, 1997, the Plaintiff operated a motor vehicle maintenance plant in Dongdaemun-gu Seoul Metropolitan Government ○○○ and its two above-ground buildings adjoining each of the instant land and buildings.

C. On December 5, 2001, the Defendant notified the Plaintiff of the imposition of indemnity amounting to KRW 657,692,670 on the ground that “the Plaintiff occupied and used each of the instant land and buildings from August 31, 1998 to December 4, 2001 without permission,” and requested the Plaintiff to voluntarily express each of the instant land and buildings. The Plaintiff raised an objection and accepted it, and on April 29, 2002, the Defendant imposed indemnity amounting to KRW 917 meters on the Plaintiff on the ground that “the Plaintiff occupied and used only 917 meters of the parking site among the instant land and buildings during the said period without permission.”

D. Thereafter, on October 10, 2002, the Defendant calculated indemnity amounting to KRW 690,477,265, and calculated indemnity amounting to KRW 95,620,00,000,000 for the Plaintiff’s compensation amounting to KRW 95,620,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00

E. On December 27, 2002, the Plaintiff filed a lawsuit against the Defendant with the Seoul Administrative Court 2002Guhap○○○○○○○○ on October 10, 2002, and the Seoul Administrative Court rendered a judgment revoking the above additional imposition of indemnity on July 8, 2003. However, the Seoul Administrative Court rendered a judgment revoking the above additional imposition of indemnity on August 8, 2003. However, on August 25, 2005, the Seoul High Court rendered a judgment revoking the above additional imposition of indemnity exceeding KRW 314,05,082 among the above additional imposition of indemnity, and the above appellate judgment became final and conclusive by the Supreme Court on May 15, 2008.

F. On July 3, 2008, the Defendant again issued the instant disposition to the Plaintiff, stating that “The pertinent additional indemnity amounting to KRW 314,05,082,00,000,000,000,000,000 for overdue interest amounting to the number of overdue days from December 9, 2002, which was the due date for payment of the said additional indemnity, was added to KRW 235,40,000,00 in total, KRW 549,460,142,00,000.”

【Unsatisfied Facts, Gap evidence 1-1, 2, and Gap evidence 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

- The Plaintiff asserts that the instant disposition should be revoked because it is unlawful for the following reasons.

1) The instant disposition was made only on July 3, 2008 when five years have passed since the Defendant imposed the said additional indemnity on the Plaintiff on October 10, 202, which was the period of extinctive prescription.

2) In the course of rendering the instant disposition to the Plaintiff, the Defendant did not expressly state the grounds for calculation of the indemnity and late payment charge.

3) Notwithstanding the fact that the Defendant’s disposition of imposing additional indemnity on October 10, 2002, which was the first disposition of imposing additional indemnity, cannot be seen as a justifiable disposition of imposition because the amount is excessive, the Defendant calculated the late payment due date of the additional indemnity on the premise that it was the disposition of imposing additional indemnity, and imposed the late payment charge on the Plaintiff by calculating the late payment due date from the original payment date of the additional indemnity.

4) According to Article 44(3) of the Enforcement Decree of the State Property Act, the period between the overdue period subject to the imposition of late payment charges shall not exceed 60 months. However, the defendant shall not exceed 2,033 days.

By calculating the arrears corresponding to the Plaintiff, the disposition of this case was imposed on the Plaintiff with excessive arrears.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

(c) Determination:

1) As to the plaintiff's first argument

According to the purport of Eul evidence No. 1 and the whole pleadings, since the Minister of Finance and Economy, the managing authority of each of the lands and buildings of this case, could recognize the fact that he/she forced the plaintiff to drive the 02 OE No. 02 OE No. 1 owned by the plaintiff on September 7, 2005, the defendant's right to impose indemnity against the plaintiff was suspended at that time. Thus, the defendant's disposition of this case, which was made on July 3, 2008 before five years elapse from the above seizure date, was lawful since it was made before the expiration of the extinctive prescription period.

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

2) As to the second argument by the Plaintiff

A) It is clear that Article 56(5) of the Enforcement Decree of the State Property Act applies mutatis mutandis to Article 31(2) through (4) of the Enforcement Decree of the State Property Act, which is subject to the imposition and collection of indemnity, matters to be specified in the notice for payment, and procedural provisions such as payment due date, to the procedures for imposing additional dues. Thus, in imposing indemnity against an unauthorized occupant of State property, if the disposition authority did not clarify the grounds for calculation in the notice for payment due and at least prior notice in light of the purport of the Enforcement Decree of the above Enforcement Decree, even if certain matters are specified in the notice for payment, and the legitimacy of the provision thereof, etc., in imposing indemnity against the unauthorized occupant of State property, the disposition for imposition of indemnity is unlawful (see Supreme Court Decision 200Du86, Dec. 14, 2001).

B) In light of the above legal principles, the following circumstances are i.e., ① the principal of indemnity amounting to KRW 314,05,082 on the instant disposition, i.e., the Plaintiff had been aware of the aforementioned Seoul High Court Decision 2003Nu15340, which had already been progress with the Defendant prior to the instant disposition, and the Defendant again stated that the above principal amount of indemnity was determined by the above judgment as 235, 405,060 won, i.e., the amount of late payment charges of KRW 20,000,000, 2000,000,000 won, 200,000 won, 30,000 won, 40,000 won, 1,000,000 won, 20,000 won, 4,000,000 won, 20,000 won, 4,05,000 won.

C) Therefore, the Plaintiff’s assertion on this part is with merit within the scope of recognition above.

3. Conclusion

Therefore, without examining the remaining arguments of the plaintiff related to the late payment charge of the instant disposition, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Lee Dong-gu

Judge Lee Jin-soo

Judge Ho-ho

Related Acts and subordinate statutes

【State Property Act】

Article 51 (Collection of Compensation Money)

(1) State property shall not be leased, used, or permitted to profit from State property under this Act or other Acts.

person who has occupied, used, or profit from, the property (after the expiration of the period of loan, use, or profit-making);

Any person who continues to possess, use, or benefit from any State property without obtaining permission, etc. for profit-making (including any person who has continuously occupied, used, or benefit therefrom).

equivalent to 120/100 of the loan or usage fee of the property in question under the conditions as prescribed by the Presidential Decree.

Any indemnity shall be collected: Provided, That in cases falling under any of the following subparagraphs, the indemnity shall not be collected:

1. A person who has acquired rights by paying a reasonable price in reliance on a titleholder on the registry or other public record as a legitimate owner;

(including his successor or his successor) after acquiring the property, is proved to be state property and returned to the State.

applicable in case of

2. Where the State or local governments occupy or possess any State property for a certain period of time due to unavoidable reasons, such as countermeasures against disasters;

In the case of profit-making;

(2) When the indemnity referred to in paragraph (1) is not paid within the time limit, such indemnity shall be prescribed by Presidential Decree.

The arrears may be collected.

[Enforcement Decree of the State Property Act]

Article 31 (Additional Dues)

(2) The additional dues as referred to in paragraph (1) shall be delegated to the management agency concerned or pursuant to Articles 21 and 32 (3) of the Act.

shall be collected by the consignee.

(3) When additional dues are collected under paragraph (1), the amount, time limit for payment, place for payment and grounds for calculation of such additional dues shall be specified.

notice shall be given in writing.

(4) The deadline for payment under paragraph (3) shall be within 60 days from the date of notification.

Article 44 (Time of Payment of Sales Price)

(3) Where proceeds from sale have not been paid within the payment deadline under Article 40 of the Act, fifteen days after the lapse of such payment deadline.

For the following amounts (excluding interest on installment payments, in cases of installment payments):

A notice of payment shall be given within a specified period not exceeding 15 days with a late payment charge specified. In such cases, the notice shall be given within the notified period.

When the proceeds from sale and arrears have not been paid, a payment shall be notified again within two times, and the last payment shall be notified.

The time limit for payment by notice shall be within 3 months from the date of the notice of payment under the former part, and the arrears shall be made.

The period of arrears subject to the imposition of a charge shall not exceed 60 months from the date on which the payment period under Article 40 of the Act elapses.

(c)

1. Where the period in arrear is less than one month: 12 percent per annum;

2. Where the period in arrear is not less than one month to less than three months: 13 percent per annum;

3. Where the period in arrear is not less than three months but less than six months: 14 percent per annum;

4. Where the period in arrear is not less than 6 months: 15 percent per annum.

(4) Where the amount notified within the period referred to in the former part of paragraph (3) is paid, it shall be paid from the date of notification.

No late payment charge until the due date shall be collected.

Article 56 (Compensation)

(1) An indemnity under Article 51 of the Act shall be made pursuant to Article 25-2 of the Act and Articles 26 (1) through (5) and 27-2 of this Decree.

by means of the period in which the property is occupied in the amount equivalent to 120/100 of the loan charges or usage fees calculated under the provisions of the Act.

(1) If the period of occupation exceeds one fiscal year, the change calculated for each fiscal year;

The sum of prize money shall be the sum of prize money.

(5) With respect to the collection of indemnities referred to in paragraphs (1) and (2), Articles 31 (2) through (4), and 44 (3) shall be applicable.

The provisions of paragraphs (1) and (4) shall apply mutatis mutandis. The end.