In a case where an inspector holding State-designated cultural heritage has set up a ticket at the entrance of a mountain trails and has collected uniformly the admission fee for cultural heritage from visitors who have no intention to view the cultural heritage, the case holding that the inspector's return of unjust enrichment is recognized.

In a case where an inspector holding State-designated cultural heritage has set up a ticket at the entrance of a temple, not the entrance of the temple, and has uniformly collected the admission fee for cultural heritage from visitors who have no intention to view the cultural heritage, the case holding that, on the condition that a person eligible to be exempted from the admission fee for cultural heritage under the municipal ordinances of the local government can not claim the return of unjust enrichment because it constitutes a non-payment under Article 742 of the Civil Act, even if he/she can not claim the return of unjust enrichment.

Article 44(1) of the Cultural Heritage Protection Act, Articles 741, 742 of the Civil Act, Article 8(2)1 of the Ordinance on the Collection of Admission Fees and Facility User Fees for the Dobcheon-si.

Plaintiff 1 and 14 others (Attorney Kim Won-won, Counsel for the plaintiff-appellant)

The Korea Non-U.S. C&C Cancer (Law Firm Hoh, Attorneys Kim Yong-deok, Counsel for the plaintiff-appellant)

April 21, 2008

1. Each of the plaintiffs' claims is dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs 1,200 won each and 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

1. Determination as to the cause of claim

A. Facts of recognition

(1) For the period from March 28, 2007 to April 13, 2007, the Plaintiffs were all citizens of the Dongducheon-si, and calculated the required premium at the same time as Dongducheon-si, Hocheon-si, and each of 2,000 won at the ticket office installed at the entrance at the required mountain, and purchased admission tickets.

(2) The Defendant temple is a horse shed of the Korean Chocheon-si, Yancheon-si, 100 square meters of land for religion, which owns approximately 1.2 km of land for religion ( approximately 95% of the necessary mountain site). At the entrance of the required mountain, the Defendant temple installed a ticket office (it refers to a ticket office in which the Plaintiff purchased admission tickets, such as paragraph (a); hereinafter referred to as “market office”) at a place away from approximately 1.2 km from the required mountain site, and collects KRW 800 of the admission fees delegated by the Dongducheon-si and KRW 1,200 of the cultural heritage admission fees, together with the admission fees of KRW 1,200, the total admission fees of KRW 1,200.

(3) In addition to the courses passing through the required management office, ticket office, ticket office, daily order, Defendant Inspection, etc., it is not necessarily required to undergo Defendant Inspection, such as the above management office, ticket office, one ticket office, one order, Gu ticket, public bond, bond class, boom, burg, white burg, white burg, white burg, new ticket office, participation expenses, and management office, etc., and the Plaintiffs completed burging using the above courses which did not pass the Defendant Inspection at all at the time of the above paragraph.

(4) The Defendant Inspection consists of ju, Samsung, Samsung, Na, Il, Man, Magam, and Ho bonds, etc. The cultural heritage owned by the Defendant Inspection is open to the public by means of the installation of Magro, Samsung, Magdong, Magdong, and Magro, which are designated by the Defendant Inspection as 1211, and by means of installation of Magro, etc. of Magro.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3, 7, Eul evidence, and Eul evidence 9, each fact inquiry result of this court's fact inquiry, the purport of the whole pleadings

B. The occurrence of an obligation to return unjust enrichment

(1) Article 44(1) of the Cultural Heritage Protection Act provides that the grounds for collecting cultural heritage admission fees from required mountain visitors along with the admission fees shall be as well as that for collecting cultural heritage admission fees from required mountain visitors, and that “where cultural heritage is disclosed to the public, an admission fee may be collected from visitors.”

(2) Meanwhile, as seen in the above basic facts, it is presumed that: (a) as to the cultural heritage owned by the Defendant Inspection, the Defendant Inspection is not necessarily required to undergo the Defendant Inspection; (b) the cultural heritage owned by the Defendant Inspection is open to the public inside the juries, a part of the building; and (c) according to the overall purport of the statement and pleading as to the evidence No. A8, it is recognized that the Defendant Inspection passed only a ticket, and there is a considerable distance from the ticket; (b) comprehensively considering these circumstances, it is difficult to find a different method to collect the above cultural heritage by distinguishing it from the Plaintiffs, such as viewing the cultural heritage owned by the Defendant Inspection by moving the location of the ticket to the entrance of the Defendant Inspection, or passing through the Defendant Inspection at least through the Defendant Inspection. Accordingly, it is difficult to find out the legal basis for collecting the amount of the above cultural heritage from the Plaintiffs, including the Plaintiffs’ 10 meters away from the entrance of the requirements of the Inspection.

2. Judgment as to the defendant's defense of non-performance of debt

A. According to the statements in Gap evidence Nos. 7 and Eul evidence Nos. 15-1 and 2, pursuant to Article 8 (2) 1 of the Ordinance on the Collection of Admission Fees and Facility Use Fees (hereinafter the "Ordinance of this case") as amended on May 1, 2003, it is recognized that a certificate issued by a public agency and attached a photograph issued by the public agency is exempted from the entrance fees of required mountain tourist destinations at the entrance of a ticket office, and that the above-mentioned wording is attached to the entrance of a ticket office.

B. Thus, the plaintiffs, even though they are well aware of the circumstances subject to exemption from admission tickets, appears to have caused the instant lawsuit after purchasing admission tickets. This constitutes a non-payment of debt under Article 742 of the Civil Act, i.e., a case where repayment is performed with knowledge of non-performance, and thus, it is not possible to seek the return of unjust enrichment.

C. As to this, the Plaintiffs, other than Plaintiff 6, did not know the fact that they were exempt from admission fees to the required mountain tourist destination in accordance with the instant ordinances, and even if they were aware of their knowledge, they did not have an identification card at the time of the purchase of admission tickets, and thus, they asserted that the provision on repayment of the above non-performing loans is not applicable, since they constitute “the repayment is forced, or it is inevitable to avoid de facto damage caused by the refusal of payment,” since they were to purchase admission tickets.

However, it is difficult to accept the argument that the plaintiffs, other than plaintiffs 6, did not know of such circumstances, considering the fact that four years have passed since the Ordinance was in force, and that the contents of free admission at the entrance of the ticket office were detailed guidance, etc., it is difficult to accept the argument that the plaintiffs, other than plaintiffs 6, did not enjoy the benefit of free admission because they did not have an identification card at the time. There is no evidence to acknowledge that there

Thus, the plaintiffs cannot claim the return of the admission fee for cultural heritage among the admission fee for required mountain resorts to the defendant as unjust enrichment.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed for all reasons.

Judges Lee Jin-hwa