Korea Railroad Corporation (Law Firm LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Republic of Korea (Law Firm Squa, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

May 3, 2016

1. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 7,805,791,690 won with 6% interest per annum from August 16, 2013 to June 14, 2016, and 15% interest per annum from the next day to the date of full payment.

2. The Plaintiff (Counterclaim Defendant)’s principal claim and the remainder of the Defendant (Counterclaim Plaintiff) claim are dismissed, respectively.

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

In this lawsuit: Around December 31, 2004, 2004; January 25, 2010; and January 201, 201, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)’s obligation to return KRW 7,805,791,690 on the consignment contract for the maintenance and repair of each general railroad facility is not nonexistent.

Counterclaim: The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 7,805,791,690 won with 6% per annum from August 16, 2013 to the service date of a duplicate of the counterclaim of this case, and 15% per annum from the next day to the day of complete payment.

The main lawsuit and counterclaim shall also be deemed to have been filed.

1. Basic facts

(a) The structural reform of the railroad industry and the details of the establishment of plaintiff;

1) On July 29, 2003, the Defendant enacted the Framework Act on Railroad Industry Development (hereinafter “Framework Act”) and promoted the structural reform of the railroad industry separating the railroad facility from the railroad operation sector in order to strengthen the competitiveness of the railroad industry and to create a foundation for development.

2) On January 1, 2004, the Defendant established the Korea Rail Network Authority (hereinafter referred to as the “Korea Rail Network Authority”) by combining and combining the relevant organizations of the Korea Railroad and the Korea High-Speed Railroad Facility Authority (hereinafter referred to as the “Korea Rail Network Authority”) in order to systematically and efficiently perform the duties related to “railroad facilities”. On January 1, 2005, the Defendant converted the relevant organizations of the Korea Railroad Authority and the Korea High-Speed Rail Construction Authority to enhance the professionalism and efficiency of the projects regarding “railroad operation.”

B. The contractual relationship between the Plaintiff and the Defendant and the Facilities Corporation

1) An entrustment contract for the management of general railroad facility assets between the defendant and the Korea Railroad Corporation

1) On May 20, 2009, the Minister of Land, Infrastructure and Transport entered into a contract with the Korea Facilities Corporation to entrust the management of general railroad facility assets to the Korea Facilities Corporation by setting the period from January 1, 2009 to December 31, 2013. The main contents are as follows:

(2) Notwithstanding the provisions of Article 3 of the Table contained in the main sentence, the Minister of Land, Infrastructure and Transport shall require the Korea Railroad Corporation to perform the following affairs (hereinafter referred to as the "entrusted affairs"), and the Corporation shall be responsible for the overall management of railroad assets; 1. (a) Submission of a management and disposal plan and a report on the current status of execution (previous Article 12) under Article 9 of the Act; (f) Entrustment of the management of State-owned property under Article 29 of the Act (previous Article 21-2). (1) In cases where the Korea Railroad Corporation intends to use the entrusted property under Article 3 of the Framework Act for the maintenance and repair of railroad facilities or for the management of the entrusted property under Article 3 of the Act, such as entrustment fees for the use of railroad facilities and platforms without compensation, the Corporation may permit the trustee to use the entrusted property under Article 28 of the Framework Act for the management of railroad facilities or take measures prescribed in subparagraph 3 (a) (excluding permission for the use of the entrusted property under paragraph (1) of the same Article):

2) A contract for the maintenance and repair of general railroad facilities between the defendant and the plaintiff

A) On December 31, 2004, the Minister of Land, Infrastructure and Transport entered into a contract with the Korea National Railroad to entrust the maintenance and repair of general railroad facilities to the Korea National Railroad by setting the term of the entrustment contract from January 1, 2005 to December 31, 2009. The said contract was succeeded to the Plaintiff pursuant to Article 6(2) of the Addenda to the Korea National Railroad Corporation Act ( December 31, 2003) and Article 16(2) of the said contract. The main contents are as follows.

(2) The Minister of Land, Infrastructure and Transport shall prepare and submit to the Minister of Land, Infrastructure and Transport the relevant data and details of maintenance and repair expenses necessary for establishing a plan for the maintenance and repair of the following year by March of each year, and notify the Minister of Land, Infrastructure and Transport thereof. (2) The Minister of Land, Infrastructure and Transport shall prepare and submit a plan for the maintenance and repair of the following year (hereinafter referred to as the “execution plan”) to the Minister of Land, Infrastructure and Transport within budgetary limits notified under paragraph (1). (1) The Minister shall prepare and submit a plan for the execution of maintenance and repair (hereinafter referred to as the “execution plan”) to the Minister of Land, Infrastructure and Transport within the scope of budget notified under paragraph (1). (2) The Minister shall prepare and submit the balance of expenses to be paid according to the entrustment of maintenance and repair works to the Minister of Land, Infrastructure and Transport (hereinafter referred to as the “management expenses”) after consultation with the Minister of Land, Infrastructure and Transport and Transport each quarter.

B) After that, the Minister of Land, Infrastructure and Transport entered into a maintenance and repair contract between the Plaintiff on January 25, 201 and the term of the entrustment contract from January 1, 2010 to December 31, 2012, and entered into a maintenance and repair contract between January 1, 201 and December 31, 201 with the term of the entrustment contract from January 1, 2011 to December 31, 201. The terms related to the instant case are as follows.

(4) The Minister of Land, Infrastructure and Transport shall prepare and submit to the Minister of Land, Infrastructure and Transport a statement of accounts concerning entrusted affairs in the year 2010 The scope of the Minister of Land, Infrastructure and Transport entrusted to the Railroad Corporation under the provisions of Article 2 (Entrustment Scope) of the Act on Contracts for Maintenance and Repair of Railroad Facilities (Attachment Table) shall be prescribed by the Ordinance of the Ministry of Land, Infrastructure and Transport as the duties of maintenance and repair (including management of defects) of tracks, buildings, electric power, signal, information and communication, soundproof walls, and railroad traffic control facilities (hereinafter referred to as "railroad facilities"). The former contract shall be changed to Article 9 (Settlement and Settlement of Maintenance and Repair Costs).

3) A contract for the use of a general railroad, etc. between the Plaintiff, the Defendant, and the Korea Facilities Corporation

A) On December 31, 2004, the Minister of Land, Infrastructure and Transport entered into a contract with the Korea National Railroad to use general railroad facilities, including tracks, by setting the period of use from January 1, 2005 to December 31, 2005. The said contract was succeeded to the Plaintiff pursuant to Article 6 (2) of the Addenda to the Railroad Act ( December 31, 2003) and Article 1 of the Addenda to the contract. The main contents are as follows.

Article 2 (Scope of Application) of the Table contained in the main text of this Agreement shall be limited to cases where the Korea Railroad Agency intends to use the railroad facilities owned by the State (hereinafter referred to as “railroad facilities, etc.”) excluding facilities for which the right to manage railroad facilities has been established under Article 26 of the Framework Act among railroad facilities falling under subparagraph 2 (a) through (d) of Article 3 of the Framework Act for passenger or cargo transportation. The facilities subject to this Agreement under Article 5 (Facilities) shall be those subject to the installation of lines, etc. among the railroad facilities listed in attached Table 1.

B) On December 30, 2005, the Plaintiff entered into a contract for the use of lines with the Korea Facilities Corporation by setting the period of use from January 1, 2006 to December 31, 2008. The amended provisions relating to the previous contract are as follows.

The maintenance and repair of tracks, etc. subject to this contract under Article 7 (Maintenance and Repair) of the table included in the main text shall be governed by the "contract for the maintenance and repair of general railroad facilities". Article 8 (Entrustment Contract for the Maintenance and Repair of Railroad Facilities) ① (2) The Plaintiff shall pay fees for the tracks, etc. provided by the Agency for Facilities, etc.

4) Permission for free use and approval for sublease to the Plaintiff of the Facility Corporation

A) Meanwhile, on January 12, 2005, the Plaintiff (Seoul Metropolitan Area Headquarters) obtained a permit for free use and profit-making and approval for sublease of part of the assets of the railroad facilities from January 12, 2005 to December 2012 in relation to passenger convenience facilities (limited to a light line Non-Party 11 improvement, 154 external list) installed in platforms, underground stations, connecting passages, etc. among the facilities assets managed by the Korea Infrastructure Corporation, for five years, and obtained a permit for free use and profit-making and approval for sublease of part of the assets of the railroad facilities from 2005 to 2012.

B) The conditions attached to the permission of gratuitous use and the approval of sub-lease are as follows.

The conditions of permission for use of the local headquarters in the table year included in the main sentence of the same year are nonexistent (Evidence 8-1, No. 21-1, No. 21-1, A), with the care of a good manager in good faith in South-Nam, and the remuneration necessary for the use of the permitted property shall be borne (No. 8-2, No. 22-1) by the manager of good faith in 2006 (No. 8-2, No. 22-1), and the responsibility for the preservation of the permitted property shall be met and the remuneration necessary for the use thereof shall be borne (Evidence 23-1, No. 2007) with the care of a good manager of good faith in the Seoul metropolitan area (Evidence 4-1, No. 2007), and the remuneration necessary for the preservation of the permitted property shall be borne with the care of a good manager of good faith, such as from 208 to 2012 (Evidence 4-1, No. 17).

Note 2).

5) When arranging the above contractual relationship between the Plaintiff, the Defendant, and the Korea Facility Corporation, the following is as follows:

A person shall be appointed.

A) The general railroad facility asset management contract between the defendant and the facility corporation is called “instant asset management contract.”

B) The maintenance contract between the Plaintiff and the Defendant for general railroad facilities is “the instant maintenance and repair contract.”

C) The contract on the use of the line, etc. between the Plaintiff and the Facilities Corporation is called the “instant contract on the use of line tracks, etc.”; the facilities subject to the contract are called the “line, etc.”; the Korea Facilities Corporation grants permission for free use of the platform, etc. against the Plaintiff, “the instant permission for use”; and “the platform, etc.” refers to the subject facilities. The conditions attached to the instant permission for use of line, etc. as seen earlier are “the instant permission conditions”.

C. Conclusion of maintenance and repair contracts between the Plaintiff and the Facilities Corporation after 2013

1) On January 9, 2013, the Ministry of Land, Infrastructure and Transport came to know that the Plaintiff and the Korea Facilities Corporation concluded a general railroad maintenance contract with the Plaintiff and the Korea Facilities Corporation to implement maintenance and repair work in accordance with the policy “measures to improve the management, maintenance, and repair of general railroad facilities.”

2) Accordingly, the Plaintiff entered into a contract for maintenance and repair between March 20, 2013 and the Korea Facilities Corporation, setting the term of the entrustment contract from January 1, 2013 to December 31, 2015. Of them, the part relating to the instant case is as follows.

Article 2 (1) (Scope of Entrustment) (1) The scope of entrustment by the Corporation to the Plaintiff shall be the duties of maintaining and repairing (including managing defects) lines, buildings, electric power, signal, information and communications, soundproof walls, railroad traffic control facilities, etc. (hereinafter referred to as "railroad facilities") of the State-owned railroads: Provided, That the same shall not apply to platforms, connecting passages, underground stations, and buildings related to railroad facilities, which are leased without compensation to the Plaintiff. (1) The project cost required for entrusted projects (hereinafter referred to as "entrusted project cost") shall be the fixed amount in the relevant year (excluding the input tax amount that the Plaintiff is entitled to receive a deduction), and the Corporation shall annually notify the Plaintiff in a separate document. (2) The entrusted project cost shall be divided into the portion to be covered by the State-owned railroad (hereinafter referred to as "State-owned portion") and the portion to be covered by the usage fee of the railroad facilities (hereinafter referred to as "maintenance and repair plan").

D. Defendant’s claim for the balance of execution of the instant case

1) On August 16, 2013, the Defendant: (a) notified the Plaintiff of the purport that “The Plaintiff is obligated to return KRW 7,805,799 of the cost of maintenance and repair spent on platform platforms, etc. for which the instant permission for use was granted from the facility Corporation; (b) requested the Plaintiff to pay KRW 7,805,791,690 (hereinafter “the instant execution balance”; and (c) on August 26, 2013, KRW 7,805,791,690 out of the consignment cost paid under the instant contract for maintenance and repair (hereinafter “instant execution balance”); and (d) requested the Plaintiff to pay the individual item by September 16, 2013.

2) The business year, business contents, classification of facilities, and the amount of execution of each of the instant objects of execution are as stated in the separate sheet of the amount to be recovered in the column of "main sheet".

[Ground of recognition] Facts without dispute, Gap evidence 2 through 8, Eul evidence 5, 9, 16, 17, 20 through 39 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

1) The Plaintiff paid the instant usage fee in accordance with the instant contract and used the instant execution subject matter. Since the instant contract for the use of the tracks provides that the said contract is subject to the instant maintenance and repair contract concerning the obligation to maintain and repair tracks, etc., the instant execution subject matter constitutes a facility subject to the instant maintenance and repair contract under which the Defendant bears the duty to repair and manage the tracks, etc. However, given that the Plaintiff received the entrustment fee concerning the instant execution subject matter in accordance with the instant maintenance and repair contract, the Plaintiff cannot be deemed as unjust enrichment.

2) Even if the subject of the instant permission for use is subject to the Plaintiff’s obligation to maintain and repair, the Plaintiff’s obligation to maintain and repair is limited to the repair, repair, and daily management obligation for the purpose of maintaining passive phenomena. Therefore, the Defendant is entitled to exercise the right to claim restitution of unjust enrichment only with respect to the remainder of the execution balance of the instant case, excluding the expenses paid for the active maintenance and improvement of the subject of the instant execution and the expenses paid to facilities not subject to the instant permission for use. Therefore, the Plaintiff is liable to return only the remainder of the execution balance, excluding the expenses paid for the active maintenance and improvement of the subject of the instant execution, and the expenses paid to the facilities not subject to the instant permission for use. Therefore, the Plaintiff is liable to return unjust enrichment out of the amount of the execution cost of the Defendant’s claim for unjust entrustment (hereinafter “unfair entrustment cost”).

3) In addition, the Defendant’s claim for return of unjust enrichment has expired with respect to the part where the five-year prescription has lapsed pursuant to Article 96(1) of the National Finance Act.

B. Defendant

The subject matter of the instant execution falls under the subject matter of the instant permission for use for which the Plaintiff bears the duty of maintenance and repair. However, as the Plaintiff used the consignment expenses received under the instant maintenance and repair contract for the subject matter of the instant execution to obtain profits from the balance of the instant execution without any legal ground and incurred considerable damage to the Defendant, the Plaintiff is obligated to return KRW 23,274,371,268, and the amount of interest accrued until August 16, 2013, including interest of KRW 1,426,07,07,00,448,340, and the sum of KRW 24,70,70,44,656,641, 799, 705,7791,7791,600, 600, which is scheduled to settle the claim for use fees under the instant line use contract between the Plaintiff and the Corporation (part of the claim).

3. Determination

A. As to the subject of cost-bearing on the subject of the instant enforcement

1) The plaintiff asserts that the defendant should bear the expenses for the repair and management of the subject of the execution of this case in accordance with the maintenance contract of this case, while the defendant asserts that the plaintiff should bear the expenses according to the terms and conditions of the permission of this case, so we examine who is the subject of the cost-bearing concerning the subject

2) As seen above, the instant maintenance and repair contract covers “railroad lines for railroad facilities owned by the State, buildings, electric power, electric power power, signal, information and communications, soundproof walls, and railroad traffic control facilities, etc.” The instant maintenance and repair contract consists of “surfs, connecting passages, connecting passages, power facilities, electric power station facilities, electric trains facilities, underground stations, telecommunications facilities, facilities, buildings, station facilities, and landscaping.” As such, some of the facilities subject to the instant maintenance and repair contract (electric power facilities, electric trains facilities, communications facilities, etc.) are deemed to fall under the facilities subject to the instant maintenance and repair contract.

3) However, in light of the following circumstances, even if part of the enforcement target of the instant case constitutes a facility subject to the instant maintenance and repair contract, it is difficult to deem that the Defendant bears the duty to repair and manage the instant enforcement target solely on such circumstance.

A) Of the instant execution subject, “a platform, connecting passage, station platform, underground station, and facility asset building” constitutes a facility for which the Plaintiff obtained the instant permission from the Korea Facility Corporation. The Plaintiff is obligated to preserve the permitted property with the care of a good manager instead of using the platform, etc. free of charge pursuant to the instant permission of use, and to repair necessary matters for the use thereof.

B) Since the instant contract provides that “limited to cases where the relevant line, etc. is used for the purpose of passengers or cargo transport, it shall be limited to the use of the line, etc. for the purpose of transporting passengers or cargo.” Therefore, in cases where the Plaintiff uses the facilities subject to the instant contract for the use of the line, and the maintenance and repair contract in excess of the scope of the purpose of passengers or cargo transport, it shall be in principle the commercial use pursuant to Article 32 of the State Property Act. However, the Korea Railroad Corporation provides that the Plaintiff may gratuitously use State-owned property for the purpose of efficiently performing the Plaintiff’s business (Article 14(1) of the Korea Railroad Corporation Act), and that the Plaintiff may enjoy profits, such as sub-lease fees, etc. by sub-lease state-owned property used by the Plaintiff without compensation (Article 15(1) of the same Act). Therefore, it is reasonable to deem that the Plaintiff, an employer, should be borne by the Plaintiff.

C) As to this, the Plaintiff asserts that the Plaintiff’s duty of maintenance and management under the instant permission for use is limited to the duty of repair, repair, and daily management for the purpose of maintaining a passive phenomenon, and that the expenses incurred in the improvement of facilities beyond such scope constitute the expenses to be borne by the Defendant under the instant permission for use. However, as seen later, the Plaintiff’s assertion is without merit since there is no ground to interpret the Plaintiff’s duty of maintenance and management under the instant permission for use

B. Regarding the scope of expenses borne by the Plaintiff

1) Since there is a dispute between the plaintiff and the defendant as to the scope of expenses to be borne for the instant execution subject to the execution of the instant case, the Plaintiff submitted the data that reflects the items and amount of the commission fee of the Defendant’s assertion 23,274,371,268, based on the evidence No. 16, and thus, the validity of the items and amount of the commission fee executed on the instant execution subject to the execution of the instant case should be examined based on the above data.

2) Whether improvement costs are included

The Plaintiff asserts that the expenses incurred in the “construction of platform safety fences, rubber safety launch boards, the construction of the platform front package and the disabled guide block (new construction), the purchase of materials for the connecting passage and the extension of platform platforms (new construction), the new construction of platform customer home waiting rooms, the new construction of platform platforms, and the improvement of mechanical devices within the history (which falls under the “improvement” in the classification of the grounds for exclusion “judgment” in the attached collection sheet) are the improvement expenses beyond the scope of preservation and management of the pertinent permitted property. As such, the Plaintiff asserts that the expenses that the Defendant should bear according to the instant permit terms and conditions, not according to the instant repair contract, are not the expenses that the Plaintiff should bear.

In addition, Article 3 subparag. 7 of the Framework Act defines “maintenance and repair of railroad facilities” as “ordinary activities for inspection, repair, replacement, improvement, etc. for the purpose of maintaining the present condition and improving the performance of existing railroad facilities,” and there is no ground to conclude that “improvement” is excluded from the duty to maintain and repair the railroad facilities. In addition, in addition, the term of “management” generally includes improvement activities within the scope of not changing the object or nature, the concept of “management” does not mean that the duty to maintain and repair and manage the railroad facilities borne by the Plaintiff according to the terms of the instant permission is limited to “ passive expenditure or necessary expenses for the maintenance and management”. Accordingly, the Plaintiff’s above assertion is without merit.

3) Whether expenses are incurred in facilities not subject to the instant permission

A) The part accepting the Plaintiff’s assertion

(a) Maintenance and repair expenses for railroad facilities, etc.;

In the execution of the instant case, the Plaintiff asserts that “the construction of the safety fence of the location where the application for free use is not filed, concrete packing, fence repair, drainage, construction of the fence, braille block repair, lighting equipment installation, cleaning and ventilation repair, facilities and equipment for the maintenance and repair of tracks section, the office of the control room, the office of the underground drainage room, the replacement of the air control room, the repair of the air air conditioners, the repair of the State facilities, and the legal inspection fees, etc.” among the construction of the safety fence of the location where the application for free use is not filed, should be excluded from the entrustment cost. As such, the Plaintiff claimed that the sum of the above expenses should be excluded from the entrustment cost.

In regard to this, the defendant is a person who has been executed in a facility not subject to the permission of use of this case or executed money for the use of this case. Thus, the above KRW 175,688,492 should be excluded from the amount of entrusted execution. Regarding the remaining expenses, the defendant must prove that each of the above items is included in the plaintiff's maintenance and management obligation as the subject of the permission of use of this case. However, it is difficult to conclude that each of the above items is subject to the permission of use of this case. Rather, according to the evidence No. 18, the defendant's evidence alone is insufficient to conclude that each of the above items is the cost expenditure related to the subject of the permission of use of this case. Thus, the above KRW 423,26,020 should be excluded from the amount of entrusted execution.

(2) Expenses paid by the Plaintiff’s assets

The plaintiff asserts that the defendant erred in calculating that the above expenses were executed from the commission fees under the contract for the maintenance and repair of this case, as to the 855 execution targets (which is classified as 101,434,848 won, and the "judgments" in the attached amount list) that maintained and repaired a facility not subject to the permission for use of this case as the plaintiff's operating asset.

On the other hand, the defendant only asserts that "the plaintiff's claim is not acceptable because it arranged the above data based on the item of the entrustment expense claimed by the plaintiff," and it does not submit any data to support the execution target and ground of the above expenses. Therefore, the above expenses should be excluded from the entrustment expense in accordance with the legal principles of the burden of proof.

B) The part rejecting the Plaintiff’s assertion

(a) Boarding facilities, fire-fighting facilities, and electrical facilities annexed to platforms;

The Plaintiff asserts that the Plaintiff did not have a duty to bear the costs of inspecting and repairing the entrance facilities installed pursuant to the "Act on the Promotion of the Use of Mobility Disadvantaged Persons" among the subject of the instant execution, the costs of installing fire-fighting facilities pursuant to the "small Method", and the costs of electrical facilities attached to the platform,

However, the basic fire-fighting equipment, electrical equipment, and special boarding facilities, which are the basic facilities installed pursuant to the laws and regulations for the safety of platform platforms used by the Plaintiff without compensation according to the permission of the instant use, fall under the facilities subject to the permission of the instant use, and the cost of maintaining and repairing the said facilities.

(2) Maintenance and repair costs of the Home Shelf;

The Plaintiff obtained the instant permission for use only on the platform site. As such, the Plaintiff asserts that the cost of maintaining and repairing the Home Shelf installed on that ground does not have any obligation to bear the said cost. However, the Home Shelf is a structure installed for enhancing the convenience of railroad users within the platform that is the object of the instant permission for use, and it cannot be deemed that it is an independent facility irrelevant to the platform.

(3) Braille block, safety and convenience facilities for persons with disabilities, and precise safety diagnosis;

The plaintiff asserts that the expenses for installation and repair of braille blocks and toilets for the disabled installed in accordance with the "Act on the Promotion of Convenience for Mobility Disadvantaged Persons" are expenses to be paid by the defendant who is the owner.

However, the obligation to maintain and repair the instant use permission includes the obligation to comply with the obligations prescribed in the relevant laws and regulations concerning the relevant facilities. Therefore, the Plaintiff is obligated to pay the relevant expenses.

C. Determination on the assertion of extinctive prescription

1) As to the Plaintiff’s assertion of extinctive prescription, the instant maintenance and repair contract provides that “the Plaintiff shall submit to the Minister of Land, Infrastructure and Transport a statement of accounts on the entrusted affairs within two months after the end of the business year, the statement of accounts on the entrusted affairs within three months (the maintenance and repair contract between 2005 and 2010)” and “the Plaintiff shall submit a statement of accounts and the statement of accounts on the entrusted affairs to the Minister of Land, Infrastructure and Transport (the maintenance and repair contract of 201) within six months after the end of the business year.”

According to the above facts, the plaintiff is obligated to submit a statement of accounts to the defendant as of February 1, 2009 concerning the details of the entrustment expenses in 2008 and the settlement of accounts until the end of March 2009. The defendant could settle the entrusted expenses in 2008 through the settlement of accounts at the end of March 2009, and thus the right to claim restitution of unjust enrichment is acquired at that time. Therefore, among the defendant's right to claim restitution of unjust enrichment with respect to the entrusted expenses in 2005 or 2008, the claim for the entrustment expenses in 2005 or 2008 among the defendant's right to claim restitution of unjust enrichment with respect to the entrusted expenses was clearly set a five-year prescription period from the date on which the claim occurred as of December 1, 2014, which was the date of the filing of the lawsuit in this case, the defendant's right to claim restitution of unjust enrichment with respect to the entrustment expenses in 2005 or 208.

2) As to this, the Defendant asserts that the starting point of extinctive prescription of the claim for return of unjust enrichment in this case is around October 2012, since it is impossible for the Defendant to know the occurrence of the right holder’s right in a situation where it is objectively difficult for the right holder to know the occurrence of the right, the extinctive prescription of the right is proceeding from the time when the right holder becomes aware of the occurrence of the right. The Defendant became aware of the fact that the Plaintiff had spent the consignment expenses under the instant contract for repair and repair in the course of the settlement of consignment expenses, and considering the lack of settlement data and the practical difficulties in the actual inspection of consignment expenses, etc., the Defendant cannot be aware of the occurrence of the claim for return of unjust enrichment in this case before that point. However, the Defendant’s assertion is insufficient to deem that the Defendant was unable to know the occurrence of the claim for return of unjust enrichment in this case

D. Sub-committee

1) Ultimately, the Plaintiff received according to the instant maintenance and repair contract: ① KRW 10,878,137,570 (the “head of the refund amount sheet” refers to the portion corresponding to the year 2009 through 2011 out of the “amount subject to refund”) and ② KRW 324,53,292, and ③ KRW 41,641,672,60, other than the Plaintiff’s assets from 2009 to 2011, and KRW 10,511,878,137,570 (the “head of the refund amount sheet” refers to the amount subject to refund”) to the Defendant without any legal cause; ② KRW 324,53,292, and KRW 41,641,672,06, other than the Plaintiff’s assets from 2009 to 2011 (the expenses paid from 2011 to 2011).

2) Therefore, the Plaintiff is obligated to pay for unjust enrichment to the Defendant 7,805,791,690 won (the execution balance of this case) and damages for delay at the rate of 6% per annum under the Commercial Act, from August 16, 2013, which was the Defendant’s claim for partial reimbursement of KRW 10,51,962,60, to the Defendant, until June 14, 2016, the date when the judgment was rendered, to the Plaintiff’s claim for restitution of the existence and scope of the obligation. The Plaintiff’s claim for damages for delay at the rate of 15% per annum as stipulated under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Promotion Act”) from the next day to the day when the full payment is made. The Plaintiff’s claim for the absence of the obligation to return the execution balance of this case is without merit.

4. Conclusion

Therefore, the defendant's counterclaim is justified within the above scope of recognition, and the plaintiff's main lawsuit and the defendant's remaining counterclaim are dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-hee (Presiding Judge)

1) The Minister of Construction and Transportation and the Minister of Land, Transport and Maritime Affairs shall be listed as the Minister of Land, Transport and Maritime Affairs.

Note 2) As seen earlier, “the instant terms and conditions of permission” are as follows.

Note 3) For example, each item that is subject to the cost expenditure, such as 30 high home safety fences, convenience facilities for persons with disabilities and platforms in the 2005 light line Seoul metropolitan area.

4) Although the Plaintiff adjusted the remaining amount to KRW 2,032,323,283 (a preparatory document dated December 17, 2015), according to the evidence (Evidence A6) submitted by the Plaintiff, the remaining amount seems to be KRW 5,938,079,224 (i.e., KRW 23,274,371,268 - KRW 17,336,292,04).

Note 5) Of the expenses of KRW 423,266,020 from 205 to 2011, the expenses corresponding to the year 2009 to 2011.

Note 6) Of the costs of KRW 101,434,848 from 205 to 2011, the costs amounting to the year 2009 to 2011.

(7) The Plaintiff’s act of entering into the instant maintenance and repair contract for the maintenance and repair of railroad facilities constitutes commercial activities, and the “debt arising from commercial activities” applicable to the statutory interest rate under Article 54 of the Commercial Act includes not only the obligation directly arising out of commercial activities but also the obligation identical thereto or the obligation recognized as being modified thereto. As such, the statutory interest rate in commercial activities shall apply to the claim for the return of the cost of unfair

8) The Defendant claimed for the payment of damages for delay under Article 3(1) of the Promotion Act from the day following the delivery date of the counterclaim of this case. However, Article 3(2) of the Promotion Act provides that “When it is deemed reasonable for the obligor to dispute about the existence or scope of the obligation, the provisions of paragraph (1) shall not apply to the reasonable extent.” The above substantial extent is not the scope of the obligor’s obligation to dispute, but the obligor’s dispute is a reasonable period of time for the obligor to dispute (see, e.g., Supreme Court Decision 86Meu1876, May 26, 1987). Since it is reasonable for the Plaintiff to dispute about the existence and scope of the obligor’s counterclaim of this case until this decision is rendered, the part of the Defendant’s claim for damages for delay exceeding the above scope is dismissed.