200 oldest 76251 Revocation of Disposition of Imposing an indemnity

*

*

on March 10, 2021

March 31, 2021

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The disposition imposing indemnity of KRW 72,433,700 against the Plaintiff on October 20, 2020 shall be revoked.

1. Details of the disposition;

A. On June 29, 1982, the Plaintiff (formerly: an incorporated association C) acquired ownership of 18.3 square meters (hereinafter referred to as the “land in this case”) and the same **-**-218.8 meters (hereinafter referred to as “fluoring land”) on the land adjacent to the land on March 22, 1984, and newly constructed a building of 2nd and 7th floor above the ground (hereinafter referred to as “fluoring building”).

B. On May 10, 198, ○○ City completed the registration of ownership transfer on the instant land based on a consultation acquisition of public land.

C. On October 20, 2020, the Defendant issued a disposition imposing indemnity of KRW 72,43,700 for the period from October 1, 2015 to December 31, 2019 (hereinafter “instant disposition”) on the ground that the Plaintiff occupied the instant land without permission, based on Article 81 of the Public Property and Commodity Management Act (hereinafter “Public Property Act”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 6, and 8 (including a provisional number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Acquisition of legal superficies under customary law

Although the neighboring building exists on the land adjacent to the adjacent building, the connected land and the instant land functioned as a practically single land for the use of the connected building. As the owner of the instant land changed to △△ City, the Plaintiff is in a legal position to justify the occupancy or use of the instant land by acquiring legal superficies under customary law on the instant land, and thus, the instant disposition based on the premise that the Plaintiff occupied the instant land without permission is unlawful.

2) Agreement of implied agreement to exempt usage fees or indemnities has been reached

The Defendant, from May 10, 198 to the date of the instant disposition, did not impose usage fees or indemnities only once on the Plaintiff from May 10, 1988 to the date of the instant disposition. Since an implied agreement was concluded between the Plaintiff and the Defendant exempting the Plaintiff from usage fees or indemnities with respect to the instant land, the instant disposition was unlawful.

3) Illegal calculation of indemnity

Article 29(1)6 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 31429, Feb. 2, 2021; hereinafter the same) provides that annual usage fees shall be at least 30/1,00 in cases of direct use of a business operated by a micro enterprise under Article 2 of the Act on the Protection of and Support for Micro Enterprises. The land owned by the Plaintiff is directly used as a passage for the business operated by a micro enterprise. Accordingly, when applying the calculation rate of the disposition of this case to 0.03, not 05, by applying the above provision mutatis mutandis, it is KRW 43,457,656, and the disposition of this case shall be revoked within the scope of the amount calculated in excess of the above amount.

B. Determination

1) Determination as to the assertion of acquisition of legal superficies under customary law

The statutory superficies under customary law can be acknowledged in cases where land and its ground buildings owned by the same person have different owners due to sale and purchase, or other causes (see, e.g., Supreme Court Decision 2005Da41771, 41788, Feb. 15, 2008). As seen earlier, neighboring buildings are not newly constructed on the land of this case, so the statutory superficies under customary law for neighboring buildings cannot be established. Thus, this part of the Plaintiff’s assertion is without merit without further review.

2) Determination as to the assertion of an implied agreement to exempt user fees or indemnities

A) According to the facts acknowledged earlier and the statement in the evidence No. 1, the instant land falls under the property for public use among the administrative property as public property. According to Article 22(1) of the Public Property Act, user fees can be collected when the head of a local government permits the use of and profit from administrative property.

However, there is no dispute between the parties that the Plaintiff did not obtain the Defendant’s permission to use or profit from the instant land. As seen below, the Plaintiff occupied or used the instant land, which is administrative property, and as such, did not have a legal position to justify the occupation or use of the instant land because it did not acquire statutory superficies under the customary law, and thus, it constitutes an unauthorized occupant, who is not a user fee, who

B) Even though the Plaintiff continued to possess the pertinent land after acquiring the ownership of the instant land, it is difficult to deem that the Defendant explicitly expressed to the Plaintiff the intention not to impose indemnity on the instant land, or that an implied agreement was concluded between the Plaintiff and the Defendant to exempt indemnity (see, e.g., Supreme Court Decision 9Du10193, Feb. 26, 2002).

C) Therefore, the Plaintiff’s assertion on this part is without merit.

[Plaintiff] After the closing of argument in this case, the Plaintiff asserts to the effect that it is not subject to indemnity because the Plaintiff did not exclusively use the instant land in an exclusive and exclusive manner, and that the Defendant’s disposal of this case without prior notice would violate the principle of trust protection.

The following circumstances, which are acknowledged by the respective descriptions of evidence Nos. 4, 7, and 10 and the purport of the entire pleadings, namely, ① is located between the entrance part of the entertainment bar and the news report of the neighboring building; it appears to be used as the entry of the entertainment bar in the neighboring building because it is divided from the news report of the general public; ② it is not necessarily necessary to exclusively use and exclusively use the land; and the occupied part cannot be deemed as not possessing it because it is offered to the general public at the same time (see, e.g., Supreme Court Decision 2018Du48298, Sept. 9, 2019). 3) In full view of the following circumstances, it is reasonable to deem that the Plaintiff occupied the instant land without permission even if the Plaintiff did not exclusively use the land in the exclusive and exclusive manner prior to the closing of argument in the instant case.

In addition, there is no evidence to prove that the Defendant issued the name of the public opinion that is trusted to the Plaintiff, and even if an indemnity is imposed after the management agency has left the possession and use of the public property for a long time with respect to a person who occupies or uses the public property without permission, the imposition of indemnity is contrary to the procedural justice and the principle of trust, or the possessor’s right to use or profit from the public property cannot be recognized (see, e.g., Supreme Court Decision 2005Du11463, May 15, 2008). The instant disposition cannot be deemed to violate the principle of trust protection.

Therefore, all of the plaintiff's additional arguments are without merit.

3) Determination as to the illegality of calculation of indemnity

A) The main text of Article 81(1) of the Public Property Act provides that an indemnity amounting to 120/100 of the usage fees or rent of the property shall be collected from an unauthorized occupant of the public property as prescribed by Presidential Decree. The main text of Article 81(1) of the former Enforcement Decree of the Public Property Act (amended by Presidential Decree No. 31276, Dec. 22, 2020; hereinafter the same shall apply) provides that an indemnity amount under Article 81 of the Act shall be an amount equivalent to 120/100 of the total amount of usage fees or rent calculated pursuant to Articles 14 and 31 of the Enforcement Decree of the Public Property Act. In addition, Articles 22(1) and 32(1) of the Public Property Act provide that an annual rate of usage fees or rent (the conclusion of an administrative loan contract) shall be at least 20/100 of the market price of the property according to Article 14(1) of the former Enforcement Decree of the Public Property Act shall be determined by Municipal Ordinance of the same Act.

In light of the language, content, form, system, etc. of each of the above statutes and the instant ordinances, in principle, at least 5% (0.05) shall be calculated for the illegal occupant of the Franchising-gu public property, and on an exceptional basis, there is only room for applying the mitigation rate pursuant to Article 26(2) through (5) of the instant Ordinance.

However, there is no evidence to deem that the occupation and use of the Plaintiff’s land in this case constituted Article 26(2) through (5) of the instant Ordinance stipulating the reduction rate.

B) The Plaintiff asserts that Article 29(1)6 of the former Enforcement Decree of the State Property Act should apply to the calculation of compensation for the instant land. However, the applicable law of the public property owned and managed by the local government and the State property owned and managed by the local government is divided into the Public Property Act and the State Property Act, and the applicable law of the State Property Act is strictly construed in cases of sediative administrative disposition that restricts the rights and obligations of the people. Therefore, it is reasonable to deem that the provision on the calculation of compensation for the instant land, which is a public

C) Therefore, the instant disposition, which calculated indemnity at a rate of 5% (0.05) with respect to the instant land, cannot be deemed unlawful. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.