Plaintiff

Korea Asset Management Corporation (Law Firm Dongo, Attorneys Choi Woo et al., Counsel for the plaintiff-appellant)

January 18, 2012

Busan District Court Decision 2010Guhap5784 Decided June 17, 2011

1. Upon a claim changed in exchange at the trial, the Defendant’s disposition of demanding the payment of KRW 12,69,136 of the indemnity against the Plaintiff on December 12, 2011 shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The Plaintiff initially sought revocation of the portion exceeding KRW 1,353,626 of the payment demand disposition of KRW 12,505,563, which was made by the Defendant to the Plaintiff on August 9, 2010, and subsequently changed the purport of the claim as above in the court of the first instance.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. From December 3, 2002 to February 6, 2010, the Plaintiff occupied and used 61.24 square meters (hereinafter “instant real estate”) out of 127 square meters in the Busan Bluedong-gu ( Address omitted) located in the Republic of Korea, which is owned by the Republic of Korea, without permission.

B. On the premise that the Plaintiff occupied and used the instant real estate without permission, the Defendant imposed and notified the Plaintiff four times as indicated in the previous imposition disposition column as follows. On January 23, 2009, the Defendant filed a lawsuit against the Plaintiff for the return of unjust enrichment equivalent to the royalty of the instant real estate (hereinafter “related lawsuit”) on January 23, 2009, Busan District Court Decision 2009Da8419, which was separate from the above imposition disposition. The said court rendered a judgment below on October 28, 2009, and the said judgment became final and conclusive around that time.

The defendant shall pay to the plaintiff (Korea Asset Management Corporation), ① 17,495,013 won, and the amount calculated by applying 5% per annum from January 23, 2009 to February 4, 2009, and 20% per annum from the next day to the date of complete payment, and ② The amount of money calculated by applying 316,406 won per annum from January 23, 2009 to the last day of the defendant's possession of the real estate in this case.

C. On December 23, 2009, the Plaintiff paid KRW 24,419,417 (hereinafter “payment”) to the Defendant on December 23, 2009, and the payment was made from January 23, 2004 to January 23, 2010, which resulted from the possession and use of the instant real estate (the amount of payment was made £« the principal and interest of unjust enrichment that occurred + from January 23, 2009 to January 23, 2010). The Plaintiff terminated the illegal possession of the instant real estate on February 6, 2010.

D. As to KRW 21,471,885 out of the repayment amount, the Defendant classified the principal of the relevant case as to KRW 21,471,885, and as to KRW 3,127,532, the remainder as damages for delay of the relevant case. On December 12, 2011, the Defendant urged the Plaintiff to pay 7,868,825 won (i.e., 29,160,710 - KRW 21,291,85) by determining the amount of indemnity based on the previous imposition disposition as KRW 29,160,710, KRW 29,666,136,136,126, etc. among the total amount of compensation due to the previous imposition disposition and overdue interest thereof by December 26, 201 (hereinafter “instant urge to pay”).

Details of the previous disposition of this case, which is contained in the main sentence, 208. 3. 4. 2, 2008. 4. 12. 3- 2002. 3- 2007. 31, 2002- 3- 2004. 2,161, 863 5,863. 46. 86. 46. 208. 208. 35. 16. 208. 196. 2, 207. 208. 35. 207. 196. 2, 208. 196. 4, 207. 208. 16. 35, 2007. 35, 2007. 150. 231, 2006; 6729. 639-16.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 3-1 to 8, Eul evidence 4-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case to the effect that since the full repayment was made in accordance with the purport of the relevant lawsuit, the indemnity for the entire period of possession should be calculated, and that the remainder, except the repayment, should be calculated, and the remainder should be paid, including the period of possession in the relevant lawsuit, and the interest thereon should be paid.

(b) Related statutes;

State Property Act

Article 72 (Collection of Indemnities)

(1) The head of a central government agency, etc. shall collect from a person occupying any State property without permission an indemnity equivalent to 120/100 of the usage fees or loan charges of the State property, as prescribed by Presidential Decree.

Article 73 (Collection of Overdue Charges, etc.)

(1) The head of a central government agency, etc. may collect overdue charges, if usage fees for State property, surcharges, loan charges, proceeds from sale, exchange funds, and indemnities (excluding any interest on delay in collection or in installments) fail to be paid by the payment deadline, as prescribed by Presidential Decree. In such cases, the period for which overdue charges are imposed shall not exceed 60 months from the payment deadline.

(2) Where usage fees for State property, surcharges, loan charges, indemnities, and late payment charges under paragraph (1) have not been paid by the payment deadline, the head of a central government agency, etc. may collect them by applying mutatis mutandis the provisions of Article 23 of the National Tax Collection Act and the same Act concerning the disposition on default according to the following methods:

C. Determination

In full view of the following circumstances revealed in accordance with the relevant laws and the purport of the entire pleadings, it is reasonable to view that an indemnity for a period of illegal occupation equivalent to the amount of reimbursement that the Plaintiff received based on the relevant lawsuit during the previous imposition disposition has ceased to have been effective and the partial liability for payment has ceased to exist. As such, the instant disposition that urged the payment, including the amount of indemnity

1) It is possible to impose indemnity under the State Properties Act on a person who has occupied any State property without permission and seek a return of unjust enrichment equivalent to rent or rent under the Civil Act instead of collecting indemnity in accordance with Article 23 of the National Tax Collection Act and the disposition on default under the same Act.

2) In light of the fact that the State Property Act requires the State to collect indemnity unilaterally by adding the amount equivalent to 20 percent of the loan charges or usage fees to the illegal occupant of the State property where the permission for loan, use or profit-making is granted, in addition to the amount equivalent to the loan charges or usage fees to be paid to the illegal occupant of the State property, within the punitive meaning, and the State Property Act requires the State to collect indemnity under the National Tax Collection Act at the time of default on the payment of indemnity, etc., the disposition imposing indemnity to the illegal occupant of the State Property cannot be deemed as a juristic act under private law conducted by the State as the private economic entity, and this is an administrative disposition subject to administrative litigation on the ground that the management agency has performed in a superior position with the public power (see Supreme Court Decision 87Nu

However, in light of the following circumstances: (a) the Defendant filed a lawsuit without due process of collection pursuant to relevant Acts and subordinate statutes; (b) the method of calculating indemnity and unjust enrichment equivalent to indemnity or usage fees under the Civil Act is different; and (c) the same period of occupation and unjust enrichment and indemnity may be the same, or the unjust enrichment may be higher than indemnity, in a lawsuit claiming restitution of unjust enrichment, it is reasonable to deem that the Defendant’s measure, such as filing a lawsuit for return of unjust enrichment under the Civil Act, instead of the aforementioned collection procedure, against the person liable for reimbursement; and (c) the Defendant’s disposition imposing indemnity for the period of occupation for which the reimbursement of unjust enrichment was claimed, upon payment

3) It is reasonable to deem that a person entitled to indemnities has trusted that his liability to pay the partial amount of indemnities has been terminated by filing a lawsuit claiming unjust enrichment under the Civil Act, and paying unjust enrichment for the period of possession. Therefore, there is sufficient room to deem that the instant disposition contravenes the principle of trust protection (see Supreme Court Decision 98Du19070, Mar. 9, 199, etc.).

3. Conclusion

Therefore, the plaintiff's claim of this case that has been changed in exchange at the trial of the party is justified and it is so decided as per Disposition.

Judges Jeong Jong-chul (Presiding Judge)