2010Tit2816 Undue gains

○ & & & & & & & & & corporation

00,000 00,000

Maximum director ○○

Attorney Lee Dong-ho, Counsel for the defendant-appellant

1. Korea;

Representative of Law and Lee Jae-Nam

2. A forest room group:

The representative of the Gun Gangwon-do

[Judgment of the court below]

July 15, 2010

August 19, 2010

1. The plaintiff, the defendant Republic of Korea shall pay to the plaintiff 117, 017, and 482 won, the defendant Y-gun shall pay to the plaintiff 285, 918, and 739 won with 20% interest per annum from June 17, 2010 to the day of full payment.

2. It is confirmed that the loan charges for the year 2010, which the Plaintiff had to pay to the Defendants according to the loan agreement concluded between the Plaintiff and the Defendant, shall not exceed KRW 3,011,466 for the real estate listed in the separate sheet No. 1, and KRW 5,816,396 for the real estate listed in the separate sheet No. 2, and KRW 5,816,396 for the real estate listed in the separate sheet No. 2.

3. The plaintiff's remaining claims against the defendants are all dismissed.

4. The costs of lawsuit are assessed against the Defendants.

5. Paragraph 1 can be provisionally executed.

The part of the claim for the confirmation of the existence of the obligation with respect to the real estate listed in the separate sheet No. 1 in the Disposition No. 2 is as indicated in the Disposition No. 1. The Plaintiff, the Defendant Republic of Korea, and the Defendant Republic of Korea, and the 285, 921, and 451 won to the Defendant, and each of the above money, shall be paid an amount calculated by applying a rate of 20% per annum from June 17, 2010 to the date of full payment. It is confirmed that the Plaintiff and the Defendant, under a loan agreement entered into between the Plaintiff and the Defendant, do not have any loan for the year 2010 regarding the real estate listed in the separate sheet No. 2 list No. 5,815, and 504 won to the Defendants pursuant to the loan agreement entered in the separate sheet No. 2.

1. Basic facts

A. The plaintiff, around 2003, is accompanied by the attached Tables 1 and 2, owned by the defendants from the defendant's forest room-gun around 2003.

산 ( 이하 ' 이 사건 토지들 ' 이라 한다 ) 에 대하여 점용 또는 사용 · 수익허가를 얻어 그 무 렵부터 이 사건 토지들 및 그 주변 토지에 대하여 자금을 투자하여 골프장 조성공사를 시행하여 공사를 마친 이래 ' ▷♤ ♤☆☆라 □△△△△ ' 이라는 상호로 골프장 영업을 하여 왔고 , 이와 같은 골프장 조성공사로 인하여 도로와 임야 등으로 이용되던 이 사 건 토지들은 체육용지로 그 이용상황이 변경되었다 .

B. From 203 to 203, the Plaintiff calculated the amount of the loan charges of this case by 10,000 won on the aggregate of 20,000,000 Won-gun No. 2,00,000,000,000 Won-gun No. 2,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,00,000,000,00,000,00,00,00.

C. Meanwhile, with regard to the land category and utilization status of the instant land as of the officially assessed individual land price in 2003, at the time the Plaintiff started possession, the instant land is considered to be the road or forest, etc., and thereafter, according to the natural land price fluctuation rate (1. 029%) of the instant land from 2005 to 2010, the value per unit area of the instant land is calculated as stated in the column of “an adequate value per unit area of rent” (1. 50/1,00), and the amount is as stated in the column of “an appropriate amount of rent” (50/1,000) multiplied by the size of the loan and rate of rent (50/1,00) of the pertinent land, as stated in the column of “an appropriate rent of rent of 30 to 205 to 200, 208 to 300, 205 to 205 to 68, 2005 to 20.

D. Among the loan charges paid by the Defendant, the loan charges for the instant State-owned property was reverted to 50% in Defendant Republic of Korea, the forest, and the forest, respectively, pursuant to Article 34(3)2 of the former Enforcement Decree of the Property Act. The loan charges for the instant public-owned property belonged to the Defendant, the forest, and the forest, respectively.

[Ground of Recognition] Unsatisfy, Gap evidence Nos. 1 and 2 (including branch numbers), as a whole, and 2. Determination as to a claim for restitution of unjust enrichment

A. The Defendants’ obligation to return unjust enrichment

According to the above facts, after the plaintiff commenced possession of the land in this case, the land in this case increased the value of the land in this case by constructing a golf course at his own expense, and as a result, the use status of the land in this case was changed to a sports site. In this case, the amount of the property under Article 26 (2) 1 of the Enforcement Decree of the State Property Act, which serves as the basis for calculating the rent for the loan of state property, shall not be based on the changed state in which the possessor who acquired the loan of state property increased the value by his own cost and effort after the commencement of possession, unless there are special circumstances, it shall not be based on the changed state in which the possessor who acquired the loan of state property increased the value by his own expense and effort, but shall be assessed based on the actual use state at the time of the commencement of possession by the possessor (see, e.g., Supreme Court Decisions 98Du17647, 17654, Feb. 12, 199; 97Nu4098, Jan. 28, 200).

Since the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 26(1) provides for the use fees of State-owned property under the proviso of Article 26(1) of the former Enforcement Decree of the State Property Act, the same applies to the case where the loan charges for State-owned property are concluded after the conclusion of the loan agreement. Under Article 21(2) of the Enforcement Decree of the State Property Act (hereinafter referred to as the "Enforcement Decree of the State Property Management Act"), the loan charges for State-owned property shall be calculated by applying the individual land price for the relevant land recently announced pursuant to the Public Notice Notice of Values and Appraisal of Real Estate Act. The Defendants’ assertion that the loan charges for State-owned property should be calculated based on the officially assessed individual land price calculated based on the situation in which the land is used as golf clubs, ditches, forests, and forests, and the remainder of the loan charges for State-owned property shall not be deemed to be the same as the loan charges for State-owned property management of State-owned property in accordance with the above Enforcement Decree of the State Property Act. However, the above provision of the State Property Act does not apply to the above loan charges for State-owned property.

Therefore, the appropriate loan charges under the instant loan agreement are the amount of 'reasonable loan charges' in the list of appropriate loan charges in attached Tables 3 and 4 calculated according to the criteria as above 1-C. Thus, among the loan charges imposed by the Defendants, the part exceeding the above appropriate loan charges is profits accrued from another person's property without any reason in light of the law and the Defendants are obliged to return them with unjust gains ( Meanwhile, the Defendants are obliged to calculate unjust gains with regard to overdue charges imposed on the grounds that they exceeded the payment deadline of the loan charges notified from 2007 to 2009.

Therefore, it may be problematic whether the loan charges in the notice of payment should be deducted. However, if the amount of the loan charges in the notice of payment is remarkably excessive compared to the amount of the loan charges calculated without accordance with the substitute contract or the relevant Acts and subordinate statutes stipulated in the contract, the payment notice of the loan cannot be deemed a legally required performance request, and thus, it cannot be deemed that it constitutes a claim for performance, which is a requirement for the payment of late payment charges (see Supreme Court Decision 99Da61675 delivered on February 11, 200). According to the above facts, in imposing the loan charges on the land of this case, the defendants can recognize the fact that the loan charges in the initial notice of payment are more than about 10 times the appropriate loan charges calculated fairly, and the loan charges in the initial notice of payment of the loan charges in this case shall be deemed to be considerably excessive compared to the legitimate substitute charges, and thus, it is not necessary to separately calculate the amount of the loan charges in this case as legitimate performance requirements for the payment notice of late payment.

B. Scope of unjust enrichment

The defendant Republic of Korea shall pay to the plaintiff 17, 017, and 482 won [ = (248, 640, 130 x 50 %) - (14, 605, 167 won x 50% of the loan charges belonging to the defendant in the Republic of Korea for the State-owned property in this case] - (The appropriate loan charges for the State-owned property in this case shall be rounded off to the first place in terms of convenience) calculated by calculating convenience 285, 918, 829 won ( = 117, 017, 482 won for the State-owned property in this case) calculated by 168, 901, 347 - the loan charges in this case for the State-owned property in this case to the plaintiff 2, 301, 347 - the reasonable loan charges in this case to the defendant 2, 184, 201, and 347) calculated by 0.

3. Determination as to the claim for confirmation of existence of an obligation

A. According to the officially assessed individual land price determined based on the circumstances in which the land in this case was used as a golf course, Defendant 1-gun determined the per unit area and determined the value of the property by multiplying the loan area by 2,000,080,969 won for the land in this case by the rate prescribed in Article 26(1) of the Enforcement Decree of the State Property Act, and imposed the loan fee of 141,080,000,000 won for the land in 2010. However, as of the land category and utilization status of the land in this case as of the time when the Plaintiff commenced possession, the land in this case was proposed to be the road or the rent of 30,000,000 won for the land in this case as of the time when the land in this case was used as a golf course, and the amount calculated by multiplying the lease area and the rent rate of 30,000,000 won by 30,000 won for the land in this case.

B. The appropriate loan charges under the instant loan agreement are the amount of 'reasonable loan charges' in the list of appropriate loan charges in attached Tables 3, 4, and 3, which are determined by the criteria as stated in Paragraph (c) of the above 1-C. Thus, the loan charges to be paid by the Plaintiff to the Defendant according to the said loan agreement does not exist with respect to the instant State property in excess of 3,011, 466 won, which the Plaintiff sought against the Defendant, and 5,816, 396 won for the instant public property in excess of 5,816, and 396 won, and as long as the Defendants are dissatisfied therewith, the Plaintiff has a benefit to seek confirmation.

4. Conclusion

Thus, 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.

The presiding judge shall organize judges;

Judges Pipe-jin

Judges Park Jae-min

1) 117, 017, 484 won [ = (248, 640, 130 won x 50% x 50% x the loan reverted to Defendant Y-gun with respect to the State property in this case] - (14, 605, 167 won x X

50%, the appropriate loan charges for the State property of this case: as a result of calculating convenience, it shall be rounded off at the first decimal place.