2013 Gohap2819 Return of unjust enrichment

○ Stock Company

Seo-gu Daejeon, Seo-dong 0

Dol chief director ○

Attorney Yellow-gu et al., Counsel for the defendant-appellant

○○-gu

Representative ○○○ by the head of the Gu

Attorney Cho Jae-woo, Counsel for the defendant-appellant

October 11, 2013

November 29, 2013

1. The plaintiff's claim is dismissed.

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

The defendant shall pay 100,010,000 won to the plaintiff and the interest rate from February 20, 2013 to the day of complete payment.

20% of the amount shall be paid in 20%.

1. Basic facts

A.O Co., Ltd., a foreign-capital invested company (hereinafter referred to as "OO") is the defendant around February 18, 1999

In addition, the land in this case owned by the defendant 10, 578 m2, 578 m2 (hereinafter referred to as "the land in this case"), among the 19, 172, 9m2, 1000 square meters

(1) The State wishes to enter into a lease agreement in order to build a large discount store on the ground.

The rental proposal was submitted.

B. The defendant on April 8, 1999 by Korea ○○ Co., Ltd. (hereinafter referred to as "Korea ○○")

Desiring to conclude a lease agreement to build a large discount store on the land of the case

The defendant submitted a rental proposal, and on April 14, 1999, the defendant also another company " ○ on around 14, 1999."

Since a request for lease has been made, if all desired enterprises are given a fair opportunity to participate in the lease?

The land in this case is sent by sending a letter of "plan to select an appropriate company for the examination."

Where he/she wishes to rent, he/she prepared a proposal for lease by no later than the 16th of the same month and announced him/her as shipping.

C. The defendant received and examined the rental proposal from the enterprises desiring to lease, and thereafter, thereafter, objection to 00

On June 29, 1999, a lease contract for the land between ○ and ○ on June 29, 199

(hereinafter referred to as "the instant lease agreement") was concluded.

D. The contents of the instant lease agreement pertaining to the instant case are as follows.

Article 3 (Lease Period)

(1) A lease period shall be calculated from the date of permission for construction (hereinafter referred to as "lease period").

(2) The lease period shall be 25 years and shall be extended by mutual agreement for an extension of the lease period by one year prior to the expiration of the lease period.

set forth in section 10.

Article 4 (Calculation of Rent)

(1) Rent shall be paid in advance for six years pursuant to the above agreement.

(2) The rent for the six-year period in advance shall be 1/100 of the appraised value of property and 110/200; 236, an aggregate of the five-year rents shall be KRW 1,000,000.

만삼백구십원정 ( ₩17 , 562 , 040 , 390 ) 에 해당한다 . 위 재산평정가격은 지가공시및토지등의평가에관한법률

was calculated using the most recent publicly announced individual land price in accordance with the provisions of the Act.

(3) Of the rent for six-year rent paid pursuant to paragraph (2), leeping equivalent to 50/1,00 of the appraised value of the above property.

십구억육천오백육십오만오천육백팔십원정 ( ₩7 , 965 , 655 , 680 ) 은 매년 위 재산평정가격의 1 , 000분의 50을

applicable settlement shall be settled by applying the remainder 1,000,000 Won 60,000,000

정 ( ₩9 , 596 , 384 , 710 ) 은 확정된 금액으로 갑 ( 피고 ) 에게 귀속되어 정산에서 제외한다 .

(5) Rent from the seventh anniversary of the year shall be governed by the Yangcheon-gu Ordinance on Property Management.

(6) Rent under paragraph (5) may be modified according to the details deliberated and determined by the Yangcheon-gu Public Property Deliberation Committee.

Article 5 (Period for Payment of Rent)

(1) Eul (O) shall be limited to the sum of rent for advance payment pursuant to Article 6 (1) of the above Convention and Article 6 (1) of the said Convention, whichever is ten million won per annum.

삼백구십원정 ( ₩17 , 562 , 040 , 390 ) 을 지불하였다 .

(2) The payment period of rent after the seven years old shall expire on the date on which the lease period of six years is terminated pursuant to Article 4 (1) (the lease period) of the Convention.

A day following the start date shall be paid within 60 days from the start date of each year.

(e) On November 17, 1999, ○○ is to construct large discount points on the ground of the instant land with a construction permit granted;

Then, it has been operated on September 29, 2001, and ○○ was merged with Korea on September 29, 2001, and ○○ Korea on September 9, 2006.

26. ○○, Co., Ltd., and ○○, Co., Ltd., Ltd., on September 17, 2008, respectively, were merged and merged with the Plaintiff (hereinafter the above).

The plaintiff is called "the plaintiff, regardless of whether before or after each merger."

F. The Defendant, on November 2005, up to six years after the lease period, extended to the Plaintiff around the day of November 2005.

As a result of the settlement of rent for the six-year period pursuant to Article 4 (3) of the Contract, the contract of this case is not concluded.

of 1,004, 673, and 370 won in addition to the rent received, shall be additionally paid and the addition shall be made.

From November 17, 2005 to the date on which six years have elapsed since the receipt of rent, each day specified in the column for the filing date of the attached Table every year.

the Plaintiff’s claim for the payment of the rent to the Plaintiff and the Plaintiff’s claim for the payment of the attached sheet from the Plaintiff

(The amount stated in the section shall be the sum of the amounts additionally settled as above.

the United States.) ..

[Ground of Recognition] Unstrifed Facts, Gap evidence 1, 2, and 7, Eul evidence 1-1, 2, Eul evidence 3, Eul evidence 4

written evidence, written evidence of Eul Nos. 12 through 19 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The parties’ assertion

(1) The plaintiff's assertion

The instant land owned by the Defendant constitutes miscellaneous property among public property, and thus, the instant lease system

Enforcement Decree of the former Local Finance Act (wholly amended by Presidential Decree No. 19226, Dec. 30, 2005) (wholly effective as of December 30, 2005)

Rent under the Ordinance of the defendant who is a local government pursuant to Article 92(1) of the Act.

Article 22 (1) of the defendant's Ordinance, which was in force at the time, shall be decided on the defendant's property.

The annual rate of usage fees for the property shall be 50/100 of the appraised value of the property concerned, and 22

Article 22 restricts the rate of increase in user fees calculated every year pursuant to Article 22.

However, the defendant shall not exceed the amount of rent calculated by the plaintiff pursuant to the above provisions of the ordinance.

The excessive portion is against the Local Finance Act, which is a mandatory provision, and the Enforcement Decree of the same Act.

Since it constitutes partial invalidation pursuant to Article 137, the defendant constitutes unjust enrichment against the plaintiff, exceeding the above mentioned above.

11, 86, 657, and 125 won for which the extinctive prescription has not elapsed, among rents received at the same time, shall be refunded.

The plaintiff bears the duty to be a part of its claim, and the plaintiff's delay in doing so. 100, 010, 000 won as part of its claim.

The amount of damages shall be claimed.

(2) The defendant's assertion

The Defendant, as a foreign-capital invested company, concluded a free contract with the Plaintiff.

Since the instant lease contract was concluded, the Foreign Investment Promotion Act, other than the former Local Finance Act, was entered into

As such, Article 13(4) of the Foreign Investment Promotion Act and Article 19(1) of the Enforcement Decree of the same Act shall apply to lease.

The rent shall be calculated by applying the rate of at least 10/100 to the value of the land which is the object of the contract.

Since it is only stipulated that the rent stipulated in the instant lease agreement is legitimate.

In addition, the defendant's existing Ordinance of the Yangcheon-gu Seoul Metropolitan Government Ordinance of August 10, 2006 (Ordinance No. 735 of August 10, 2006)

The Yangcheon-gu Seoul Metropolitan Government Ordinance on Commodity Management shall be repealed, and the Yangcheon-gu Seoul Metropolitan Government Ordinance on Commodity Management and Commodity Management shall be repealed.

The Ordinance was enacted, and Article 25 (1) of the newly enacted Ordinance is for the property owned by the defendant.

The fee shall be at least 50/100 of the appraised value of the property in question, so abolished;

The plaintiff's assertion that the rent shall be calculated by applying the rate of 1,000 to 50/1,000 pursuant to the Ordinance.

for the purposes of this section.

B. Determination

(1) Relevant laws and regulations

The relevant statutes, which were in force at the time of entering into the instant lease agreement, are as follows.

○ former Local Finance Act (wholly amended by Act No. 7663 of Aug. 4, 2005)

Article 83 (Management and Disposal of Miscellaneous Property)

(1) Miscellaneous property may be loaned, sold, exchanged, entrusted, or transferred, or established for private rights, and Acts and subordinate statutes or municipal ordinances.

In cases prescribed, investment in kind or payment in kind may be made.

(2) Matters concerning the lending, sale, exchange, trust and concession of miscellaneous property, and the creation of private rights, and calculation of lending rates, and lending charges.

The Act, reduction of or exemption from loan charges, price assessment, method of payment for sale, scope of payment in kind, etc. shall be prescribed by Presidential Decree.

○ former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 16983, Oct. 20, 2000)

Article 92 (Rate of Lending Property and Valuation of Lending Property)

(1) Rent or user fee of a public property shall be the lowest limit of 10/1000 per annum of the appraised value of the relevant property.

The municipal ordinance of a local government shall be prescribed by the Ordinance of the local government, but it may be calculated on a daily basis:

(2) If there are special provisions in this Act, such provisions shall apply.

(2) In calculating rent or user fee pursuant to paragraph (1), the appraised price of property shall be as follows:

The appraised value pursuant to subparagraph 1 shall be calculated by the method. In such cases, the appraised value of property shall be during the period of permission for use or profit.

The appraised value under subparagraph 2 shall be determined every year, and the appraised value under subparagraph 2 shall be less than 3 years within 3 years after the determination.

may be used.

1. In case of land, the publication place most recently published under the Public Notice of Values and Appraisal of Lands, etc. Act; and

(a) Where there exists no officially assessed individual land price of the relevant land, the officially assessed land price under Article 10 of the same Act;

The amount calculated by using the standard (referring to the amount calculated based on the standard).

○ former Foreign Investment Promotion Act (amended by Act No. 7039 of Dec. 31, 2003)

Article 13 (Lease and Sale of State-Owned or Public Property)

(1) The Minister of Finance and Economy, the administration of State property or local governments shall bring lawsuits.

Pursuant to the State Property Act and the Local Finance Act, land factories or other State-owned or public property (hereinafter referred to as "land, etc.")

Notwithstanding the relevant regulations, use, profit or loan to foreign-capital invested companies by a free contract (hereinafter referred to as "lease").

(d) may be sold or sold.

(4) The rent of the land, etc. leased under paragraph (1) shall be Articles 25 (1) and 38 of the State Property Act.

Notwithstanding the provisions of Articles 82(2) and 83(2) of the Local Finance Act and Article 82(2) of the same Act, the Presidential Decree may

It may, if necessary, be denominated in a foreign currency.

○ former Enforcement Decree of the Foreign Investment Promotion Act (amended by Presidential Decree No. 16720, Feb. 23, 2000)

Article 19 (Lease, etc. of State or Public Property)

(1) The rent of land, etc. under Article 13 (4) of the Act shall be not less than 10/100 of the value of the relevant land

amount calculated by multiplying the rate by the rate (proviso omitted)

(2) Acts and subordinate statutes applicable to the instant lease agreement

The former Local Finance Act and the Enforcement Decree of the same Act, which were in force at the time of entering into the instant lease agreement

The user fee of the land of this case, which is a local government, shall be determined based on the officially announced value.

It may be prescribed by the ordinance of the defendant under the lowest limit of 10/100 of the appraised value of the calculated property.

High, according to the former Enforcement Decree of the Foreign Investment Promotion Act, at least 10/1000 of the land value of this case.

section 23(3) of this title.

The land owned by a local government under Article 13 (1) of the former Foreign Investment Promotion Act

(1) Notwithstanding the provisions of the Local Finance Act, a free contract may be leased to a foreign-invested enterprise

the local government's property, the local government's local government's property

in principle, a loan contract is concluded through competitive bidding unless it falls under the grounds for exception prescribed by the section.

the entry into foreign investment by supporting foreign investment and providing convenience for foreign investment.

The property of local governments in light of the purpose of legislation of the Foreign Investment Promotion Act to promote

Pursuant to the above provisions, a loan agreement shall be concluded by means of a private contract which is not a competitive tender.

The meaning of this provision is that the home may be provided. In light of the meaning of this provision, the meaning of this provision is under the above provision.

(1) The promotion of foreign investment, notwithstanding the provisions of the Local Finance Act, with respect to rents for land leased.

Article 13 (4) of the former Foreign Investment Promotion Act, which shall be governed by the Enforcement Decree of the Act, is owned by a local government.

applicable only to a loan to a foreign-capital invested company by free contract.

It can not be interpreted, and it is applied to loans through competitive bidding as well as private contracts.

Since it is reasonable to see that the instant lease agreement between the Plaintiff and the Defendant as a foreign-capital invested company is concluded.

the contract is concluded through any method of competitive bidding or negotiated contract;

Notwithstanding the provisions of the former Local Finance Act, the former Foreign Investment Promotion Act shall be applied.

(2) The plaintiff and the defendant expressed their intent to rent the land of this case and they leased the land of this case

Upon receipt and review of the rental proposal from the network companies, the Plaintiff decided to lease the said land.

F. During the process of concluding the instant lease contract, only the Plaintiff was designated as a contracting party and entered into a contract.

(2) If the local financial institution fails to conduct the competitive bidding process prescribed in the Local Finance Act

In addition, there may be room to view that the instant lease agreement was concluded by means of a negotiated contract.

(3) Whether the application of the amended ordinance is legitimate or not

(A) The amendment process of the defendant's ordinance

According to Gap evidence 3, 4, Eul evidence 5 to 10 (including number 1)

the facts are recognized.

○ The Yangcheon-gu Seoul Metropolitan Government Ordinance on the Management of Property that was in force at the time of entering into the instant lease agreement.

Regarding the calculation of rent, the following provisions were prescribed.

Article 22 (Rates of Rental Fees or Rental Fees)

(1) The annual loan rate or use rate under Article 92 of the Decree shall be 50/1,00 of the appraised value of the relevant property.

(The proviso to this paragraph shall be omitted)

Article 22-2 (Special Cases concerning Rent, etc.)

in the event that the Gu property continues to be occupied or used for at least two consecutive years, under the provisions of Article 22;

When the annual rent withdrawn has increased by at least 10% than the annual rent paid or payable in the previous year;

Notwithstanding the provisions of Article 22, the rate of increase in rent in the current year shall be applied as follows:

○ However, the Defendant amended by Ordinance No. 588, Nov. 20, 2001 after the conclusion of the instant lease agreement.

A person shall be appointed.

Article 22 (1) of the Ordinance shall apply mutatis mutandis to annual loan rates or use rates 50/1,000 of the appraised value of the relevant property.

In addition, the Yangcheon-gu Seoul Metropolitan Government Act was enacted on August 10, 2006; and

Article 25 (1) of the Ordinance on Commodity Management also provides for the same contents.

(B) Whether the amended ordinances apply

1) At the time of entering into the instant lease agreement, the Plaintiff’s lease from seven years following the Defendant’s municipal ordinance

50/1,000 of the rent rate prescribed by the Municipal Ordinance which was in force at the time, according to an agreement to determine the fee;

50/1,000 in spite of the amendment of any subsequent municipal ordinance, as it was incorporated into the content of this lease agreement.

Although asserting that the rate of rent should be applied as it is, as seen earlier, the lease of this case

D. Article 4(5) of the Constitution applies to the rate of rent prescribed by the defendant's municipal ordinance when calculating the rent from July to July.

The application of the rent rate prescribed by the municipal ordinance which was in force at the time of the conclusion of the contract is only stipulated.

Therefore, the plaintiff's above assertion is without merit.

2) Next, the Plaintiff unilaterally leases money by the Defendant, a local government, for the purpose of the amendment of municipal ordinances.

Conclusion of a contract with the fact that the rate can be changed and the core contents of the lease contract called the rate of rent.

Since it is extremely unfair that it can be changed due to unpredictable circumstances after the amendment of the Ordinance.

Land of this case, regardless of whether before or after the conclusion of the instant lease agreement, pursuant to the ordinance being enforced.

The author argues that the rent should be calculated by 50/100 of the appraised value of the property.

As long as the authenticity of a disposal document is recognized, the statement of intention in accordance with the language stated in the disposal document.

As a matter of principle, Article 4 (5) of the Lease Contract of this case is from the beginning of 7 years.

The rent shall be calculated by applying the rent rate prescribed by the defendant's municipal ordinance to the rent.

Since this language is apparent, the rent shall be calculated in accordance with the ordinance in force at the time of the imposition of the rent.

and, in light of the aforementioned facts and the purport of the entire arguments, the following information can be known:

The circumstances, i.e., ① the instant lease contract is a private contract, and the Plaintiff and the Defendant agreed upon by mutual agreement.

The status of the plaintiff who is a large enterprise operating a large number of discount stores over the whole country.

Considering that the Defendant’s exercise of undue pressure at the time of entering into a contract, or that it is a local government.

(2) The Plaintiff’s lease of this case cannot be seen as a superior position compared to the Plaintiff.

The rate of rent is amended by the defendant's municipal ordinance during a long-term lease period of 25 years when the contract is concluded.

It is difficult to find it difficult to at all predict that this increase can be made, and ③ the defendant's municipal ordinance.

Where the rent rate is set and the lease period is at least two years, the rent shall be fixed in comparison with the previous year.

Since there is a provision that prohibits the increase of rent more than the rate, the rent can not be predicted at all.

(4) The officially assessed individual land price of the land of this case is the same as that of this case.

A contract for 14 years (from November 17, 2012 to November 16, 2013) compared to the time the instant lease contract was concluded.

3. Lease contrary to the increase of five times ( = 7, 810, 000 won: 2, 230, 000 won; hereinafter referred to as a decimal point).

Fees: approximately two times ( = 5,51, 966, and 800: 1 year rent: 2, 713, 986, and 412. Minority

Since it was merely an increase in the place (hereinafter referred to as the "place") the Defendant had unfairly increased the rent.

In full view of the fact that it is difficult to see this case’s lease agreement as above, it is interpreted as its language and text.

of the parties to the contract may be deemed to have significantly unfair results to one of the parties to the contract.

It is difficult to do so.

Therefore, without any legal ground, the Defendant received rent from the Plaintiff for the instant land.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Sung-soo

Judges Dominium

Judges, Senior Superintendent-General

1) It appears that it is a clerical error in Article 4.

A person shall be appointed.