2011Na3251 Compensation for damages

Korea

Busan District Office of Local Land Management of Busan District, Dongsan District, 200

The legal representative, Minister of Justice, and Justice

Article 00 of the Litigation Performers, DuO, MaO0

○ ○

Permanent Residence Haba Dong

Attorney Cheong-chul et al.

[Defendant-Appellant]

Busan District Court Decision 2010Gahap20023 Decided April 22, 2011

April 5, 2012

September 6, 2012

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The defendant shall pay to the plaintiff 74,502,786 won and 24,120,00 won among them, 20,544,390 won from April 10, 2002 to May 15, 2002; 29,838,396 won from December 8, 2009 to December 6, 2012; 5% per annum from September 6, 2012 to the date of full payment; and 20% per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder 60% is borne by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff the amount of KRW 124,171,310 and KRW 40,200 among them, KRW 34,240,650 from April 10, 2002 to May 15, 2002; KRW 49,730,660 from December 8, 2009 to the delivery date of each complaint of this case; KRW 5% per annum from the next day to the day of full payment; and KRW 20% per annum from the next day to the day of full payment (the plaintiff selectively claimed damages for tort and return of unjust enrichment).

2. Purport of appeal

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

1. Basic facts

The court's explanation on this part is identical to that of Paragraph 1 of Article 420 of the Civil Procedure Act, and therefore cites this part of the reasoning of the judgment of the court of first instance.

2. The assertion and judgment

A. The plaintiff's ground of claim

Since the Plaintiff acquired the land compensation illegally in collusion with OO, the Defendant is obligated to pay the Plaintiff the sum of the compensation for the land deposited in the passbook in the name of the Defendant as compensation for tort, and the compensation for delay therefrom. If the Defendant’s act is not a tort, the above compensation for the land is that the Defendant acquired the profit without any legal cause. Thus, the Defendant is obligated to return the amount equivalent to the above compensation for the land to the Plaintiff with unjust enrichment.

B. Determination as to the claim for damages

The facts and evidence of the above Paragraph (1) above, the facts and circumstances such as the facts and circumstances revealed by the testimony of EO of EO for nine years, namely, that the defendant continuously acquired a certificate of seal impression, etc. in response to the deposit of EO for the deposit of EO for nine years, and received a certain amount of money in consideration thereof. The amount of five million won received around December 2009 among them is about 1/10 of the land compensation received by EOO around that time. As above, the defendant's act of acquiring a certificate of seal impression, seal, and passbook appears to be an essential element for EO's act of acquiring land compensation. In light of the relationship between the defendant and EO, EO's occupation, reason why EO enters into the above compensation contract, and the reason why the defendant knew that EO's act of obtaining a certificate of seal impression or passbook should have been easily known to the plaintiff by using the above method of EO's act of obtaining the certificate of seal impression or passbook's fraudulent act, the defendant should be found to have been aware of such unlawful acts as the plaintiff's or passbook's act.

Furthermore, with respect to the scope of damages that the Defendant is liable for, the amount of damages suffered by the Plaintiff due to the Defendant’s illegal conduct is equivalent to the amount of land compensation paid to OO through the account in the name of the Defendant. Therefore, barring any special circumstance, the Defendant is liable to pay the Plaintiff the amount equivalent to the compensation for the said land and the damages for delay from the date

On the other hand, even though the plaintiff (the Busan Regional Land Management Office) is an institution in charge of compensation for losses, the plaintiff did not properly prepare and prepare the compensation contract and its accompanying documents prepared by this 00, and did not deposit the land compensation in several times more than nine years at the request of settlement. The plaintiff's negligence contributed to the occurrence or expansion of damages caused by the defendant's tort. Thus, the defendant's responsibility is limited to 60% in consideration of these circumstances.

C. Judgment on the plaintiff's claim for restitution of unjust enrichment

As seen earlier, the defendant's tort liability is recognized as limited liability and the defendant's claim for return of selective claimant's unjust enrichment is examined within the scope related thereto.

The unjust enrichment system imposes an obligation to return the unjust enrichment on the benefiting party based on the ideology of equity and justice in cases where the benefiting of the benefiting party does not have a legal cause, but if the benefiting party actually has no qualitatively accrued, the obligation to return shall not be imposed.

As seen earlier, the fact that the land compensation was deposited in the Defendant’s account back to the instant case and the Defendant’s account was deposited. However, in order for the Defendant to gain profit corresponding to the above land compensation, the circumstance should be acknowledged to deem that the Defendant was a real beneficiary when he actually able to control each of the above money. There is no evidence to acknowledge it. Rather, in light of the circumstances of the instant case as seen in paragraph (1) of the same Article, the Defendant’s account at the Defendant’s name that deposited the above land compensation was used in the management by ○○○. Therefore, it is difficult to view that the Defendant received the above land compensation as a de facto beneficiary, and therefore, the Plaintiff’s claim for this part is without merit.

3. Conclusion

Therefore, the Defendant’s damages incurred by the Plaintiff due to the tort amounting to 74,502,786 won (=124,171,310 wonx 60%) and 24,120,000 won (=40,200,000 x 60%) from April 10, 2002 to 20,54,390 won (=34,240,650 won X60%) from May 15, 2002 to 29, with respect to delay damages amounting to 34,838,396 won (i.e., 49,730,660 x 60%) as to the existence and existence of each of the Defendant’s obligations to pay damages for delay from May 15, 202 to 200 per annum of 25% from the date of performing each of the obligations to pay damages for delay.

Therefore, the part against the defendant who ordered payment exceeding the above recognized amount as to the main claim among the judgment of the court of first instance that partially different conclusions is unfair, and the plaintiff's claim for damages among the selective claims of this case is revoked and dismissed. The defendant's remaining appeal of this case is dismissed as there is no ground for rejection.

Gangwon-do (Presiding Judge)

Efficacy

Oral Dus