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(영문) 서울고등법원 2016.11.17 2016누49244
변상금등부과처분취소
Text

1. Upon the Plaintiff’s request for exchange change at the trial court, the Defendant’s indemnity against the Plaintiff on August 30, 2013.

Reasons

1. Details of the disposition;

A. From around 1994 to 2004, the Plaintiff obtained permission to occupy and use the river site B and C (hereinafter referred to as the “instant two parcels”) from the Defendant, which is a State-owned land from the Defendant, and occupied and used them.

B. On December 31, 2004, the Defendant imposed a disposition on the Plaintiff on August 30, 2013, imposing KRW 109,790,000 of indemnity (area for occupancy and use: 345 square meters, period for imposition: 345 square meters from July 1, 2008 to June 30, 2013; period for payment: October 30, 2013) on the ground that the Plaintiff continued to occupy the instant real estate without obtaining a new permit for occupancy and use after the period for occupation and use of rivers expires.

(hereinafter “instant disposition”). C.

As the Plaintiff did not pay the indemnity within the above payment period, the Defendant urged the Plaintiff to pay KRW 109,790,000 for the above indemnity and KRW 3,293,700 for its additional dues. On May 22, 2015, the Defendant notified the Plaintiff of the second demand for the payment of KRW 109,790,000 for indemnity and its additional dues 27,008,340 for tort and the second demand for the restoration to its original state.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion did not have received from the defendant the documents such as the notice of demand for payment of indemnity (Evidence No. 1) and did not have received the notification of the disposition of this case. After receiving the public notice of demand for payment of indemnity, the plaintiff raised an objection against the defendant with the knowledge of the disposition of this case.

Therefore, the instant disposition is null and void in violation of Article 24 of the Administrative Procedures Act and Article 28 of the Framework Act on Local Taxes.

Even if the Plaintiff was notified of the instant disposition, the Plaintiff was aware that the area of the instant real estate occupied by the Plaintiff from around 1994 was 471m2 and paid user fees accordingly. However, the Plaintiff knew that the area occupied by the Plaintiff was less than 345m2 around the end of 2004.

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