2019Da301340 Land Delivery

Korea Rail Network Authority

Law Firm East (Attorney Choi Woo, Kim Woo, Lee Jong-hee, Lee In-bok, Counsel for the defendant-appellant)

A

Attorney Park Dong-dong, Counsel for the defendant-appellant

Busan District Court Decision 2019Na54405 Decided November 27, 2019

April 29, 2020

The part of the judgment of the court below on the claim for removal shall be reversed, and the corresponding part of the judgment of the court of first instance shall be revoked, and the lawsuit

The remaining appeals are dismissed.

80% of the total litigation costs shall be borne by the defendant, and the remainder by the plaintiff.

1. The defendant's grounds of appeal are examined.

Based on its stated reasoning, the lower court determined that the Defendant did not have a legitimate title to possess each of the instant railway sites.

In light of the relevant legal principles and records, the lower judgment is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err and adversely affected the judgment.

2. We examine ex officio the lawfulness of the part requesting removal of the lawsuit in this case.

A. Article 74 of the State Property Act provides that “When a person occupies State property or installs facilities thereon without justifiable grounds, the head of a central government agency, etc. may remove such facilities or take other necessary measures by applying mutatis mutandis the Administrative Vicarious Execution Act.” Thus, where the procedure for vicarious administrative execution is recognized, it is not allowed to seek removal of facilities by means of civil procedure (see, e.g., Supreme Court Decision 2015Da242375, Jul. 11, 2017).

B. The Plaintiff asserts that the Defendant should remove the instant building without any title. However, it is reasonable to deem that the Plaintiff, the managing authority of each of the instant railway sites, acting on behalf of the Minister of Land, Infrastructure and Transport, could remove the instant building built on each of the instant railway sites, which is a State property, by means of administrative vicarious execution under Article 74 of the State Property Act, by means of administrative vicarious execution, pursuant to Article 74 of the State Property Act. Nevertheless, the lower court determined that the instant claim was based on the premise that there was a benefit of protecting the rights in the part of the instant claim for removal. In so doing, the lower court erred by misapprehending the legal doctrine

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for removal is reversed, and this part is sufficient for this court to directly render a judgment. Accordingly, the part regarding the claim for removal among the judgment of the court below is reversed, and the corresponding part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed, and the remaining appeal is dismissed, and the total costs of the lawsuit are borne by the losing party. It is so decided as per Disposition by

Justices Kim Jae-soo

Justices Kim Jong-il

Chief Justice Lee Dong-won

Justices Park Il-san