Plaintiff (Law Firm International, Attorney Ha Man-young, Counsel for the plaintiff-appellant)

Busan High-gu Office (Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

7, 2003

Supreme Court Decision 2000Du86 Delivered on December 14, 2001

1. The plaintiff's main claim shall be dismissed.

2. The Defendant’s disposition of imposing indemnity of KRW 59,592,580 against the Plaintiff on March 5, 2002 exceeds KRW 28,893,00,00, shall be revoked.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. The total cost of a lawsuit shall be five minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

1. Main claim;

The Defendant’s disposition of imposition of indemnity of KRW 61,240,770 against the Plaintiff on February 13, 1997 shall be revoked.

2. Preliminary claim;

The Defendant’s disposition of imposition of KRW 59,592,580 of indemnity against the Plaintiff on March 5, 2002 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged as comprehensively taking account of the whole purport of the pleadings in each description of Gap evidence 1, Eul evidence 1, Eul evidence 1, 3, 10, 11, Eul evidence 9-1 through 6, Eul evidence 12-1, Eul evidence 17-1, 2, 3, Eul evidence 19-1 through 4.

A. The land of this case was originally owned by Japan and reverted to the Republic of Korea under the provisions of subparagraphs 2 and 33 of the Act on the Improvement of Farmland, the Military Manpower, and Articles 4, 34, and 40 of the Act on the Disposal of Property Belonging to Jurisdiction, and Articles 5 of the first Agreement on the Finance and Property between the Republic of Korea and the United States. From February 19, 1951 to April 28, 1962, the land was converted into the site and was not the land subject to distribution of farmland. Around February 19, 1951 to April 28, 1962, the land of this case was converted into the site and was not the land subject to distribution of farmland. Around February 23, 1959, the land of this case, which had been cultivated as farmland by a regular period, completed distribution upon receiving an application for distribution under the said Act and completed the registration of ownership transfer on the basis of the title of this case on February 23, 1959.

B. On June 4, 1975, the Busan District Court rendered a judgment on December 11, 1980 with respect to the case of demanding cancellation of the ownership transfer registration (No. 75da945, 76Gahap1010), which was filed against the beneficiary beneficiary on the ground that the above registration of ownership transfer was null and void. The judgment became final and conclusive at that time by the appeal period Do, and the Republic of Korea completed the registration of ownership transfer under the name of the beneficiary, based on the above final and conclusive judgment, on October 24, 1996.

C. Meanwhile, the Defendant entrusted the Plaintiff with the management of the instant land by the Republic of Korea, on the ground that the Plaintiff occupied and used the instant land without permission, imposed and notified the Plaintiff of KRW 80,850,150 of the State Property Act from February 15, 1992 to February 14, 1997, pursuant to the provisions of Article 51 of the Enforcement Decree of the State Property Act and Article 56 of the same Act, and the indemnity was imposed from February 15, 1992 to February 14, 197. On September 28, 1998, the said amount was reduced to KRW 74,324,300 on the ground that there was an error in the process of calculating the indemnity, and again, on February 5, 1999, the Plaintiff’s possession period from February 15, 199 to July 8, 196, the said amount was reduced to KRW 61,240,70 (hereinafter “instant disposition”).

D. Accordingly, when the judgment of the party prior to the plaintiff's remanding of part of the plaintiff's winning judgment by asserting that the disposition of this case was unlawful, the plaintiff and the defendant appealed to the Supreme Court, and the Supreme Court reversed and remanded the above judgment on the ground that there was a violation of the procedure of imposing and notifying the compensation, the defendant revoked the disposition of this case ex officio in accordance with the purport of the above remand judgment, and imposed the compensation amount of 59,592,580 won (hereinafter "re-disposition of this case") for the period from June 23, 1992 to July 8, 1996 on the ground that the plaintiff occupied and used the land of this case without permission for the period from June 23, 1992 to July 2, 1996 (hereinafter "re-disposition of this case").

2. Determination

A. As to the main claim

We examine ex officio the legality of a lawsuit.

The Defendant revoked the instant disposition ex officio as indicated in the reasoning of the judgment of remanding the case, and pursuant to the purport of the judgment of remanding the case, and there seems to be any defect in such an ex officio revocation, so the instant disposition was lawfully revoked. Accordingly, the Plaintiff’s lawsuit as to the Plaintiff’s primary claim seeking revocation of the instant disposition has no interest in the lawsuit.

Therefore, the plaintiff's main claim is unlawful.

B. As to the conjunctive claim

(1) The plaintiff's assertion

The plaintiff asserts that the disposition of this case was unlawful for the following reasons, and sought its revocation.

㈎ 행정절차법에 의하면, 행정청은 당사자에게 의무를 과하거나 권익을 제한하는 처분을 하는 경우에는 처분의 사전통지와 더불어 당사자의 의견을 청취하도록 규정하고 있음에도, 피고는 이 사건 재처분을 함에 있어서 위와 같은 절차를 취한 바가 없다.

㈏ 국민의 권익을 침해 내지 제한하는 행정처분의 경우 그 처분고지서에 부과처분의 근거, 요율, 부과대상 토지의 가액 등 형식적 구성요소가 구체적이고 명확하게 기재되어야 함에도, 이 사건 재처분 납입고지서에는 이 사건 토지에 대한 변상금의 산출근거나 요율 등이 표시되어 있지 않다.

㈐ 이 사건 토지에 관하여 대한민국 명의의 소유권이전등기가 마쳐진 위 1.나.항 판시의 1997. 7. 3.까지의 기간 동안에는 이 사건 토지를 국유재산으로 볼 수 없다.

㈑ 이혜숙은 그 명의의 등기가 마쳐진 위 1.가.항 판시의 1962. 3. 9.부터 원고에게 이 사건 토지를 양도한 1989.경까지 이 사건 토지를 소유의 의사로 평온·공연하게 선의·무과실로 점유하여 왔으므로, 이 사건 토지는 적어도 귀속재산처리에관한특별조치법에 의하여 국유재산으로 된 1965. 1. 1.부터 기산하여 등기부취득시효기간인 10년이 경과하였음이 명백한 1975. 1. 1.에는 이혜숙의 취득시효가 완성되었다고 할 것이고, 그렇게 본다면, 원고가 위와 같은 경위로 이 사건 토지의 소유권을 취득한 이혜숙으로부터 이 사건 토지를 양도받은 이상, 원고는 이 사건 토지를 점유할 정당한 권원이 있으므로, 원고를 이 사건 토지의 무단점유자라고 하여 변상금을 부과할 수는 없다.

㈒ 뿐만 아니라, 이혜숙의 점유를 승계한 원고도, 이 사건 토지를 소유의 의사로 평온·공연하게 점유하여 왔으므로, 적어도 이 사건 토지가 국유재산으로 된 1965. 1. 1.부터 기산하여 20년이 경과하였음이 명백한 1985. 1. 1.경에는 취득시효가 완성되어 이를 시효취득하였다고 할 것이다.

Even if the land of this case is not recognized as state property, the Plaintiff is a bona fide possessor, and thus, the Plaintiff is not obligated to return the benefits obtained from the possession.

㈓ 위 각 취득시효 주장이 받아들여지지 않는다고 하더라도, 다음과 같은 이유로 원고를 이 사건 토지의 점유자라고 할 수 없다. 즉, 원고는 이혜숙의 대리인으로 이 사건 토지를 임대하는 등 그 관리만 하여 왔을 뿐이어서, 이 사건 토지의 점유자가 아닌 점유보조자에 불과하고, 원고가 달리 이 사건 토지를 점유하여 사용·수익한 바는 없다.

㈔ 신의칙 및 금반언의 원칙

1) The Defendant imposed property tax on the Plaintiff on the instant land building, and the Plaintiff paid property tax on the Defendant’s belief that the said property tax would be paid upon the payment of the property tax on the subsequent building. However, the Plaintiff’s refusal of the payment of compensation and imposition of compensation to the Plaintiff violates the good faith and the good faith and the good faith and the good faith.

2) The period of extinctive prescription for the acquisition of the registry of the right to benefit was completed, and the plaintiff can invoke it as the third acquisitor. Thus, even if the plaintiff pays the indemnity imposed by the defendant, the compensation paid by the defendant can be returned to the plaintiff as unjust enrichment. The right to benefit is to return the returned indemnity to the plaintiff. Thus, the re-determination of this case goes against the good faith principle.

3) The Defendant has received the property tax from the Plaintiff and seized the instant land on the grounds of tax delinquency under the National Tax Collection Act and subordinate statutes, and changing the attitude and attitude to impose indemnity is contrary to the good faith principle.

㈕ 피고가 정병태, 박종훈, 소순조에게 지급한 건축물 보상금 합계 25,130,000원은 이 사건 토지상의 건축물에 대한 보상금이므로, 이 사건 토지의 점유자가 원고라는 피고의 주장에 의하면, 위 보상금은 원고에게 지급되어야 하는 것이므로, 이 사건 토지에 부과된 변상금에서 위 보상금 상당액을 공제하여야 한다.

㈖ 피고는 원고가 1992. 6. 23.부터 1996. 7. 8.까지 이 사건 토지를 무단으로 사용·수익하였다는 이유로 이 사건 재처분을 하였으나, 이 사건 재처분은 위 1996. 7. 8.부터 5년이 경과하여, 원고의 변상금 납부의무가 이미 시효로 소멸한 이후에 이루어졌음이 역수상 분명하다.

(2) Relevant statutes

The entries in the attached Table-related statutes are as follows.

(3) Determination on the assertion

㈎ 위 (1)㈎, ㈏항 주장 부분

1) Facts

The following facts are recognized, either in dispute between the parties or in full view of the whole purport of the pleadings, as follows: evidence Nos. 1, 2, 15, 16, 18, and evidence Nos. 1, 2, 3, 18-1 through 4 of evidence Nos. 14-1, 2, 3, and 18-1.

A) On January 25, 2002, after the judgment of remanding the instant case, the Defendant revoked the previous disposition of imposition of indemnity on the instant land, and subsequently decides to impose indemnity, and, prior to the instant disposition, notified the Plaintiff of the content of advance notice of imposition of indemnity pursuant to Article 52-2 of the Enforcement Rule of the State Property Act, “where there is an objection to the contents of advance notice of imposition of indemnity pursuant to Article 51(1) of the State Property Act, the Defendant shall submit a written opinion in the form attached until the 19th of the same month” and “calculated content” of the land, which is the basis for calculating the amount of indemnity, including the officially announced land value, applicable rate, and imposition period of indemnity.

B) On March 5, 2002, the Defendant revoked the instant disposition on March 5, 2002 after the date when the written opinion as indicated in the instant paragraph was not timely filed, and notified the “calculated Contents” as indicated in the instant sub-dispositions. However, the Plaintiff refused to accept the instant disposition, and the instant disposition was sent public notice as of March 16, 200.

2) According to the facts stated in the above 1.3 and the above 1., it is reasonable to view that the defendant provided an opportunity to present opinions to the plaintiff in advance through the prior notice, and that the grounds for calculating the compensation was specified and notified in the notice of payment and the prior notice.

따라서, 원고의 위 (1)㈎, ㈏항 주장은 모두 이유 없다.

㈏ 위 (1)㈐항 주장 부분

The fact that the land of this case was originally owned by Japan was the property devolving upon its original possession is as set out in the above 1. A. The property devolving upon its original possession was national property free of charge under Article 5 of the Addenda of the Act on Special Measures for the Disposal of Property Belonging to the State (amended by Act No. 1346 of May 29, 1963) and Article 5 of the Addenda of the Act on Special Measures for the Disposal of Property Belonging to the State was not concluded until December 31, 1964. Thus, there is no evidence to recognize that the sales contract was concluded until then on the land of this case which is the property devolving to the State. Thus, the land of this case was nationalized regardless of its ownership transfer on January 1, 1965

따라서, 원고의 (1)㈐항 주장은 이유 없다.

㈐ 위 (1)㈑항 주장 부분

The plaintiff's assertion is based on the above 1.B. case of the above 1. case of the above 1.B. decision which became final and conclusive as the loss of the beneficiary's accommodation (the date of October 16, 1980 or November 20, 1989) and constitutes a successor after his succession to his status by taking over the land of this case from the beneficiary's accommodation in around 1989. Since res judicata effect of a final and conclusive judgment and it extends to the parties as well as the successor after the closing of argument. Thus, the plaintiff's assertion or defense based on the reasons that the successor could have been present and submitted before the closing of argument after the closing of argument is interrupted by res judicata effect of the final and conclusive judgment, and thus, it cannot be said to be contrary to the contents of the final and conclusive judgment, and if the legal relationship of the previous suit becomes the preemptive legal relationship of the subsequent suit even if the subject matter of the lawsuit is not identical, the judgment that contradicts the res judicata effect of the judgment before the subsequent suit cannot be judged in terms of the

Therefore, it is reasonable to view that the Plaintiff, as a successor after the closing of argument in this case as a party to this case, could not assert the defense of the acquisition of the registry of this case as to the land in this case of this case of this case of this case where the “whether the registration of transfer of ownership under the name of beneficiary”, which is the contents of the judgment in this case, is a premise to determine the legitimacy of the disposition of imposition of indemnity of this case, and constitutes a preemptive legal relationship.

따라서, 원고의 (1)㈑항 주장은 이유 없다.

㈑ 위 (1)㈒항 주장 부분

1) As to the completion of the prescription period for the Plaintiff’s possession, the Plaintiff asserted the prescription period for the acquisition of possession on the premise that he was succeeded to the possession of the beneficiary (the Plaintiff’s commencement from around 1989, with its own possession commenced, the period of prescription shall not exceed 20 years), but the possession of the beneficiary shall be deemed to have been converted into the possession of the beneficiary from the time when the judgment against the judgment against the Plaintiff in the above 1.B became final and conclusive, and thus, the Plaintiff’s possession succeeded to the possession has not satisfied the requirements for the prescription for the acquisition of possession, barring special circumstances.

2) 다음으로 원고의 점유가 선의인지 여부에 관하여 보면, 원고는 전 점유자인 이혜숙의 점유를 아울러 주장하고 있고, 이러한 경우 전 점유자인 이혜숙의 이 사건 토지의 점유에 관한 하자, 즉 악의 및 타주점유도 승계하므로, 원고의 점유는 선의의 점유라 할 수 없을 뿐만 아니라, 아래 ㈒항 판시와 같이 원고가 정병협에게 이 사건 토지의 일부를 임대하면서 그 소유자인 국가로부터 그 토지부분에 대한 변상금을 부과 받을 수 있음을 예정한 점 등에 비추어 보면 원고는 이 사건 토지의 점유개시시부터 이를 점유할 권원이 없음을 알고 있었다고 봄이 상당하다.

3) 따라서, 원고의 (1)㈒항 주장도 모두 이유 없다.

㈒ 위 (1)㈓항 주장 부분

1) The following facts are acknowledged in the absence of dispute between the parties or in full view of the whole purport of the pleadings in the statements in Gap evidence 3 and Eul evidence 4-1, 2, and 7.

A) Even after the judgment against the above 1.B. ruling, the right of this case was transferred to the Plaintiff by leasing the land to another person. Around 1989, the right of possession and use of the land of this case was transferred to the Plaintiff.

B) On August 18, 1989, the Plaintiff: (a) leased 65 square meters from the land of this case to Jeong Byung-gu at a lease rate of one year; (b) lease deposit of 15,000,000 won; and (c) monthly rent of 150,000 won (However, on the lease agreement, the Plaintiff agreed that the Plaintiff, a lessor, who is the lessor, shall be liable and paid for the lease of this case, after the renewal of the lease agreement on April 18, 1991; (b) the lease period was extended until August 18, 1996; (c) the monthly rent of 300,000 won; and (d) the Plaintiff, a lessor, who is a lessor, shall be liable for the lease of this case at a lease rate of Korea.

C) After that, the Defendant obtained authorization of the implementation plan for the urban planning project for the implementation of the project for the expansion of war prisoners with respect to the land including the instant land, and paid 5,357,000 won as removal compensation to the sick and Mickia who occupied and used the steel framed framed Factory, etc., which is the building on the above ground, due to the co-ardinant co-inheritors on July 19, 196, and included the occupied portion in the road expansion work.

2) First of all, in full view of the circumstances revealed in the facts stated in the above Paragraph 1, the Plaintiff occupied and used 65 square meters out of the land of this case from August 18, 1989 to July 19, 196 by leasing it to the sick and Disease Cooperative.

3) Next, we examine whether the remaining part of the land in this case excluding the 65 square meters of the decision in paragraphs (1) and (2) can be deemed to have been possessed by the plaintiff.

A) First, according to the fact that the Plaintiff received the right of interest to the land of this case from the right of interest to the land of this case from the right of interest to the land of this case, the fact that the Plaintiff received the right of interest to the land of this case from the right of interest to the right of interest to the land of this case is as stated in the above Paragraph 1, and according to the evidence Nos. 4-3 through 6, the Defendant is recognized to have imposed the property tax,

B) However, according to the statement 8 and 9 of evidence Nos. 4-8 and 4-9, it is recognized that the plaintiff occupied and used the remaining part of the above land during the period of calculating the amount of compensation as stated in the judgment of No. 4-8 and No. 9, and that he was directly paid the removal compensation on August 22, 1996 and July 9 of the same year in the process of compensating for the removal of the above ground building in accordance with the extension work of prisoners of war as stated in the preceding paragraph (1)-C). However, in the case of this case where there is no evidence by which the situation of No. 4-8 and No. 13, the statement of evidence No. 13, the witness testimony alone cannot be readily concluded that the plaintiff occupied and used the remaining part of the above land during the period of calculating the amount of compensation, and there is no other evidence supporting that the plaintiff occupied and used the remaining part of the above land.

Therefore, it cannot be deemed that the Plaintiff occupied and used the remainder except the above 1) and 65 square meters in the judgment of the court below from June 23, 1992 to July 8, 1996, which is the period for calculating the indemnity of this case, from June 23, 1992 to the calculation of indemnity of this case.

4) 그러므로, 원고의 위 (1)㈓항 주장은 위 1), 2)항 판시의 65평을 제외한 나머지 부분에 한해서 이유 있다.

㈓ 위 (1)㈔항 주장 부분

1) First, there is no evidence to acknowledge the fact that the Defendant told the Plaintiff to pay the removal compensation for the building on the instant land, and even if the Defendant said the horses, the instant re-disposition cannot be deemed as contrary to the principle of trust or the principle of speech on the ground that it is irrelevant to whether to pay the compensation or not.

2) 다음, 이혜숙이나 원고가 등기부취득시효를 주장할 수 없음은 위 ㈐항 판시와 같고, 이혜숙은 위 1.나항 판시의 패소판결 확정 후에는 악의의 점유자로서 과실수취권이 없으므로, 이혜숙이 피고로부터 원고에게 부과한 변상금을 부당이득으로 반환 받을 수 있음을 전제로 하는 신의칙 주장은 더 나아가 살필 필요 없이 이유 없다.

3) Finally, solely on the fact that the Defendant seized the instant land as to the delinquency in the payment of the property tax of this case and the fact that the Defendant imposed property tax on the Plaintiff on the building on the instant land, it cannot be said that the beneficiary or the Plaintiff expressed a public opinion, such as the State or the Defendant’s recognition, that there was a legitimate title to possess the instant land, which is State property. Thus, even if the Defendant imposed the said property tax, it cannot be said that the Defendant did not go against the good faith principle.

4) 따라서, 원고의 (1)㈔항 주장은 모두 이유 없다.

㈔ 위 (1)㈕항 주장 부분

The Defendant’s compensation paid to Jeong Byung-hun, Park Jong-hun, Soon, etc. is the compensation for the building on the instant land, and the land itself is not related to the instant land. Therefore, the validity of the instant re-disposition cannot be asserted based on the aforementioned circumstances.

따라서, 원고의 (1)㈕항 주장도 이유 없다.

㈕ 위 (1)㈖항 주장 부분

Article 98 of the Budget and Accounts Act provides that a notice of payment under the provisions of Acts and subordinate statutes provides for the grounds for the interruption of prescription, and the interruption of prescription under such notice of payment does not lose even after the revocation of the disposition of payment based on the notice of payment (see Supreme Court Decision 98Du19933, Sept. 8, 200). In this case, it is reasonable to deem that the period of prescription interrupted does not run as long as an appeal suit against the notice of

Therefore, the statute of limitations on the indemnity of the land of this case was suspended by the notice of payment of February 13, 1997, and thereafter, even if the appeal against the instant disposition was reversed and remanded by the Supreme Court and the disposition of this case was revoked on March 5, 2002, while the appeal against the instant disposition was pending in this court, the re-disposition of this case was conducted within the lawful period of imposition.

따라서, 원고의 (1)㈖항 주장도 이유 없다.

(4) Justifiable indemnity

원고가 국유재산인 이 사건 토지 중 65평을 1992. 6. 23.부터 1996. 7. 8.까지 대부 또는 사용·수익허가를 받지 아니하고 이를 점유하여 사용·수익하여 온 사실은 위 (3)㈒항 판시와 같고, 을6호증의 3의 기재에 의하면 이 사건 토지의 연도별 공시지가는 별지 계산서 기재 과세시가표준액 또는 공시지가란 기재와 같은 사실을 인정할 수 있는바, 위 토지부분에 대한 위 기간동안의 변상금을 국유재산법 제25조의2 제1항 , 같은 법 시행령 제56조 , 제26조 제1항 , 제2항 , 제27조의2 의 각 규정에 따라 산정하면, 그 변상금은 별지 계산서 기재와 같이 합계 28,893,004원이 된다.

Therefore, the part exceeding KRW 28,893,004 of the disposition of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's lawsuit as to the main claim shall be dismissed, and the part of the conjunctive claim as to the revocation exceeding the reasonable indemnity of 28,893,004 won as stated in the above 2.B. (4) of the second disposition of this case among the conjunctive claims shall be accepted, and the remaining conjunctive claims shall be dismissed as they are without merit. It is so decided as per Disposition.

Judges Kang Jin-jin (Presiding Judge)