Plaintiff 1 and three others (Attorney Yoon-sung et al., Counsel for the plaintiff-appellant-appellee)

Seoul High Court Decision 201Na1448 delivered on May 1, 201

March 24, 2015

Seoul Western District Court Decision 2012Ra46487 Decided October 31, 2013

1.The judgment of the first instance shall be modified as follows:

A. Of Article 2-2(b) of the Seoul Western District Court Decision 2007Gadan28874, the part ordering the Plaintiffs to pay the fixed amount from March 24, 2015 is changed to “The Defendant shall pay to the Plaintiffs the amount calculated by dividing the amount of KRW 5,626,00 per share in the separate sheet by the Defendant’s road closure for 2/3 square meters from March 24, 2015 to March 24, 2015, from March 24, 2015, by the date of completion of possession due to the Defendant’s road closure or the date of loss of the Plaintiffs’ ownership.”

B. The plaintiffs' remaining main claims are dismissed.

2. 1/2 of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

1. Main Claim: (a) the Defendant changed the amount of KRW 6,288,155 per month from the day following the delivery of a copy of the complaint to June 30, 2014, and the amount of KRW 6,52,920 per month from July 1, 2014 to July 1, 2014, by dividing the amount of KRW 6,52,920 per month by shares in the separate sheet of equity.”

2. Preliminary Claim: The Defendant shall remove the road packaging facilities installed on the road 1489 m2,00 square meters in Nam-si, Namyang-si. The Defendant shall pay to the Plaintiffs the amount calculated by dividing the amount of KRW 4,650,120 each month from the day following the date of this decision until the completion of the above removal by shares in the separate sheet.

1. Basic facts

A. As to the land of this case (hereinafter “instant land”) at Namyang-si, Namyang-si, a road of 1489.3 square meters ( Address omitted), each registration of ownership transfer has been completed in proportion to the shares of Plaintiffs 1364/3861, Plaintiffs 2, and 3 respectively, Plaintiffs 121/3861, Plaintiffs 4968/3861, and Defendants 1287/3861.

B. From June 4, 2004, the Defendant provided the entire land of this case as a road.

C. Meanwhile, in around 2007, the Plaintiffs asserted that the Defendant occupied and used the entire share of the instant land by providing it as a road in excess of the ownership share of the instant land. At the time the instant land was incorporated into a road, the Plaintiffs filed a lawsuit seeking damages equivalent to the rent or return of unjust enrichment premised on the fact that the actual status was “site” (hereinafter “former lawsuit”). In the previous lawsuit, the Plaintiffs ordered the deceased Nonparty 1’s litigant to pay unjust enrichment according to their inheritance shares against the deceased Nonparty 1, but on March 25, 2011, Plaintiff 4 transferred the entire share of the deceased Nonparty 1 to the deceased Nonparty 1 due to consultation division inheritance. Accordingly, in this judgment, Plaintiff 4 used all the litigant Nonparty 1’s litigant in the previous lawsuit to refer to the deceased Nonparty 1’s litigant 1’s litigant.

D. On June 12, 2009, the court of the first instance rendered a judgment ordering the Defendant to pay the paid-in capital by citing part of the Plaintiffs’ selective claims for return of unjust enrichment with the purport that the current status at the time of the incorporation of the instant land into the road on October 3, 2007 as “road” and the monthly rent equivalent to the share of the Plaintiffs among the instant land was KRW 1,902,80 per month. The Plaintiffs appealed against the above judgment and filed an appeal with Seoul High Court 2009Na61997, but omitted the purport of appeal as to the claim for return of unjust enrichment after October 3, 2007 for the share of the Plaintiffs out of the instant land.

E. On September 15, 2010, the appellate court rendered a judgment on the instant case. On October 3, 2007, with respect to the claim for return of unjust enrichment before October 3, 2007, the appellate court of the previous lawsuit, citing the Plaintiffs’ appeal on the premise that the land was “site” at the time when the land was incorporated into the road. On October 3, 2007, the appellate court acknowledged the Defendant’s unjust enrichment amount after October 3, 2007, i.e., for the legitimate rent corresponding to the share ratio of the Plaintiffs among the instant land, KRW 5,708,40 on the premise that the status of the instant land was “site”, but did not revoke or alter the first instance judgment on this part on the ground that

F. Both the Plaintiffs and the Defendant were dissatisfied with the above appellate judgment and filed a final appeal with the Supreme Court Decision 2010Da83137, but on January 27, 2011, the decision was rendered to dismiss both the final appeals (hereinafter referred to as the “decision of the first instance court of the previous lawsuit that ordered the Defendant to pay KRW 1,902,80 per month until the date when the Plaintiffs lost their ownership).

G. The monthly rent on the premise that the present status of the instant land is a site is KRW 8,439,000 as of November 14, 2012 when a duplicate of the instant complaint was served on the Defendant (the rent corresponding to the share ratio of the Plaintiff is KRW 5,626,00,000).

[Ground for Recognition: Facts without dispute; entry of Gap evidence 1-5; Gap evidence 2; appraiser non-party 2's appraisal result; purport of whole pleadings]

2. Judgment as to the main claim

A. Determination on this safety defense

(1) The Defendant asserts that, even though the judgment of installment fund of this case became final and conclusive on the unjust enrichment regarding the possession and use of the land of this case, the lawsuit of this case also asserts that it is unlawful because it goes against the res judicata of the final and conclusive judgment of the previous suit or it does not meet

(2) The claim of this case is a claim for the change of periodical fund under Article 252 of the Civil Procedure Act, and the plaintiffs seek the part not falling under the cited money, rather than seeking the money which was cited in the final judgment in the previous suit. Accordingly, according to whether there was a special circumstance undermining the equity between the parties due to a change of circumstance, etc., the decision on the claim of this case must be made on the merits of the plaintiffs, and the above circumstance is merely a ground for rejecting the plaintiffs' claims, and it does not constitute a ground for denying the plaintiffs' claims. Accordingly, the defendant's defense on the principal safety

B. Judgment on the merits

(1) While the amount of the periodical fund set forth in the judgment of the instant periodical fund is KRW 1,902,800 per month, the Plaintiffs have clearly changed the circumstances that form the basis for calculating the amount of the periodical fund after the judgment became final and conclusive, and seek amendments to the judgment of the instant periodical fund, such as the primary purport of the claim.

(2) Subsequent to a final and conclusive judgment ordering the payment of periodic payments, when a special circumstance occurs which greatly infringes on equity between the parties, as the circumstances forming the basis for computing such payments significantly changed, the parties to such judgment may institute a lawsuit claiming to change the amount of periodic payments to be paid in the future (Article 252 of the Civil Procedure Act).

(3) First of all, the standard for calculating the amount of unjust enrichment for the instant land is to be seen as what is the standard for calculating the amount of unjust enrichment equivalent to the rent for the land occupied and used by the State or a local government as a road. The basic price of land to calculate the amount of unjust enrichment for the land actually used by the State or a local government as a road is to be determined based on the aforementioned evidence: (a) where the State or a local government has occupied or actually needed construction as a road by the road management authority through the construction of a road under the Road Act, etc.; and (b) where the State or a local government occupies a road as a de facto controlling entity, it shall be deemed limited to the road; and (c) where the State or a local government occupies a road only after the land is actually not actually used for the general public traffic, it shall be appraised according to the actual condition at the time of incorporation into the road, without considering the circumstances incorporated into the road (see, e.g., Supreme Court Decision 2001Da60866, Apr. 12, 2002).

(4) The purport of Article 252 of the Civil Procedure Act, which is to seek a change in a judgment ordering the payment of periodic funds, is to withdraw the res judicata system for legal stability when special circumstances arise that significantly infringe on equity between the parties, as the realization of periodic funds is based on the future passage of time, and the circumstances forming the basis for calculating the amount of periodic funds significantly changed depending on the lapse of time, and to promote fairness between the parties by re-fixing the amount, etc. of periodic funds.

As of the time of the closing of argument in the appellate court, the judgment of this case evaluated the amount of unjust enrichment equivalent to the rent for the plaintiffs' share among the land in this case as the site, and ordered the payment of KRW 1,902,80 as the monthly rent by evaluating the land in this case as a road at the first instance court, and ordering the payment of KRW 5,708,40 as the monthly rent by evaluating the land in this case as a road. The judgment of this case is maintained by the first instance court's decision as to this part in accordance with the principle of prohibition of disadvantageous change as the plaintiffs did not

(5) The change in circumstances, which form the basis for calculating the amount of money in the judgment of a periodical fund, is deemed unfair from the perspective of fairness, along with the lapse of time, to maintain a periodical payment by changing the financial evaluation of the factual relations itself or the factual relations. Thus, even if there is no change in the factual relations objectively, in a case where maintaining the judgment of a periodical fund is deemed unfair from the perspective of fairness and justice because the factual relations, which should be changed between the parties, are not changed along with a considerable period of time, even if there is no change in the factual relations, and thus, it constitutes a significant change in circumstances under Article 252 of

According to the Constitution, all citizens’ property rights are guaranteed by the State and local governments, and the use of property rights due to public necessity should be paid with reasonable compensation. However, the Defendant did not deliver the land of this case to the Plaintiffs after a considerable period of time after the judgment of Periodical Fund became final and conclusive, but did not take any measures such as compensating for a reasonable amount, accepting, and using the land as a road. This does not change the factual relations expected to be changed along with the passage of time. In a case where the Defendant takes measures for use and makes a reasonable compensation, the amount is KRW 5,626,00, the monthly rent at the time of the claim. In light of all the above circumstances, such as the fact that there is a significant difference between 1,902,80 won and 1,900 won per month of Periodical Fund judgment of this case, the judgment of Periodical Fund of this case can be deemed to have been significantly changed due to the fact that the Defendant, after its final and conclusive compensation for shares due to the Plaintiffs’ use of the land of this case, and that the legal measures were taken to use of the road of this case.

(6) Therefore, from March 24, 2015 to March 24, 2015, which is the date of the closing of argument in the instant case, the part ordering the payment of fixed funds from March 24, 2015 of the first instance court judgment (Seoul Western District Court Decision 2007Da28874 delivered on March 24, 2015) of the previous lawsuit shall be changed to “the Defendant shall pay to the Plaintiffs the amount calculated by dividing KRW 5,626,00 per share out of the instant land from March 24, 2015 to the date of the completion of possession due to the closure of the road by the Defendant or the date of loss of the Plaintiffs’ ownership.” Since the part exceeding the above amount among the Plaintiffs’ primary claims, it shall be dismissed on the grounds that

3. Judgment on the conjunctive claim

A. The plaintiffs are majority equity right holders holding 2/3 shares of the land of this case, and the defendant, even though only 1/3 shares are owned, provided the whole land of this case as roads without the plaintiffs' consent. As management methods of jointly-owned property pursuant to Article 265 of the Civil Act, the defendant is entitled to pay the amount calculated by the ratio of KRW 4,650,120 per month to the defendant as indirect compulsory performance to ensure the whole removal of the road packaging facilities of this case and its implementation.

B. It is reasonable to deem that the conjunctive claim of this case was filed in preparation for a case where the requirements for the alteration of the judgment of the periodical payment of this case are not satisfied. As long as the judgment of the periodical payment of this case constituted the requirements of Article 252(1) of the Civil Code, the conjunctive claim part of the conjunctive claim is not separately determined even if some of the primary claim

4. Conclusion

Therefore, the plaintiffs' primary claim is justified within the above scope of recognition, and the remaining claims shall be dismissed without merit. Since the judgment of the court of first instance differs from this conclusion, it is unfair to revise the judgment of the court of first instance as stated in Paragraph 1 of the Disposition, and it is so decided as per Disposition.

[Attachment Succession List of Inheritance Shares]

Judges Lee In-bok (Presiding Judge)