2017Gudan71669 Revocation of Disposition of Imposing indemnity

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The head of Seodaemun-gu Seoul Metropolitan Government

November 7, 2017

November 21, 2017

1. The Defendant’s imposition of KRW 15,440, 520 of the indemnity against the Plaintiff on August 20, 2017 is revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

The Defendant: (a) owned a building without permission on the ground that the Plaintiff occupied the Seodaemun-gu Seoul Metropolitan Government ○○○○○○○ - ○○○ ○○○○ (hereinafter referred to as “the instant unauthorized building”); (b) from March 21, 2013 to August 28, 2017, such as Om, in Seomun-gu Seoul Metropolitan Government ○○ ○○ - ○○ ○ - from among ○ ○ ○ ○ ○○ ○○ ○ ○○, Seoul, the Defendant without permission; (c) occupied the Om (hereinafter referred to as “instant land”) out of the ○ ○ ○○ Om2, 2017, on August 20, 2017, imposed indemnity of KRW 15,440,520 (hereinafter referred to as “instant disposition”).

【Uncontentious facts, Gap’s evidence No. 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff was registered in the ledger of unauthorized Building that the Plaintiff purchased the instant unauthorized building from △△△△△△, it is merely to secure the Plaintiff’s claim against △△△△△, not to actually use and profit from the instant unauthorized building. Therefore, the instant disposition taken in another pre-sale is unlawful.

(b) Related statutes;

Public Property and Commodity Management Act

Article 81 (Collection of Indemnity)

(1) The head of a local government shall collect an amount equivalent to 120/100 of the usage fees or rent of public property or commodities (hereinafter referred to as "compensation") from a person who has used, profit from, or has occupied public property or commodities without permission for use or profit-making or loan contract (including cases where he/she continues to use, profit from, or occupies public property or commodities without permission for use or profit-making or loan contract after the expiration of the period of permission for use or profit-making or loan contract; hereinafter referred to as "unauthorized occupancy"), as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport: Provided, That no indemnity shall be collected in any of the following cases:

1. Where the property of a person (including his/her heir and his/her general successor) who has paid a reasonable consideration to believe that the name holder in the register or other public record is a legitimate owner and has acquired such right is registered in the form of public property or goods after the acquisition thereof, and is reverted to a local government;

2. Where the State or local governments have them possess, use or profit from public property or commodities for a certain period due to inevitable reasons, such as countermeasures against disasters, etc.

C. Determination

1) According to Article 81(1) of the Public Property and Commodity Management Act, in order for the Defendant to impose indemnity on the Plaintiff, it shall be deemed that the Plaintiff has to use and profit from the instant land, or possess it on the land owned by another person without authority, and that the Plaintiff gains profit equivalent to the rent for the land owned by another person and thereby causes damages to the other person as a result, barring any special circumstance, barring any special circumstance, it shall be deemed that the Plaintiff actually occupies and uses the relevant building, etc., and the site for the building, etc. shall not be deemed that the owner of the relevant building, etc. occupies and uses the relevant building, etc. (see, e.g., Supreme Court Decision 2011Du10348, Jul. 24, 2014). For the Defendant’s instant disposition lawful, the Plaintiff should be the owner of the instant building without permission.

On the other hand, the ledger of an unauthorized building is prepared and kept for administrative convenience for the maintenance of unauthorized buildings, and the effect of changing rights to an unauthorized building upon entry in the ledger results in or disclosing it to the public. Thus, the mere fact that a registration was made on the ledger of an unauthorized building as an owner does not have the effect of acquiring the ownership or other rights to the unauthorized building or presumed as a right holder (see, e.g., Supreme Court Decisions 91Da29347, Feb. 14, 1992; 92Da36274, Jan. 26, 1993).

2 ) 위 법리에 갑 제1 , 5 , 6호증 ( 가지번호 붙은 호증은 가지번호 포함 ) 의 각 기 재와 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정들 , 즉 △△△과 원고의 배우자 ○ 사이에 작성된 2013 . 3 . 25 . 자 지불각서 ( 갑 제1호증의 1 ) 에 ' △△△이 2013 . 12 . 30 . 까지 소소에게 5 , 700만 원을 지급하고 , 이에 대한 담보로 이 사건 무허가건물을 이전하며 , 위 돈을 모두 지급할 경우 위 무허가건물을 다시 △△△에게 이전한다 ' 는 내용이 기재되어 있는 점 , ●●●이 2008 . 7 . 6 . ■■■에 게 이 사건 무허가건물을 임대한 점 , 이 사건 무허가건물은 ○○동제 6주택재건축 정비사업조합의 사업구역에 포함되어 있는데 , 위 조합은 2014 . 3 . 3 . ●●●으로부 터 위 무허가건물을 매수한 △△△에게 매도청구권을 행사한 점 ( 서울고등법원 2015 . 5 . 29 . 선고 2013나○○○○○ 판결 참조 ) 등 여러 사정을 종합하면 , 이 사 건 무허가건물의 소유자는 △△△로 판단되고 , 원고가 무허가건축물대장에 소유자 로 등재되어 있다는 사정만으로 위 인정사실을 뒤집기에 부족하다 .

Therefore, the plaintiff's assertion is justified.

3. Conclusion

The plaintiff's claim is justified and it is so decided as per Disposition.

Judge Song Byung-hun