Whether a lawsuit seeking return of unjust enrichment under the civil law may be brought against an illegal occupant of any State property in addition to the exercise of the right to impose and collect indemnity under Article 51(1), (4), and (5) of the former State Property Act (affirmative)

[Majority Opinion] (A) The imposition of indemnity against an illegal occupant of State property is an administrative disposition conducted in the superior position of the public authority, and the right to collect indemnity based on the imposition of indemnity is a right under the public law, whereas the right to claim restitution of unjust enrichment under the civil law is a judicial claim held as the owner of State property. In addition, the amount of indemnity differs from the amount of unjust enrichment, which is equivalent to 120% of the loan or usage fees, which serves as the basis for calculating unjust enrichment. The purpose of imposing and collecting indemnity for the increased amount of indemnity lies in realizing the public interest, such as efficient preservation and management of State property, beyond the recovery of benefits arising from the use or profit of State property. Furthermore, even if the State property is occupied, used or profit-making without the loan or use or profit-making permission, but the imposition of indemnity is not possible, the requirements for imposing and collecting indemnity

As such, the right to impose and collect indemnity under Article 51(1), (4), and (5) of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter the same) differs from the legal nature of the right to claim the return of unjust enrichment under the civil law. As such, the State may file a lawsuit seeking the return of unjust enrichment under the civil law as the owner of State property, separate from exercising the right to impose and collect indemnity against an illegal occupant. This legal doctrine likewise applies to the Korea Asset Management Corporation entrusted with the business of managing and disposing of miscellaneous property (limited to general property under the current State Property Act) among State property pursuant to Article 32(3) of the former State Property Act and Article 33(2) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 200

(B) In the case of a return of unjust enrichment, the scope of benefits to be returned by the beneficiary is limited to the scope of damages suffered by the loss, and the loss suffered by the loss is equivalent to the profit expected to be ordinarily enjoyed from the relevant property by the lossr under social norms. However, the profit which the State can ordinarily enjoy from the miscellaneous property is a loan where a loan contract is concluded with regard to the profit. Therefore, the unjust enrichment to be returned by the illegal occupant of miscellaneous property is equivalent to the loan charges stipulated in the statutes relating

① Furthermore, even according to the language and text of Articles 38(1) and 25-2(1) of the former State Property Act, the adjustment of the reduction of loan charges imposed on a person who has continuously occupied, used, or profit-making in excess of one year (hereinafter “Adjustment loan charges”) is not mandatory, but is possible at the discretion of an administrative agency. ② Adjustment of the reduction of loan charges is a system for a lending contractor who has faithfully occupied, used, or profit-making on miscellaneous property exceeding one year after lawful conclusion of a loan agreement. The calculation of unjust enrichment by applying the same standard to a illegal occupant is not consistent with the purport of the lending fee adjustment system; ③ Calculation of unjust enrichment based on the adjustment loan charges is not consistent with the purpose of the lending fee adjustment system; ③ Calculation of unjust enrichment by an illegal occupant based on the adjustment loan charges, rather than the long-term illegal occupant gains more advantage than the illegal occupant of a legitimate and long-term loan lender subject to the restriction on the lending period, and thus is contrary to equity.

[Dissenting Opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim Shin, and Justice Kim So-young] (A) In a case where an administrative body prepares a simple and economic remedy procedure in the relevant statutes so that it can efficiently exercise and secure the right, the administrative body may realize the right only through such procedures, and the exercise of the right or seeking the satisfaction of the right by means of civil procedure is not permissible.

In particular, the legal relationship about miscellaneous property among state property is a private economic entity, and thus is subject to the judicial application. However, Article 51 of the former State Property Act imposes an indemnity equivalent to 120% of the loan fee on the illegal occupant of miscellaneous property, and allows the illegal occupant of miscellaneous property to collect the indemnity by applying mutatis mutandis the provisions on the disposition on default of the National Tax Collection Act. Furthermore, imposing an indemnity on the illegal occupant of miscellaneous property under Article 51(1) of the former State Property Act is a binding act in which the discretion of the administrative entity is not allowed, and it is not a nature that can determine whether to impose the indemnity at the option of the administrative entity.

Therefore, if it is possible to impose and collect indemnity under Article 51 of the former State Property Act with respect to the illegal possession of State property, the benefits from the illegal possession and use of State property can be recovered only by the method of imposing and collecting indemnity, and it is not allowed to separately file a claim for restitution of unjust enrichment by means of civil procedure.

(B) The right to impose and collect indemnity under Article 51 of the former State Property Act is a right under the public law, and the right to claim restitution of unjust enrichment under the civil law is a claim under the civil law. However, since both are to recover profits without any legal cause from an illegal occupant of State property, the imposition and collection of indemnity can be deemed to regulate the claim for restitution of unjust enrichment against an illegal occupant of State property in the form of public law. Ultimately, the essence of the right to impose and collect indemnity under Article 51 of the former State Property Act is different.

Articles 25(1) (see current Article 32(1)), 25-2(1) (see current Article 33(1)), 32(3) (see current Article 42(1)), 38(1) (see current Article 47(1)), 51(1) (see current Article 72(1)), and (4) (see current Article 73(2)1), and 73(5) (see current Article 73(2)2), of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009); Article 33(2) (see current Article 38(3) (see current Article 37(1)); Article 741 of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009); Article 741 of the Civil Act

Supreme Court Decision 91Da42197 delivered on April 14, 1992 (Gong1992, 1581) Supreme Court Decision 96Da31581 delivered on July 11, 1997 (Gong1997Ha, 2471) Supreme Court Decision 98Du7732 delivered on March 24, 200 (Gong2000Sang, 1079) (Supreme Court Decision 2005Du11463 Delivered on May 15, 2008)

Korea Asset Management Corporation (Law Firm LLC, Attorneys Yoon-won et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Central District Court Decision 2011Na21180 decided August 26, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. In accordance with Article 51(1) of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter the same shall apply), the State may impose indemnity on a person who occupies, uses, or benefits from State property without permission, etc. (including a person who continues to occupy, use, or benefits from State property without permission, etc. after the lease or permission for use or profit-making expires; hereinafter the same shall apply) pursuant to Article 51(4) and (5) of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 200; hereinafter the same shall apply).

However, the imposition of indemnity against an illegal occupant of State property is an administrative disposition conducted in the superior position of the public authority, and the right to collect indemnity upon such disposition is a right under the public law. On the other hand, the civil right to claim restitution of unjust enrichment is a claim under the private law held as the owner of state property (see Supreme Court Decision 91Da42197, Apr. 14, 1992). In addition, the amount of indemnity differs from the amount of unjust enrichment, which is equivalent to 120% of loan charges or usage fees, which are the basis for calculating unjust enrichment. The purpose of imposing and collecting indemnity for the amount so increased lies in realizing the public interest such as efficient preservation and management of state property beyond the recovery of benefits arising from use and profit-making of state property (see Supreme Court Decision 2005Du11463, May 15, 2008). Moreover, the civil right to claim restitution of unjust enrichment is established when it is impossible to use or profit-making state property without loan, use or profit-making without permission.

As such, the right to impose and collect indemnity under Article 51(1), (4), and (5) of the former State Property Act differs from the legal nature of the right to claim restitution of unjust enrichment under the civil law. As such, the State may file a lawsuit against an occupant of unjust enrichment under the civil law as the owner of State property, separate from exercising the right to claim restitution of unjust enrichment. This legal doctrine likewise applies to the Plaintiff’s entrustment of the affairs concerning the administration and disposal of miscellaneous property (which falls under general property under the current State Property Act) among State property pursuant to Article 32(3) of the former State Property Act and Article 33(2) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009). Accordingly, the Plaintiff may file a lawsuit against an occupant of unjust enrichment under the civil law, separate from exercising

Meanwhile, according to the reasoning of the judgment below and the record, the defendant did not enter into a loan agreement and occupied the land of this case, which is a miscellaneous property owned by the State, without authority, from July 1, 2005 to December 31, 2008 without authority, and the plaintiff filed a lawsuit of this case against the defendant seeking restitution of unjust enrichment since it imposed indemnity on the defendant on the ground of an illegal occupation during the above period, but did not have been paid the indemnity. In light of the legal principles as seen earlier, the lawsuit of this case is lawful as it has the benefit of protecting rights

2. In the case of a return of unjust enrichment, the scope of benefits to be returned by the beneficiary is limited to the scope of damages suffered by the victim, and the loss suffered by the victim is equivalent to the profit expected to be ordinarily enjoyed from the relevant property by social norms (see Supreme Court Decision 96Da31581, Jul. 11, 1997). However, in a case where the State gains profit from the miscellaneous property when a loan contract is concluded, the profit which the State can normally enjoy from the miscellaneous property is rent in a case where the loan contract is concluded, and thus, the unjust enrichment to be returned by the illegal occupant of the miscellaneous property is equivalent to

① Furthermore, even according to the language and text of Articles 38(1) and 25-2(1) of the former State Property Act, the adjustment of the reduction of loan charges imposed on a person who has continuously occupied, used, or profit-making in excess of one year (hereinafter “Adjustment loan charges”) is not mandatory, but is possible at the discretion of an administrative agency. ② Adjustment of the reduction of loan charges is a system for a lending contractor who has faithfully occupied, used, or profit-making on miscellaneous property exceeding one year after lawful conclusion of a loan agreement. The calculation of unjust enrichment by applying the same standard to a illegal occupant is not consistent with the purport of the lending fee adjustment system; ③ Calculation of unjust enrichment based on the adjustment loan charges is not consistent with the purpose of the lending fee adjustment system; ③ Calculation of unjust enrichment by an illegal occupant based on the adjustment loan charges, rather than the long-term illegal occupant gains more advantage than the illegal occupant of a legitimate and long-term loan lender subject to the restriction on the lending period, and thus is contrary to equity.

Nevertheless, the lower court determined that unjust enrichment to be returned by the Defendant is the amount equivalent to the adjusted loan charges, and accepted only the 13,684,79 won, which is the amount equivalent to the adjusted loan charges, and the remainder of the claim is dismissed. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of unjust enrichment to be returned by the illegal occupant of State property, which affected the conclusion

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Except for a dissenting opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim Shin, and Justice Kim So-young, the decision is delivered with all participating Justices.

4. Dissenting Opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim Shin, and Justice Kim So-young

The Majority Opinion holds that a lawsuit seeking restitution of unjust enrichment is lawful, separate from exercising the right to impose and collect indemnity under the former State Property Act, against an illegal occupant of State property, and accordingly, the lawsuit in this case is lawful. However, we cannot agree with the Majority for the following reasons.

A. Article 51(1) of the former State Property Act provides that a person who occupies, uses, or benefits from State property without obtaining permission for the lease, use, or profit-making thereof shall collect an amount equivalent to 120/100 of loan charges or usage fees from the person, while Article 51(4) and (5) of the same Act provides that when the indemnity is not paid within the given period, the indemnity may be collected by applying mutatis mutandis the provisions on disposition on default under the National Tax Collection Act.

In a case where the relevant laws and regulations provide a simple and economic remedy procedure so that the administrative body can exercise and secure the right efficiently, the administrative body can realize the right only through such procedures and seek the satisfaction of the right by means of civil procedure is not permissible separately. Such view is not only consistent with the purport of the relevant laws and regulations prepared for the prompt and economic administrative purpose, but also is consistent with the existing Supreme Court precedents (see, e.g., Supreme Court Decisions 2004Da8630, May 13, 2005; 2009Da1122, Jun. 11, 2009).

In particular, the legal relationship about miscellaneous property, such as the land in this case, among state property, is a private economic entity and thus is subject to judicial application. However, Article 51 of the former State Property Act imposes a heavy indemnity equivalent to 120% of the loan charges on an illegal occupant of miscellaneous property, and is subject to compulsory collection by applying mutatis mutandis the provisions on disposition on default of the National Tax Collection Act.

Furthermore, imposing indemnity on an illegal occupant of state-owned property pursuant to Article 51(1) of the former State Property Act is a binding act in which discretion of the administrative body is not allowed (see Supreme Court Decision 98Du7602 delivered on September 22, 1998). It is not a nature that can determine whether to impose indemnity at the option of the administrative body.

Therefore, if it is possible to impose and collect indemnity under Article 51 of the former State Property Act with respect to the illegal possession of State property, the benefits from the illegal possession and use of State property can be recovered only by the method of imposing and collecting indemnity, and it is not allowed to separately file a claim for restitution of unjust enrichment by means of civil procedure.

B. The Majority Opinion appears to be permitted to file a civil lawsuit for the return of unjust enrichment against an illegal occupant of State property, contrary to the civil lawsuit seeking the payment of indemnity itself, on the premise that the right to impose and collect indemnity and the right to claim restitution of unjust enrichment under Article 51 of the former State Property Act are separate rights, but such understanding is not reasonable.

The purport of Article 51(1) of the former State Property Act stipulating that an indemnity shall be collected against an illegal occupant of State property under this Article is that since normal loan charges or usage charges shall not be collected in the event that possession, use, or commencement of profit-making without any legal title is made without any legal title (see Supreme Court Decision 91Nu5211, Mar. 10, 192). It is naturally premised on the premise that an illegal occupant of State property is to recover benefits obtained without legal cause.

Therefore, even though the amount of indemnity is equivalent to 120% of rent or usage fee, and the punitive meaning against an illegal occupant of State property is included, the essence of indemnity is based on the return of unjust enrichment equivalent to rent or usage fee from the occupation and use of State property without permission, and it is deemed that there is no punitive nature, and it does not mean that the imposition and collection of indemnity and the return of unjust enrichment are completely separate for this reason.

Although the right to impose and collect indemnity under Article 51 of the former State Property Act is a right under the public law, and the civil claim for the return of unjust enrichment is a claim under the private law. However, as seen above, both are to recover benefits which are not legally attributable from an illegal occupant of State property, the imposition and collection of indemnity can be seen as regulating the claim for return of unjust enrichment against an illegal occupant of State property in the form of public law. This is more so in that Article 51 of the former State Property Act regulates the same in particular, inasmuch as the legal relationship as a private economic entity is concerned, it is equally

Ultimately, the right to impose and collect indemnity under Article 51 of the former State Property Act and the right to claim restitution of unjust enrichment under the civil law are different in nature. Therefore, the majority opinion that regards both as a completely separate right is thought to have erroneously understood the nature of the right to impose and collect indemnity.

C. Even if the right to impose and collect indemnities under Article 51 of the former State Property Act and the right to claim restitution of unjust enrichment under the civil law are deemed separate rights as stated in the Majority Opinion, the right to claim restitution of unjust enrichment under Article 51 of the former State Property Act does not necessarily necessarily have to be allowed to exercise the entire right, but can be determined by taking into account the legislative purport of the statute that serves as the basis

As seen earlier, Article 51 of the former State Property Act does not only focus on preparing prompt and efficient relief methods, such as compulsory collection under the National Tax Collection Act, for the collection of indemnity, but also on providing special treatment, such as that the amount increased by 20% compared to the unjust enrichment calculated as ordinary rent or usage fee, shall be calculated as indemnity, in substance and legally.

Article 51(a) of the former State Property Act provides for the following reasons: (a) while the types of State property are diverse and its location map is widely distributed across the nation; (b) human and material resources of the Office of Administration are bound to be restricted; (c) so, in order to achieve administrative objectives with respect to illegal occupancy of State property, an efficient means was required (see Supreme Court Decision 2005Du11463, May 15, 2008).

In the same context, in addition to the above provisions, the former State Property Act provides for removal or other necessary measures by applying mutatis mutandis the Administrative Vicarious Execution Act (Article 52). In cases where a person delegated with the administrative affairs of State Property causes damage to the property by performing an act in violation of his/her duties intentionally or by gross negligence, he/she shall be held liable for compensation (Article 54).

Considering these circumstances comprehensively, the legislative purport of the former State Property Act is to consider the exercise of the right to impose and collect indemnity against an illegal occupant of State property in preference to the exercise of the right to claim restitution of unjust enrichment under the civil law. Therefore, rather than allowing both the right to impose and collect indemnity and the right to claim restitution of unjust enrichment under the civil law, if it is possible to impose and collect indemnity, it also accords with the legislative purport of the former State Property Act to allow the recovery of benefits arising from illegal occupation and use of State property only through the imposition and collection of indemnity if it is possible to impose and collect indemnity. If access is easy and performance is given, it is adequate to provide an admission ticket for good special seating, and it is not sufficient to provide an additional offer to the general spectator’s admission ticket with access to which it is difficult to view it as a public performance.

D. Meanwhile, in a situation where the compulsory collection of indemnity under the National Tax Collection Act, which applied mutatis mutandis the provisions of the disposition on default, is not smooth, the person who paid indemnity, in compliance with the order of the disposition on imposition of indemnity, shall be held liable for unjust enrichment more than unjust enrichment, and a person who fails to comply with the disposition on imposition of indemnity shall be held liable for unjust enrichment and shall be held liable for unjust enrichment, and is contrary to equity. Ultimately, the system of indemnity under Article 51 of the former State Property Act itself is likely to be emuliated by losing the people’s trust in the administrative disposition. As a result, it would be more likely that it would be more desirable to take civil action against the illegal occupant of the State property without permission, while it is not sufficient than immediately paying indemnity due to unauthorized occupation.

E. Finally, as shown in the Majority Opinion, it is necessary to look at whether allowing a civil lawsuit seeking restitution of unjust enrichment, separately from the exercise of the right to impose and collect indemnities, is justifiable in terms of legal policy.

The majority opinion argues that in the case of the plaintiff who is entrusted with the affairs of administration and disposal of miscellaneous property, the indemnity cannot be collected directly by applying mutatis mutandis the provisions on disposition on default under the National Tax Collection Act, and it is possible to compel the head of the competent tax office, etc. to collect the indemnity in arrears pursuant to Article 51 (5) of the former State Property Act. In reality, considering the circumstances where the collection of indemnity is not smooth due to the failure to obtain cooperation from the head of the competent tax office, etc., it is not necessary to obtain a separate title for civil execution. In addition, it seems that the reason why the plaintiff intends to realize the right by borrowing the power of the court by obtaining the title of execution through civil procedure which requires more time and expenses, instead of compulsory collection of indemnity

However, allowing a claim for return of unjust enrichment under the civil law, which is another remedy method, is in line with the result of the operation of the wrong system, and it is not desirable to help the state or the plaintiff to know it rather than to improve the wrong reality.

It is rather not an attitude that the court will take to actively cooperate with the administrative agency's wrong work practice, which is going against the procedure for remedying the infringement of rights specially prepared by the law, and which takes an abnormal and roundive method. It is close to the present situation where the administrative agency's long-standing wrong practice is an opportunity to correct it before it is no longer possible, and it is the same as giving an opportunity to correct it.

F. In conclusion, the instant lawsuit is unlawful as there is no benefit in the protection of rights. Accordingly, the judgment of the court below on the legitimacy of the Plaintiff’s claim for restitution of unjust enrichment on the premise that the instant lawsuit is lawful is reversed, and pursuant to Article 437 of the Civil Procedure Act, the part against the Plaintiff in the judgment of the first instance is revoked, and

For the foregoing reasons, we express our concurrence with the Majority Opinion.

Justices Yang Chang-soo (Presiding Justice)