In the disposition of imposing indemnity against an occupant of any State property without permission, if the grounds for calculating indemnity are not specified in a notice of payment or a prior notice, whether the disposition is unlawful.

Article 56 (4) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 15487 of Oct. 1, 1997) is clear that Article 31 (2) through (4) of the Enforcement Decree of the State Property Act shall apply mutatis mutandis to the subject of collection, the matters to be specified in the notice of imposition, the procedure for imposing additional dues for the imposition of additional dues, such as the time limit for payment. In light of the purpose of the above Enforcement Decree that demands the unauthorized occupant of State property to specify certain matters in the notice of payment and the strength of the provision, etc. in imposing indemnity, if the disposition agency did not disclose the basis for calculation in the notice of payment or at least the prior notice in imposing indemnity, it cannot be deemed that there is no need to specify the basis for calculation or that it indirectly specified the basis for calculation.

Articles 26, 26-2, 31(2), (3), (4), and 56(4) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 15487 of Oct. 1, 1997), Article 1 of the Administrative Litigation Act / [general administrative disposition]

Supreme Court Decision 92Nu13981 delivered on July 13, 1993 (Gong1993Ha, 2317), Supreme Court Decision 93Nu19542 delivered on March 25, 1994 (Gong1994Sang, 1353), Supreme Court Decision 95Nu3824 delivered on December 22, 1995 (Gong196Sang, 575)

Plaintiff (Attorney Kim Ba-young et al., Counsel for the plaintiff-appellant)

The head of the office of the Busan Regional Railroad Office (former Name: Commissioner of Busan Regional Railroad Office)

Busan High Court Decision 97Gu17940 delivered on January 8, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to the reasoning of the judgment below, in full view of the purport of Article 51(1) of the State Property Act and Article 56(1) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 15487 of Oct. 1, 1997) and Article 31(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15487 of the same Act), the court below determined on Apr. 9, 1997 that in imposing indemnity against the person who occupies State property without permission for use or profit-making, the amount, time limit for payment, place for payment, and the basis for calculation of indemnity should be specified in writing. However, in imposing indemnity for five years on the land of this case, the defendant did not issue a prior notice to the plaintiff on Apr. 24, 1997, stating only the annual amount and total amount of indemnity, and if there is an objection, it did not request the plaintiff to submit a written opinion, and that the above notice should not be made to the public official in charge of Busan National Railroad by June 26 of the same year.

Article 56 (4) of the Enforcement Decree of the above Act is clear that Article 31 (2) through (4) of the above Enforcement Decree of the above Act shall apply mutatis mutandis to the subject of collection, matters to be specified in the notice of imposition of additional dues, procedural provisions such as the deadline for the payment of additional dues. In light of the purpose of the above Enforcement Decree which requires the unauthorized occupant of State property to specify a certain matter in the notice of payment and the compulsoryness of the provision thereof, if the disposition agency did not state the basis for calculation in the notice of payment or at least prior notice in imposing indemnity, it is unlawful (see, e.g., Supreme Court Decisions 95Nu3824, Dec. 22, 1995; 93Nu19542, Mar. 25, 1994). Article 26 and 26-2 of the above Enforcement Decree of the above Act provides for the method of calculating the usage fee, which serves as the basis for calculating the indemnity, and it does not indirectly state the basis for calculation or indirectly state the basis for calculation.

In the same purport, the judgment of the court below ordering the cancellation of the disposition of this case on the ground that the procedure for imposition and notice was violated is just and there is no violation of law such as misunderstanding of legal principles as otherwise

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)