Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Yangsan-si (Korean Law Firm, Attorneys Cho Jae-il, Counsel for the defendant-appellant)

November 16, 2010

Ulsan District Court Decision 2009Da32408 Decided July 9, 2010

1. The part against the plaintiff falling under the following order of payment among the judgment of the court of first instance shall be revoked:

The defendant shall pay 110,200,000 won to the plaintiff.

2. The plaintiff's remaining appeal is dismissed.

3. 10% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 124,711,00 won and the amount calculated by the rate of 20% per annum from the day following the delivery of the application for modification of the claim and the cause of the claim of this case to the day of complete payment.

1. Basic facts

The following facts are recognized in full view of the following facts: (a) there is no dispute between the parties; (b) evidence No. 1 to 8; and (c) evidence No. 1 to No. 7; and (d) the purport of the entire pleadings as a result of the market price appraisal on the non-party to the appraiser

A. On December 28, 1987, the Plaintiff borrowed the forest land of this case (hereinafter “the forest land of this case”) from the Defendant with the lease term “from December 28, 1987 to December 30, 1989” and “the management of tree and tree trees (forest management plan: tree management plan: night tree)” for the purpose of the loan. The Plaintiff was loaned the forest land of this case (hereinafter “the forest land of this case”) with the lease term of 28,788 square meters among 242 2,402 and 5 2,479 m2, 2400 m2,479 m2.

B. After that, the Plaintiff and the Defendant from January 1, 1989 to January 1, 1990 [the purpose of loan: the management of trees and planting trees (the afforestation plan for afforestation trees): from January 1, 1990 to December 31, 192 (the purpose of loan: the afforestation for night trees); from January 1, 1993 to December 31, 1995 (the purpose of loan: the afforestation for night trees; the first-time tree) from January 1, 1993 to December 31, 1995; the second-time loan agreement from February 1, 1996 to December 1, 199 to December 31, 198 (the second-time loan agreement from October 2, 201 to December 31, 201; the second-time loan agreement from January 1, 209 to December 31, 201 (the second-time loan agreement).

· Article 1: Purpose of Use of Loaned Property - Afforestation

- Article 3: The annual amount of rent shall be the amount of assessment for the relevant year: Provided, That in the calculation of monthly rent, the number of days less than one month shall be deemed one month.

· Article 4: The payment period for the Plaintiff's rent shall be governed by Article 25 of the Public Property Management Ordinance, and the overdue rate after the payment deadline shall be governed by Article 27 of the same Ordinance.

· Article 5: The plaintiff shall be liable for the preservation and use of the leased property or the purpose of its profit with the care of a good manager. The plaintiff shall not claim not only the expenses under the preceding paragraph, but also the reimbursement of expenses under the provisions of Article 203 or 626 of the Civil Act.

· Article 8: In cases falling under any of the following subparagraphs, the defendant may rescind at any time the contract for all or part of the loaned property to the plaintiff:

1. Where required for official use, public use, or public works;

2. When the plaintiff does not commence the purpose of use even after six months have passed since the contract was concluded or the defendant recognizes that the purpose of use cannot be achieved by the expiration date of the loan.

3. Where he violates the provisions of Articles 4, 5, 6, 7 and 8;

4. When he fails to report the administrator, in the event that the plaintiff has no address or domicile in Korea;

5. Where the Plaintiff loses ownership of any article on the ground due to the disposition on default, compulsory execution or auction;

6. When the defendant does not respond to a request for purchase;

7. (1) In the event that the plaintiff's failure to perform or breached this contract clause, or the cancellation is made pursuant to the provisions of the preceding paragraph, the defendant shall not compensate the plaintiff for the damage, even if the damage is incurred to the plaintiff: Provided, That in the case of subparagraph

(2) Where a loan is cancelled pursuant to the provisions of paragraph (1), it shall be calculated pursuant to the provisions of Article 3 and the overpaid payment shall be refunded.

· Article 10

(1) When a plaintiff requests cancellation during the term of this contract, he/she shall submit an application one month prior to the cancellation.

(2) Where the defendant cancels a contract pursuant to paragraph (1), the rent shall be calculated pursuant to Article 3, and the overpaid payment shall be refunded. In such cases, even if the damage to the plaintiff is incurred due to the cancellation, the defendant shall not be compensated.

· Article 11: The loan period expires, or when this contract is terminated, the plaintiff shall restore the substitute property to its original state within the period designated by the defendant and return it in the presence of the defendant.

· Article 12: Continued one month before the expiration of the loan, in the event that the plaintiff intends to continue the loan after the expiration of the loan;

The loan shall be submitted.

C. During the above loan period, the Plaintiff built the instant forest and the instant incidental facilities after planting timber and night trees. At the time of closing the argument in the trial, the Plaintiff installed the instant forest and the instant forest and the instant forest, including 547 glue trees (the 17th year in receipt), 16 glue trees (the 17th year in receipt), and f71 glue trees, such as bamboo trees, kids, kids, kids, sp, pump, pump trees, flue trees, and vain trees, and there are other auxiliary facilities, such as electric measuring instruments, containers, teas, work sites, simplified storage, ice-clue facilities, fences, fences, access roads, portable toilets, screening toilets, power powder, signboards, signboards, etc.

D. The total value of trees and ancillary facilities is KRW 124,71,000, and the total value of trees among them is KRW 109,400,000 (=547glux 200,000), and the total value of night trees is KRW 800,000 (=16glux 50,000).

E. The Plaintiff continued possession and use of the instant forest even after the expiration of the term of the instant loan agreement, and the Defendant, on September 2, 2009, sent to the Plaintiff an official letter stating, “A project is underway to create a naturally-friendly juvenile reception source in connection with the creation of a natural recreation forest in the instant forest. As the term of the instant forest expires, the part of trees planted on the same site pursuant to Article 11 of the Public Property Loan Agreement shall be transplanted by November 30, and the relevant obstacles shall also be restored to their original state and shall be restored to their original state and delivered to the Plaintiff at that time.”

2. The parties' assertion

A. The plaintiff's assertion

(1) The lease agreement of this case is a lease contract under the Civil Act, and the provision of the lease contract of this case should be applied. However, although the plaintiff requested the plaintiff to re-enter the loan contract of this case after the expiry of the lease contract of this case, the plaintiff refused it. Accordingly, pursuant to Articles 643 and 283(2) of the Civil Act, the plaintiff shall exercise the right to purchase the trees and obstacles planted or installed in the forest of this case against the defendant. According to the plaintiff's exercise of the above purchase right, the contract between the plaintiff and the defendant was established for the trees and obstacles on the land of this case. Thus, the defendant is obligated to pay to the plaintiff the purchase price of trees and obstacles (sale price) and damages for delay.

Luxembourg even if the Plaintiff’s right to demand purchase of ground property under the Civil Act is not recognized, the practice was formed that the Plaintiff and the Defendant have impliedly renewed the loan agreement, and even if the Plaintiff did not submit the “exclusive loan” one month prior to the expiration of the instant loan agreement, the instant loan agreement was implicitly renewed in accordance with the foregoing practice. Nevertheless, the Defendant notified that the instant loan agreement was terminated on September 2, 2009, and thus, the Defendant is obliged to compensate the Plaintiff for the damages incurred to the Plaintiff pursuant to Article 35(1)1 and (3) of the Public Property and Commodity Management Act and Article 36 of the Enforcement Decree of the same Act.

B. Defendant’s assertion

(1) The forest of this case is a general property owned by the Defendant, and cannot be deemed as a land under Article 643 of the Civil Act. According to the purport of Articles 35, 81, and 83 of the Public Property and Commodity Management Act, the provisions of the Civil Act shall not be deemed to apply to the instant loan agreement. As long as the instant loan agreement expired, the forest of this case cannot be deemed as a subject of compensation for losses under Article 35 of the Public Property and Commodity Management Act.

(2) Even if the Plaintiff may exercise the right to purchase ground property under the Civil Act, according to the loan agreement of this case, the Plaintiff renounced the right to purchase ground property, and the Plaintiff is not subject to the right to request purchase of ship trees, kids, bamboo trees, water supply, water supply, plant, container, etc. that are not included in the instant business plan.

3. Determination

A. Relevant statutes

Public Property and Commodity Management Note 3)>

Article 2 (Relation with Other Acts)

Except as otherwise provided for in other Acts, the acquisition, maintenance, preservation, operation and disposal of public property and commodities shall be governed by this Act.

Article 5 (Classification and Types of Public Property)

(1) Public property shall be classified into administrative property, preservation property and miscellaneous property according to its use.

(2) The term "administrative property" means any of the following property:

1. Public property: Property directly used or determined to be used by a local government for office, business or residence of public officials, and property under construction for the purpose of use;

2. Property for public purposes: Property under construction with the aim of using it directly determined by a local government for public purposes;

3. Property for business use: Property managed by the local government or determined to be used for the residence of the employees working for the business, and under construction for the purpose of use.

(3) The term “Preservation property” means the property which the local government has decided to preserve or preserve under the provisions of Acts and subordinate statutes, Municipal Ordinances or Municipal Rules, or as necessary.

(4) The term "miscellaneous property" means all public properties other than administrative property and conservation property.

Article 31 (Period of Loan)

(1) Loans of miscellaneous property shall not exceed the period according to the classification in the following subparagraphs: Provided, That the same shall not apply to cases determined by Presidential Decree for the activation of the regional economy:

1. Land and its fixtures: Five years;

2. Assets other than those under subparagraph 1: One year.

(2) In any of the following cases, the head of a local government may renew the previous loan period. In such cases, no renewed loan period shall exceed the loan period under paragraph (1) whenever it is renewed:

1. Where a person who has obtained a loan suffers damage due to a natural disaster or other disasters;

2. Where the borrower has been restricted in using the relevant property due to any cause attributable to the local government concerned;

3. Where the lease of miscellaneous property, the lease period of which under the provisions of paragraph (1) has expired, may be concluded by a free contract under the proviso of Article 29; and

(3) Any person who intends to have a loan renewed under paragraph (2) shall apply to the head of a local government for the renewal of the loan period at least one month prior to the expiration of the loan period.

Article 35 (Termination, etc. of Loan Agreements)

(1) When a person who has obtained a loan of miscellaneous property falls under any of the following subparagraphs, the head of a local government may terminate or rescind the relevant loan contract:

1. In a case where the lent miscellaneous property is required for any official or public use directly by the State or local government; and

2. Where he neglects the management of the leased miscellaneous property, or uses it for the purpose of such loan;

3. Where he subleases the leased miscellaneous property or alters the original state of the leased miscellaneous property without the consent of the head of local government; and

4. When the facts of concluding the relevant contract have been discovered through a false statement, submission of false evidential documents, or other unlawful means; and

5. Where he fails to pay the rent within the time limit for payment under Article 32 (2);

(2) If the head of a local government terminates or cancels the contract under paragraph (1), he/she shall, without delay, take the procedure necessary for restoring the right.

(3) If the termination or cancellation of a contract due to any cause falling under paragraph (1) 1 causes any loss to the other party, a local government using such property shall compensate for such loss under the conditions as prescribed by the Presidential Decree.

(4) When a person who has obtained a loan of miscellaneous property fails to pay the rent within the fixed period under Article 32 (1), the head of a local government shall collect it in the same manner as delinquent local taxes are collected.

Article 81 (Collection of Indemnification)

(1) With respect to a person who occupies, uses, or profits from, a public property without obtaining permission for the lease, use, or profit-making of the public property under this Act or other Acts (including a person who continues to occupy, use, or profit-making from the public property without obtaining any lease, use, or profit-making permission, etc. after the expiration of the period of lease, use or profit-making, etc. of the public property), an indemnity equivalent to 120/100 of the lease fees

(hereinafter omitted)

Article 83 (Removal of Illegal Facilities)

When a person occupies public property or installs facilities on it without justifiable grounds, he/she may remove such property or take other necessary measures by applying mutatis mutandis the provisions of Articles 3 through 6 of the Administrative Vicarious Execution Act.

B. Whether the Plaintiff can exercise the right to purchase a ground object under Article 643 of the Civil Act

(1) Legal nature and determination of lending of state or public miscellaneous property

(A) According to the basic principles of modern state of law, the object of rights is sale, lease, creation of other private rights, etc. in accordance with the principle of freedom of juristic act, and the provisions of private law, such as the Civil Act, shall apply to the relationship of rights arising from private transactions. However, with respect to objects used for public purposes, such as those provided for public purposes or for public purposes among objects, restrictions may be imposed by law to the extent necessary for the performance of public welfare, etc. under the Constitution. As to the relationship of rights of such objects, the application of private law shall be excluded and the regulation of public law shall be applied.

In other words, in the case of public property owned by a local government, the local government has a special status as a public corporation only when it is necessary to make the public property subject to public law regulations within the extent necessary to achieve the public purpose and function of the public property owned by the local government. In other cases, the ownership, management, and disposal of the property which is the object of the right as the object of the right as the subject of rights equal to a judicial person. Therefore, lending of state or public miscellaneous property by the agency entrusted with the authority to manage and dispose of state or public miscellaneous property is a contract under private law with the state or local government at an equal level with the other party as the subject of private economy. It cannot be viewed as an administrative disposition unilaterally conducted by

Therefore, in principle, the provisions of the law are applied to the relationship of rights such as the lending of state and public miscellaneous property. However, one of the parties to the contract is the state or local government, and the object is the state or public property, so it should be regulated by special laws such as the State Property Act, the Public Property and Commodity Management Act, and the Forestry Act.

(See Supreme Court Decision 2010Da59646 Decided November 11, 2010, Supreme Court Decision 99Da61675 Decided February 11, 200, Constitutional Court en banc Decision 2008Hun-Ba148 Decided March 25, 201, etc.

(B) In light of the above legal principles, there is no provision governing the termination due to the expiration of the term of the instant loan agreement, and there is no provision regulating it in the Special Act such as the Public Property and Commodity Management Act. As to the legal effect related to the termination due to the expiration of the term of the instant loan agreement, the provisions governing the lease of the Civil Act as a general law shall apply to the legal effect related to the termination due to the expiration of the term of the term of the instant loan agreement. The following circumstances, namely, ① the substance of the instant loan is a land lease for planting purposes; ② the Plaintiff continuously occupied and used the instant forest after the termination of the term of the instant loan agreement; ② the Plaintiff demanded the renewal of the instant loan agreement to the Defendant implicitly by explicitly occupying and using the instant forest even after the termination of the term of the term of the loan agreement; ③ However, the Defendant’s refusal to renew the instant loan agreement, barring special circumstances, may exercise the right to purchase the instant

Therefore, on October 5, 2009, a sales contract for trees planted in the forest of this case in line with the purpose of the loan stipulated in the instant loan agreement was established between the original and the Defendant, which included the purport of exercising the Plaintiff’s right to demand purchase of the ground water.

(2) Judgment on the defendant's assertion

(A) Determination as to the assertion that the application of the Civil Act is excluded in light of the purport of the provisions of Articles 35, 81, and 83 of the Public Property and Commodity Management Act

Article 35 of the Public Property and Commodity Management Act regulates cases where a loan agreement for miscellaneous property has been terminated, and Article 81 of the above Act collects indemnity from a person who has used or profited from public property without a loan agreement, and Article 83 of the above Act and Articles 3 through 6 of the Administrative Vicarious Execution Act imposes the duty to remove trees and annexed facilities planted in the forest of this case as the plaintiff lost the title to possess the forest of this case upon the termination of the loan agreement of this case. Thus, in light of the purport of each above provision, the defendant asserts to the purport that the provisions concerning the right to purchase land of this case concerning the loan for miscellaneous property, such as the loan agreement of this case, cannot be applied to the loan agreement of this case.

(6) In light of the above facts and the purport of the arguments adopted earlier, the following circumstances: ① Since the legal nature of the loan contract for the miscellaneous property among the public property is a private contract, unless otherwise regulated by the Special Act, it cannot be ruled out. ② Article 35 (1) 1 of the Public Property and Commodity Management Act and Article 35 (3) of the same Act provide that the head of a local government may terminate or cancel the loan contract if it is necessary for the State or a local government to directly use the leased miscellaneous property, but if the termination or cancellation of the contract causes losses to the other party, the State or the local government shall reasonably compensate for such losses as prescribed by the Presidential Decree, if the local government has to lawfully use the miscellaneous property for the purpose of public use, and thus, it cannot be deemed that the loan contract for the miscellaneous property has been lawfully terminated or terminated, and it cannot be deemed that there is no provision that the lease contract for the miscellaneous property has been terminated or terminated without permission for the purpose of the lease contract for the purpose of public use.

(B) Determination as to the assertion that the Plaintiff renounced the right to demand purchase of ground objects

The defendant asserts to the effect that the plaintiff renounced the right to demand purchase of ground property, while the plaintiff raising a long-term profit according to the loan agreement of this case while the loan fee is relatively lower than the market price, the loan agreement of this case is not favorable to the plaintiff.

On the other hand, as recognized earlier, Article 11 of the loan contract of this case provides that "if the loan period expires or the contract is terminated, the plaintiff shall restore the loan property to its original state within the period designated by the defendant and return it in the presence of the defendant" and the plaintiff shall return the loan property in the presence of the defendant. However, the right to purchase ground property under Article 643 of the Civil Act is a so-called formation right, and thus the sale of the ground property between the lessor and the lessee is established. If the lessee exercises the right to purchase ground property, the lessor shall not refuse the purchase, and the above provision is a mandatory provision, and the agreement unfavorable to the lessee is null and void (see Supreme Court en banc Decision 94Da34265 delivered on July 11, 1995, etc.). If the loan contract expires, the above agreement that the plaintiff who received the loan of miscellaneous property without any condition to request the purchase of the ground property is invalid as a loan agreement to the plaintiff, and it does not have any effect in violation of the above mandatory provision of this case.

(c) Object and scope of claims for purchase of ground objects;

(1) During the loan period of this case, the Plaintiff planted 547 glusium and 16 glusium as prescribed for the purpose of loan in the instant loan agreement for the purpose of planting trees. The fact that the said glusium and glusium trees remain even after the expiration of the loan agreement, as seen earlier, is recognized. Accordingly, upon the Plaintiff’s exercise of the Plaintiff’s right to demand a ground property purchase, the sales contract for the said glusium and glusium trees between the Plaintiff and the Defendant was established.

As to this, the Plaintiff asserted that trees, such as tree trees additionally planted or installed by the Plaintiff and incidental facilities, such as electric measuring instruments, should also be included in the claim for purchase of ground water, except for the above-mentioned trees and night trees, but the facts acknowledged earlier and the following circumstances revealed by each of the aforementioned admitted evidence: ① on December 28, 1987, the Plaintiff borrowed the forest land of this case from the Defendant only for the purpose of “the night tree planting”; on December 29, 192, the Plaintiff added “the tree planting” for the purpose of the loan, and did not add other trees or incidental facilities for the purpose of the loan until the completion of the instant loan agreement; ② The facilities such as electric measuring instruments or containers installed in the forest of this case for the management of the trees of this case are not difficult to move as incidental facilities for the management of the trees of this case; and in full view of the circumstances such as the Plaintiff’s construction of facilities for his own business, such as planting and managing the trees of this case, the Plaintiff’s assertion that the subject of the claim for purchase of this case is limited to the loan agreement of this case.

(2) Meanwhile, the Plaintiff seeks 20% damages for delay from the day following the delivery of the application for modification of the purport of the instant claim and the cause of the claim to the purchase price pursuant to the instant contract for reduction trees and night tree sales contract among the Plaintiff and the Defendant to the day of full payment.

Then, even if one party's obligation has concurrent performance relations, if the other party's obligation has not been performed until the other party's obligation is performed (see, e.g., Supreme Court Decisions 91Da38723, 38730, Jul. 24, 1992; 96Da40851, 40868, Aug. 22, 1997). Such effect does not necessarily lead to the exercise of the other party's right of defense of simultaneous performance (see, e.g., Supreme Court Decisions 96Da40851, 40868, Aug. 22, 1997; 97Da54604, 5461, Mar. 13, 1998); 200.

In this case, a sales contract for the above trees and night trees is established between the plaintiff and the defendant by exercising the plaintiff's right to demand the purchase of the above trees, and the plaintiff bears the duty to deliver the above trees to the defendant, the defendant was liable to pay the purchase price for the above trees to the plaintiff, and such duty between the plaintiff and the defendant is in a simultaneous performance relationship. Thus, the defendant is liable to pay the above purchase price to the plaintiff simultaneously with the delivery of the above trees from the plaintiff. However, there is no evidence to acknowledge that the plaintiff, by providing the defendant with the performance of the duty to deliver the above trees, has caused delay of payment. Thus, this part of the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the total of KRW 110,200,00 (=109,400,000 (=547glux 200,000) + 800,000 (=16glux 500,000)) of the purchase price of the above-mentioned and night trees. Thus, the plaintiff's claim of this case is justified within the above recognized scope, and the remaining claims are dismissed for reasons. Since the judgment of the court of first instance is partially different from this conclusion, the plaintiff's appeal is partially accepted, and the part against the plaintiff corresponding to the above recognized amount is revoked, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Yong-ho (Presiding Judge)

(1) On December 29, 1992, the Plaintiff obtained a modified approval of the business plan with the content of adding pine trees to the purpose of lending from the Defendant.

Note 2) It appears that there are some errors in writing at the time and the expiration date of each loan period.

3) The loan agreement of this case was concluded pursuant to Article 83 of the Local Finance Act (wholly amended by Act No. 7663 of Aug. 4, 2005). The public property and Commodity Management Act was enacted by Act No. 7665 of Aug. 4, 2005 and enforced on Jan. 1, 2006 after the execution of the loan agreement of this case. However, according to Article 3 (3) of the Addenda to the Public Property and Commodity Management Act, “the use and profit-making under the previous Local Finance Act for the public property and goods of a local government at the time of the enforcement of this Act, and the use and profit-making under the previous Local Finance Act, lease, and other acts are deemed to have been performed under the provisions of this Act.” Thus, the loan agreement of this case shall be governed by the Public Property and Commodity Management Act.