Plaintiff (Law Firm Daejeon, Attorney Park Jae-chul, Counsel for the plaintiff-appellant)

KT Co., Ltd. (Law Firm Busan, Attorney Park Mine-cheon, Counsel for the plaintiff-appellant)

March 20, 2014

Daejeon District Court Decision 2012Gahap3245 Decided January 11, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the judgment with respect to KRW 216,98,04 and its amount. The defendant shall revoke the judgment of the court of first instance. From March 7, 2012 to KRW 2,277, forest land of KRW 2,152, ( Address 3 omitted), forest land of KRW 4,612, forest land of KRW 4,612, ( Address 4 omitted) forest land of KRW 19,905,00 in the attached Form No. 1,2,3,4, 11,90, 91, 91, 92, 93, 94, 12, 13, 14, 15, 16, 17, 19, 20, 21, 201, and 37, 97, 308, 97, 394, 97, 97, 97, 45, 97, 1.

1. Quotation of judgment of the first instance;

This Court’s reasoning is as follows, with the exception of deletion of the overall title of Chapter 17 through 19 (Conduct 5 through 3 from the following) of the first instance judgment, the grounds for this Court’s explanation are as follows: (a) under the main text of Article 420 of the Civil Procedure Act, this Court’s decision shall be cited as it is, however, added to the following:

【Supplementary Judgment】

○ First, the Plaintiff asserts to the effect that res judicata of the said final and conclusive judgment cannot be deemed to extend to this case, given that the part in the final and conclusive judgment of this case recognized as having been occupied by the Defendant and the part in the Defendant’s possession are inconsistent with each other.

However, res judicata of a final and conclusive judgment is included in the text of the judgment, that is, it only affects the conclusion of the judgment on the existence of legal relations claimed as a subject matter of lawsuit, and it does not affect the existence of legal relations, which are the premise of the judgment.

As can be seen from the facts revealed by the court of first instance, the subject matter of the final judgment of this case is the right to claim the return of unjust enrichment equivalent to the rent for the Defendant to occupy and use part of the land owned by Nonparty 1 in the Dong-gu Daejeon Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City. If the subject matter of the lawsuit of this case is limited to the lawsuit of this case, the subject matter of the lawsuit of this case is also divided into four parcels, including ( Address 2 omitted), 277m2, ( Address 3 omitted), 2,152m2, and ( Address 4 omitted), 4,612m2, and ( Address 5 omitted) 19,905m2 of forest land, which are located within the boundary of the final judgment of this case, and the subject matter of the lawsuit of this case is identical to the amount of the lawsuit of this case, and even if the Defendant still used it as a result of the above final judgment of this case, it cannot be seen that the Defendant still used the land in the above land located within the final judgment of this case.

Therefore, we cannot accept the plaintiff's above argument.

○ Meanwhile, res judicata of a final and conclusive judgment recognized for legal stability may not be easily excluded unless the judgment is revoked by a suit for retrial, even though the contents of the judgment differs from the substantive legal relationship. Therefore, in a judgment ordering the payment of periodic payments, the assertion that there is a change in circumstances that form the basis for calculating the amount of periodic payments in a judgment ordering the payment of periodic payments would be interrupted by res judicata in principle. However, even in special circumstances where maintaining the said judgment is significantly changed after the final and conclusive judgment on the payment of periodic payments is rendered to the extent that it would be difficult for the parties to the said judgment to thoroughly implement the theory of res judicata, even in cases where there are special circumstances that bring about significant harm to equity between the parties. Accordingly, in such a case, a lawsuit seeking to change the amount of periodic payments to which the final and conclusive judgment should be made in accordance with Article 252(1) of the Civil Procedure Act is allowed. Accordingly, in determining whether the amount of periodic payments should be changed by a suit for change in the amount of final and conclusive funds, the parties concerned should be able to bear the strict requirements for examination as much as possible.

In light of the aforementioned legal principles and from the perspective, it is necessary to examine whether there exist special circumstances to the extent that maintaining the above final judgment is significantly detrimental to equity between the Plaintiff and the Defendant, as the grounds for calculating the rent for the instant land after the final judgment of the previous suit of this case have been significantly changed to the extent that it would be difficult to expect the original circumstances.

As a special circumstance, the Plaintiff was divided and land category change with respect to the above mountain 1-1 land, which was used as the site for the instant telecommunications relay station after the final and conclusive judgment of this case, and during this process, the land price of the above (name 2 omitted) land where the facilities of the instant telecommunications relay station are mainly located, has increased considerably after dividing, and the Plaintiff was also additionally liable for the increased tax amount. Moreover, even though the land of this case has the unique nature of the site for the communications facilities with high usefulness from the Defendant’s point of view, the land of this case has the reason that the rent rate should be revaluated in order to correct it, without any delay, because it is lower than the rent rate for other areas where the rent rate is used for the same purpose.

However, as the judgment of the first instance court properly stated, the above land was used as 000 square meters for the above 10th 2nd 7th 7th 1st 2nd 6th 7th 0th 1st 6th 1st 6th 6th 1st 6th 6th 6th 1st 6th 6th 1st 6th 6th 1st 6th 6th 1st 6th 1st 6th 6th 6th 1st 6th 6th 1st 6th 6th 1st 6th 6th 1st 206th 1st 206th 1st 206th 1st 206th 1st 6th 1st 206th 1st 3th 206th 1st 4th 206th 1st 206th 1st 3th 207.

In light of the above circumstances, since the instant land, which was included in the said ( Address 1 omitted), was already used as the site for the instant communications relay station from the time when the rent was calculated at the final judgment in the said final judgment, the rent was calculated on the premise that the said land was actually used and there was no particular change in the actual usage status or nature as to the land itself even after the said final judgment, and thus, there was a special characteristic that the instant land is a communications facility site with a high usefulness, from the standpoint of the Defendant, or there was a circumstance that the price of rent for the instant land does not coincide with the rent for other areas where the land was used for the same purpose at the time of the said final judgment, it is difficult to view that the said land falls under a significant change to the extent that it was not originally anticipated in calculating the rent for the instant land after the said final judgment.

In addition, even if the land category of the above ( Address 1 omitted) is divided into four lots including the above ( Address 2 omitted) land for the purpose of management convenience according to the current status of use of the land after the final and conclusive judgment of this case, and the land category of the above ( Address 2 omitted) was changed from forest land to miscellaneous land according to the actual status of use, this only constitutes an administrative change based on the circumstances that existed at the time of the above final and conclusive judgment, and such circumstance also cannot be seen as a significant change to the extent that it was not originally anticipated in calculating rent for the land of this case after the final and conclusive judgment of this case.

In addition, if the rent for the land of this case has risen significantly after the final judgment of this case due to changes in the public record as above, it is difficult to adopt as evidence the evidence the evidence No. 20 evidence submitted as an appraisal report conducted outside the court based on the plaintiff's unilateral assertion, which was insufficient to support the propriety and credibility of all the evidence submitted by the plaintiff. In addition, even if the increase in rent for the land of this case can be recognized to some extent after the final judgment of the court of first instance, according to the result of the appraisal of rent by the appraiser, the non-party 2 and the non-party 3 of the first instance court, as well as the use status and nature of the land of this case after the final judgment of this case, it is difficult to view that there was an objective change in economic situation to attract the increase in rent for the land of this case. In light of the result that the non-party 1 or the plaintiff succeeded to the land of this case led the division and the change of land category immediately after the final judgment of this case, even if the plaintiff bears the property tax additionally from the final judgment of this case.

Therefore, in calculating the rent for the instant land after the final judgment of the previous suit of this case, there is a significant change to the extent that it was not originally anticipated due to the above reasons, and the maintenance of the said final judgment as it is cannot be said that there were special circumstances to the extent that it significantly infringes on the equity between the Plaintiff and the Defendant. Ultimately, the Plaintiff cannot seek for the payment of the increased rent recognized in the final judgment of this case (the Plaintiff, even after the instant special circumstances arise, can at any time prove it and seek the modification of the said final judgment).

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal against it is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge dominion (Presiding Judge)