2013Na21537 Compensation (as note)

00 Group

Representative A Gun A

Attorney Cho Jae-hee, Counsel for the defendant-appellant

Attorney Park Jong-ho, Counsel for the plaintiff-appellant in charge

1. B

Gyeonggi-do 00 00 Eup/Myeon

2. C

Gyeonggi-do 00 00 Eup/Myeon

3. D;

Seongbuk-do 00 Masan-si 00

4. E.

Daegu Southern-gu Sung-ro

5. F;

Daegu Seo-gu Merchant's Art)

6. G.

Gyeongbuk-do 00 U.S. Mack-si

7. H;

Daegu Southern-gu Gyeong-gu

8. J;

Daegu Seo-gu Standing Rogwon

9. K;

H. J. O. O. H. O. H.

10. L;

Daegu Seog Seo-gu Roundro

[Defendant-Appellant]

Attorney Kim Byung-jin

Daegu District Court Decision 2012Gahap1956 Decided October 24, 2013

October 21, 2015

November 25, 2015

1. Of the judgment of the first instance, the part against the plaintiff falling under the order to pay the following shall be revoked. Each of the Defendants listed in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the same sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in

2. All remaining appeals by the Plaintiff are dismissed.

3. 10% out of the total costs of litigation shall be borne by the Plaintiff, and 90% shall be borne by the Defendants.

4. The part ordering the payment of money under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked. Each of the appeals stated in the separate sheet of claim amount in the separate sheet No. 3 is jointly filed with the plaintiff, and the corresponding amounts in the separate sheet No. 3 shall be the same as the corresponding amounts in the separate sheet of claim amount, and the corresponding dates in the separate sheet of claim No. 8 in the separate sheet of the same Table shall be 5% per annum from September 30, 2015 until September 30, 2015 until September 31, 2015; and the damages claim shall be 15% per annum from the following day to the date of complete payment; and the damages claim shall be made by adding the amounts in the separate sheet of claim No. 8 in the separate sheet of the initial date in the separate sheet of claim and the damages claim No. 208, Oct. 31, 2008 to the date of delivery of a copy of the request for claim; and 1.5% per annum from the next day to September 30, 2015 to the previous claim for damages.

1. Basic facts

A. Status of the Parties

1) In accordance with Article 22 of the Aggregate Extraction Act and Article 33(1) of the River Act, the Plaintiff, a local government, obtained permission to extract aggregate from seven aggregate extraction stations (in the form of a river in the Nakdong River which is a national river within the jurisdiction of the State (the Minister of Land, Transport and Maritime Affairs), from the head of 00 Gun, in the form of a river in the Nakdong River which is a national river within the jurisdiction of the 00-Gun (the Minister of Land, Transport and Maritime Affairs) to extract and sell aggregate. The Plaintiff, a local government, obtained the permission to extract aggregate from the 7th place of aggregate extraction (the area of the aggregate extraction in question, the river area, the village area, the village area, the river area, the guest zone, the river area, the river area, and the mountain area; hereinafter referred to as “the aggregate extraction site in this case”).

2) Defendants B, D, E, F, and K are the petition police officer employed by the Plaintiff and worked at the instant aggregate extraction site. Defendants C, G, H, J, and L are the indefinite contract workers working at the Plaintiff’s place of aggregate extraction. The Defendants, while working for one registered security guard and one inorganic contract worker as two employees, performed duties, such as the expense of the instant aggregate extraction site, the surveillance of the removal of aggregate without permission, etc., while the aggregate extraction company engaged in the duty of care for the removal of aggregate from the instant aggregate extraction site, without permission, extracted aggregate accumulated in a temporary open space (Evidence 1 to 36 of the Evidence 3).

B. Operation of the aggregate extraction place of this case

1) Around January 2006, the Plaintiff selected aggregate aggregate extraction agent as an aggregate extraction agent. The Plaintiff directly sold aggregate extracted from the aggregate extraction site in this case to the aggregate consumers, but the Plaintiff paid fees for the use of equipment to the aggregate extraction agent at the time and according to the volume of the work performed by the aggregate extraction agent. The above aggregate extraction agent used equipment, such as dredging lines, etc., within the scope of the permitted amount of the Plaintiff’s extraction, left the aggregate at a temporary open site and left the aggregate at the time of arrival of the aggregate buyer’s transportation vehicle. The aggregate sale proceeds were collected from the electronic box of the transportation vehicle by the Defendants, and deposited the aggregate into the Plaintiff’s account, and the Plaintiff paid the fees for the use of equipment to the State (Gyeongbukdo) or the agency for collecting aggregate.

2) The Plaintiff confirmed the quantity of aggregate extractions by means of computerized control by establishing an automatic system (a automatic system) with which the aggregate sales program was installed in the instant aggregate extraction site and controlling the access of aggregate transport vehicles. In other words, when a vehicle to transport aggregate enters the instant aggregate extraction site, the Plaintiff passed through a boundary line, and at the same time, the Plaintiff issued a copy of the RF card that the Defendants, the employees of the management guard, contacted the card issuing machine with the vehicle number and issued it to the driver, and at the same time, the transport vehicle, the upper part of which was completed, went through the valley when the transport vehicle was out of the instant aggregate extraction site. At the same time, the said RF card was contacted with the card issuing machine to output the shipment volume and the shipment price calculated.

3) The Defendants, the management primary employees, recovered the said RF card from the driver of the aggregate transport vehicle and received the aggregate amount indicated on the shipment certificate each day, settled the sales amount on the day immediately before the end of the business day and deposited into the Plaintiff’s account. The Defendants, the management primary employees, bound the original shipment certificate and the details of the daily aggregate removal from the computer system to the public officials in charge of the Plaintiff’s Gun office, and submitted it for approval.

C. The theft of this case and the judgment related to the criminal case became final and conclusive

1) The data processing system established by the Plaintiff at the instant aggregate extraction site is in place of a security function created in the order of data serial numbers (CID) whenever the RF card development function is performed. Thus, even if the employees, etc. of the management center arbitrarily deletes the data related to the removal of aggregate, it was equipped with a security device that enables the public official in charge of the Plaintiff to know the fact of unauthorized deletion of data because the serial numbers corresponding to the deleted data can be identified even if the data are arbitrarily deleted. However, the management center employees were printed out from the daily computer system and submitted the data to the Plaintiff to obtain approval, did not appear in the above data removal details on

2) Accordingly, the Defendants, in collusion with the aggregate extraction agency company of the instant aggregate extraction site, intended to temporarily remove part of aggregate by submitting the details of the aggregate removal arbitrarily deleted from the Plaintiff’s public official in charge, and not depositing the aggregate amount corresponding to the details of the removal removed into the Plaintiff’s account. From April 2007 to March 2010, the Defendants stolen the aggregate amount (hereinafter “the instant act of theft”) in attached Table 1’s calculation table (including the details of the personal theft by the co-defendant), and attached Table 2’s deposit, and the statement of appropriation of the sole obligation (including the details of the personal theft by the single defendant) as stated in the “(i) to (viii)”, which had already been extracted and selected and entered in the temporary open space as stated in the “the instant act of theft” (hereinafter “the instant evidence No. 1, No. 1, 2, 3-2, 3-2, 3-2, 3-1, 2-2, 3-2, 3-2, and 3-2).

3) From March 25, 2011 to October 12, 2011, the Defendants were subject to inspection by the Plaintiff on or around April 201, from March 25, 201 to October 2, 201, and were indicted for committing a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., and between February 16, 2012 to May 21, 2012, Defendant B was sentenced to imprisonment of two years and six months, and KRW 192 million, Defendant C was sentenced to imprisonment of two years and six months, and KRW 12 million, Defendant D was sentenced to imprisonment of two years and six months, and KRW 18 million, and KRW 200,00,000, KRW 300,000, KRW 18 million, and KRW 206,000, KRW 160,000, KRW 268,000, KRW 268,000.

D. Relevant statutes

The statutes relating to the instant case are as follows.

[The meaning of the terms used in this Act is as follows: 1. The term "aggregates" is defined as rocks (limited to rocks for crushed stone) in the natural environment, such as rivers, forests, public waters, or on or under the surface of the earth, etc. (limited to rocks for crushed stone), sand or gravel, and concrete and asphalt concrete materials:

3. The term "aggregate extraction business" means a business of extracting, screening, washing, or crushing (breaking) aggregate for profit, shall be registered with the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si/Gun/Gu (referring to the head of an autonomous Gu; hereinafter referred to as the "head of a Si/Gun/Gu") having jurisdiction over the location of the main office: Provided, That the same shall not apply to cases where the State or a local government intends to operate aggregate extraction business. Article 22 (Permission for Extracting Aggregate) (1) Any person who intends to extract aggregate shall obtain permission from the head of the competent Si/Gun/Gu, as prescribed by Presidential Decree; Article 23 (Relation to Other Acts) (1) of the River Act, if he/she obtains permission to occupy and use a river for any of the following purposes, such as permission to occupy and use the river:

5 . 토석 · 모래 · 자갈의 채취제92조 ( 권한의 위임 · 위탁 등 )① 이 법에 따른 국토교통부장관의 권한은 그 일부를 대통령령으로 정하는 바에 따라 시 ,도지사 또는 소속 기관의 장에게 위임할 수 있다 . < 개정 2009 . 4 . 1 , 2013 . 3 . 2 . 3 >[ 하천법 시행령 ]제105조 ( 권한의 위임 )① 법 제92조 제1항에 따라 국토교통부장관의 권한 중 다음의 권한을 시 · 도지사에게 위임한다 .1 . 국가하천 ( 제2호에 해당하는 국가하천은 제외한다 ) 에 관한 다음 각 목의 권한나 . 법 제33조 제1항 제1호 、 제5호 및 제6호에 따른 하천점용허가 및 그 점용허가의 고1 시

[Reasons for Recognition] Evidence A Nos. 1 through 39 (including branch numbers where no special indication is made; hereinafter the same shall apply)

A. The owner of the aggregate of this case

As seen earlier, since the aggregate that the Defendants stolen was extracted from the state-owned land by the Plaintiff’s aggregate extraction agency, it is a question whether the Plaintiff is the Plaintiff or the Republic of Korea is the person whose ownership was reduced due to the instant theft act.

According to Article 33(1) of the River Act, a person who intends to collect earth and stones, sand, or gravel in a river area shall obtain permission from a river management agency; if a person is subject to Article 23(1)3 of the Aggregate Extraction Act; if a person obtains permission to extract aggregate, he/she shall obtain permission to occupy and use a river under Article 33 of the River Act; and pursuant to Article 4(2)3 of the River Act, a person who intends to constitute a river and its outside.

(E) Each entry of evidence 1 to 4, the purport of the whole pleadings,

No private right may be exercised over river facilities, but the same shall not apply where permission for occupation and use of rivers (limited to cases where a person other than the owner obtains consent from the owner) under Article 33 is used for the permitted purpose.

As seen earlier, according to Article 22(1) of the Aggregate Picking Act and Article 33 of the River Act, the Plaintiff obtained permission to extract aggregate and permission to occupy and use rivers from the head of 00 Gun with the consent of the country, which is the owner of land constituting a river, and the State consented to the Plaintiff’s acquisition of ownership only for the aggregate extraction from among aggregate forming a river by obtaining the Plaintiff’s consent to extract aggregate. The Plaintiff is entitled to exercise private rights for the land constituting a river under the proviso of Article 4(2)3 of the River Act as long as the Plaintiff obtained permission to extract aggregate with the consent of the State, as long as the Plaintiff obtained permission to extract aggregate under the consent of the State, the Plaintiff can exercise private rights for the land constituting a river under the proviso of Article 4(2)3 of the River Act, and aggregate, which is the constituent part of the land forming a river, can be the object of transaction as a net independent object of collecting and separating aggregate from the land constituting a river.

In light of the following circumstances, the owner of the aggregate of this case stolen by the Defendants is recognized as the Plaintiff in light of the aforementioned recognized facts and the purport of the entire pleadings.

① The instant aggregate is part of the aggregate extracted and selected by the Plaintiff’s agency for aggregate extraction at the place of the instant aggregate extraction where the Plaintiff was directly managing the aggregate extraction with the permission to extract aggregate.

② At the same time, the Plaintiff could dispose of aggregate to a third party without the consent of the State. The instant aggregate that the Defendants stolen was part of aggregate that the Plaintiff already disposed of to users, such as aggregate business operators.

③ The Defendants arbitrarily deleted part of the data on the aggregate taken out from the instant aggregate extraction site and stolen the aggregate amount corresponding thereto in a manner that does not withdraw the Plaintiff’s public official in charge from the Plaintiff’s office.

④ From April 2007 to March 2010, when the theft of the instant aggregate occurred, the aggregate permitted by the Plaintiff at the aggregate extraction site of this case is 4,296,619.56 meters. The Plaintiff’s normal sale quantity of aggregate (the part where the data related to the removal of aggregate is not deleted) during the same period is 3,891,573.65 meters. The aggregate quantity (the part where the ground related to the removal of aggregate was deleted) taken out without permission by the Defendants, etc. is 338,510 meters. Thus, the aggregate quantity is 4,230,083.65m (=3,891,573.65m + 338,510m) does not exceed the above permitted quantity.

⑤ All of the aggregate in this case that the Defendants stolen were lawfully extracted and selected within the scope permitted by the Plaintiff and stored in a temporary open site. Even if the Defendants illegally extracted the aggregate in this case from the beginning to the temporary open site for the purpose of removal without permission, the ownership is only attributed to the Plaintiff, the owner of the principal movable property, pursuant to Articles 257 (Attachment between Movables) and 258 (Divorce) of the Civil Act.

B. Determination on the cause of the claim

Therefore, the Defendants are jointly liable to compensate the Plaintiff for all damages incurred by the Plaintiff, who is the owner of the aggregate of this case, due to the instant theft by each theft act (as seen above, insofar as they accept the primary assertion as above, the Defendants do not proceed further to make a determination on the original conjunctive assertion seeking compensation for damages arising from the infringement of the right to extract aggregate).

3. Scope of liability for damages

A. Damages caused by the loss of ownership of the aggregate of this case

Unless there exist special circumstances, the Plaintiff’s losses incurred by the Plaintiff due to the act of theft of aggregate in this case, which was extracted and selected by the Plaintiff, was stolen by means of removing the aggregate from a temporary site, and thus, barring special circumstances, the amount calculated by deducting the Plaintiff’s expenses incurred due to the Defendant’s act of theft from the amount equivalent to the market price of the aggregate in this case, which was extracted and selected from the aggregate extraction site in this case ( therefore, the Defendants’ assertion that “the expense should be based on the market price of aggregate in the original state before it was recovered from the river is not acceptable).

The Plaintiff, due to the Defendants’ instant theft, exempted the Plaintiff from paying the fees for the use of equipment to be paid to the aggregate extraction agent, and was a person who deducteds the expenses.

Therefore, the plaintiff's loss is the corresponding money as stated in the "amount of damages" column of the "amount of damages to the plaintiff in the same table, which is the balance obtained by deducting the corresponding money in the "amount of equipment usage fee" column in the corresponding statement in the "amount of the "amount of theft" column of attached Table 1, which is the amount equivalent to the market value of the aggregate of this case.

As to this, the Defendants asserted that the unit price for the fee for the use of equipment to be deducted shall be the amount calculated by applying the amount of KRW 5,130 per meter of aggregate, KRW 5,000 in the inside area, KRW 5,145 in the free area, KRW 5,200 in the free area, KRW 5,200 in the free area, KRW 5,122 in the guest zone, KRW 5,122 in the apartment zone, and KRW 5,160 in the apartment zone, and KRW 5,160 in the total arguments and arguments. However, in full view of the respective descriptions and arguments stated in subparagraphs 4 through 10, the fees for the use of equipment under the contract concluded by the Plaintiff with the aggregate gathering agency are only the same as the amount that the Plaintiff

(b) Payments and deposits for discharge;

1) The Defendants’ repayment and deposit money

A) On June 3, 2010, the Plaintiff received part of the above amount of damages from Defendant B; KRW 1,900,000 from Defendant C; KRW 1,90,000 from Defendant D; KRW 1,30,000 from Defendant A; KRW 250,000 from Defendant G; KRW 550,00 from Defendant H; KRW 1,60,000 from Defendant JW; KRW 1,80,000 from Defendant L; KRW 2,80,000 from Defendant L; and KRW 50,00 from the Defendants and some of the Defendants as joint tortfeasors of the Defendants; KRW 70,00 from July 25, 2011 to May 11, 2012; KRW 70,000 from the deposit money; and KRW 50,000 from the deposit money; and KRW 70,000,000 from the deposit money to the remainder of the Plaintiff’s joint principal account; and KRW 7575,0,0,07.

【Deposit Statement of Repayment】

A person shall be appointed.

A person shall be appointed.

B) As to this, the Defendants asserted that since the Defendants deposited KRW 60,000,000 in total, each of the 20,000,000 as co-defendants in the related criminal case’s partial repayment of damages, the above deposit amount should also be appropriated for the Plaintiff’s damages.

According to the above quoted evidence and Eul evidence No. 2, both the above quoted evidence and Eul evidence, P, and Q are the site managers of aggregate collection agency, and all of them were indicted for the crime of thief, etc. of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief, etc.) after being indicted for the crime of thief, etc. (the vice branch of the Daegu District Court) from the aggregate extraction site. In the above criminal procedure, it is recognized that the plaintiff deposited KRW 60,000,000 in total with the amount of KRW 20,000 as the principal deposit in each of the above criminal procedure.

However, the above facts and the evidence presented by the Defendants alone are insufficient to recognize that the aboveO, P, and Q either committed a joint tort with the Defendants, or deposited each of the above money with the compensation for damage caused by the instant theft committed by the Defendants. Since there is no evidence to acknowledge otherwise, the above assertion by the Defendants based on this premise is without merit.

2) Legal principles on appropriation of performance and legal provisions on appropriation of performance

In order for a deposit to be effective, the provision of performance to the whole amount of the obligation and the deposit to the whole amount of the obligation is required, and the deposit to the part which is not the whole amount of the obligation does not take effect even with respect to that part. However, if the obligee expresses his/her intention to reserve that the deposit be appropriated for part of the obligation, and receives it, the deposit money shall be appropriated for part of the obligation (see, e.g., Supreme Court Decision 2008Da51359, Oct. 31, 2009).

Where a debtor bears several obligations for the same kind of obligation to the same creditor, if the party concerned does not designate the obligation to be appropriated for repayment, the performance shall be appropriated by law in accordance with Article 477 of the Civil Act. In particular, according to Article 477(4) of the Civil Act, where the order of statutory appropriation of performance is identical under Article 477(4) of the Civil Act, the performance shall be appropriated in proportion to the amount of each obligation (see, e.g., Supreme Court Decision 93Da4938, Feb. 22, 1994)

Unless there are special circumstances, a surety obligation (including a joint and several surety obligation) borne by the person performing the obligation as a surety for another person’s obligation is compared to a surety’s obligation by the person performing the obligation, and a joint and several obligation is compared to a simple obligation, and the person performing the obligation bears the benefit of the repayment respectively (see, e.g., Supreme Court Decision 98Da543, Jul. 9, 199)

In the case of statutory appropriation of performance with respect to several obligations, if there is an obligation which became due and is not yet due, it shall be appropriated for the performance of the obligation which became due (Article 477 subparag. 1 of the Civil Act). If the obligor’s performance is or is not due (Article 477 subparag. 2 of the Civil Act). If the advantage of the obligor is equal, it shall be appropriated for the performance of the obligation which became due first or is to become due (Article 477 subparag. 3 of the Civil Act). If the benefit of the obligor is equal, it shall be appropriated for the performance of the obligation which comes first (Article 477 subparag. 4 of the Civil Act). If the order of statutory appropriation of performance is equal, it shall be appropriated

3) Method of satisfaction of claim

The defendants' assertion to the effect that when the defendants paid the above payment to the plaintiff as compensation for damages caused by the theft of this case, or when they deposited the above payment to the plaintiff for the plaintiff, it does not have been designated as being appropriated for the repayment of any obligation among several obligations to the plaintiff, and that there is no dispute between the plaintiff and the parties as well, the above payment or deposit money should be appropriated for the payment of a certain obligation. Thus, the defendants' assertion to the purport that the above payment or deposit money should be appropriated for the plaintiff's above amount of damages (the designation of the method of appropriation should be made at the time of payment (Article 476 of the Civil Act), and the method of appropriation should be designated at the time of the court of first instance" cannot

The Plaintiff, on the date of the repayment of the Defendants’ respective repayment amounts and deposit amounts (on June 3, 2010) and the respective deposit dates (from July 25, 2011 to May 11, 2012), shall first repay the Defendants’ respective principal repayment amounts to each corresponding principal repayment obligations, and in accordance with the legal principles on appropriation for repayment and the order of statutory appropriation for repayment under Article 477 of the Civil Act, the Defendants shall first appropriate the Defendants’ respective principal repayment obligations in the order of appropriation for repayment. The Defendants’ respective principal repayment obligations shall first be appropriated to each corresponding single joint and several liability, with the remainder appropriated to each corresponding joint and several liability of which the due date first comes into existence, and then the Defendants shall be paid the remainder appropriated in the manner of appropriation for repayment in proportion to each corresponding amount of obligation. This is the method favorable to the Defendants.

그 구체적인 변제충당내역은 피고별 각 해당 단독채무에 대한 충당내역인 별지2 ' 변 제 · 공탁내역 및 단독채무 변제충당표' 중 '①단독채무 변제충당'란의 기재 및 그 충당 후의 잔액(별지2의 표 중 '①충당 후의 공탁 잔액'란 기재의 각 해당 금액 및 별지1의 표 중 '⑨단독채무 변제충당 후의 변제 잔액'란 기재의 각 해당 금액)을 각 부진정연대 채무에 충당하는 내역인 별지1 '인용금액계산표' 중 ' ① 공동채무 변제충당내역'란의 기 재와 같다. 위와 같은 변제충당방법에 따라 변제충당한 후의 원고의 손해 잔액은 별지 1 '인용금액계산표' 중 '① 공동피고별 인용금액'란 기재의 각 해당 금액과 같다 .

C. Sub-determination

Therefore, each of the Defendants listed in [Attachment 1] "Co-defendants" is jointly liable for payment of damages for delay calculated at the rate of 15% as claimed by the Plaintiff, as it is within the scope stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment, to November 25, 2015, where it is deemed reasonable to dispute over the existence and scope of the Defendants' obligations to pay to the Plaintiff each of the relevant money recorded in the "amount of award by co-defendants" in the same table, as claimed by the Plaintiff, and as claimed by the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claims are dismissed, without merit. Since the part of the judgment of the court of first instance which rejected part of the plaintiff's appeal and rendered a different conclusion is unfair, the plaintiff's appeal is partially accepted, and the court of first instance ordered the defendants to pay the corresponding money recognized in the trial. Since the remaining part of the judgment of the court of first instance is determined, the remaining part of the judgment of the court of first instance is justified, and all of the plaintiff's remaining appeals are dismissed as it is without

Article 5 (Presiding Judge)

Freeboard Kim

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Attached Table 2. Deposit Details and Statement of Claim Satisfaction of Single Debt

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Attached 3 List of Claim Amount

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