(영문) 수원지방법원 2012.1.19.선고 2010가합13117 판결

1. The Defendants shall pay to the Plaintiff 195,082,227 won with 5% interest per annum from July 31, 2010 to January 19, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

Defendant Republic of Korea shall pay to the Plaintiff 472,295,282 won, and 669,184,758 won, as well as 20% interest per annum from the day following the last delivery date of the copy of the instant complaint to the day of full payment.

Reasons

1. Basic facts

(a) Permission for occupation and creation of golf courses;

On September 6, 1997, after obtaining permission for occupation and use of each real estate listed in the separate sheet No. 1 through No. 5 (hereinafter referred to as "each land of this case"), the Plaintiff operated a golf course with a trade name, "Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Kad Kad Kad Kad Kad Kad Kad Kad Had Had Had Had Kad Kad

B. Conclusion, etc. of a loan agreement on each real estate listed in the separate sheet No. 1 (hereinafter referred to as "land No. 1 of this case")

(1) From June 18, 2003, the Plaintiff entered into a loan agreement on the land of this case with the customary market delegated by Defendant Republic of Korea with the administrative affairs concerning the management of the land of this case, and renewed the said loan agreement every year.

(2) Meanwhile, under Article 26(1)5 and Article 26(2)1 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 20463, Dec. 28, 2007; hereinafter the same) (amended by Presidential Decree No. 20463, Dec. 28, 2007; hereinafter the same) calculated the property value according to the publicly assessed individual land price as at the time of renewal of the contract, based on the use conditions at the time of renewal of the contract, and calculated the usage fee by multiplying the rate by 50/1,000. Accordingly, the details of the lease fee paid by the Plaintiff from 2006 to 2010 were as follows. In the event the head of the local government administers the affairs concerning the disposal of State property upon delegation, 50% of the lease fee was reverted to the local government; 50% of the lease fee belongs to the Republic of Korea; and 50% of the remainder belongs to the Defendant at the time of renewal.

A person shall be appointed.

(c) Approval for the use, etc. of each real estate in the Schedule 2, 3, and 5 for the site for agricultural infrastructure other than the original purpose;

(1) For the purpose of using the instant land 2, 35 as the site for a golf course, the Plaintiff extended the approval period for use by January 2, 2006 for the instant land 2, 3, and 5 from the KU to the KU, and for the instant land 2, 3, and 5, around January 2007, and around January 1, 2006 for each of the instant land 5, and since each of the instant land was approved for use outside the purpose of each of the site for agricultural infrastructure.

(2) According to Article 3 subparag. 34 of the Ordinance on Collection of User Fees for Land Other than the purpose of agricultural infrastructure when allowing usage fees for the land of this case 2, 3, and 5 each year, the Gamb City calculated the property value according to the officially assessed individual land price for each year pursuant to Article 3 subparag. 34 of the Ordinance on Collection of Usage Fees for Agricultural Infrastructure. Accordingly, the Plaintiff paid KRW 12,522,90 for the land of this case as usage fees for the land of this case 2007 and paid KRW 456,594,90 for the period of 2010, KRW 10,740 for the land of this case, KRW 35,371,570 for the land of this case as usage fees for the land of this case, and KRW 142,240 for the five land of this case as usage fees for the land of this case, and both the Defendant paid KRW 605,70 for the above five land until 2010.

(3) Meanwhile, from around 2001 to around 2006, the Plaintiff made a profit from the land of this case 2 and 3 without permission. In accordance with Article 51 subparagraph 1 of the former State Property Act (amended by Act No. 6560, Dec. 31, 2001; Act No. 9401, Jan. 30, 2009; hereinafter the same), the Plaintiff imposed indemnity pursuant to Article 51 subparagraph 1 of the former State Property Act (amended by Act No. 9401, Jan. 30, 2009; hereinafter the same), and accordingly, the Plaintiff paid indemnity amounting to KRW 131,464,00 as indemnity for the land of this case 206, total amounting to KRW 765,207,00 by 20, KRW 861,410 as indemnity for the land of this case 3, 2006, the remainder of the Defendant’s indemnity amounting to KRW 3640% of the State Property Act.

D. (1) The Plaintiff has extended the period of permission for use and profit-making as to each real estate listed in the separate sheet No. 4 (hereinafter referred to as “instant land”) by 2010 (6) after obtaining permission for use and profit-making pursuant to Article 24 of the former State Property Act with respect to the instant land No. 4 around January 2006 from the head of the Gu, which is the wife of the Republic of Korea, who is delegated by the Defendant Republic of Korea with the affairs concerning the management and disposal of the instant land No. 4 to use the instant land No.

(2) Under Article 26(1)5 and Article 26(2)1 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 29 of the current Enforcement Decree of the State Property Act), the head of Yeongdeungpo-si calculated the value of the property according to the officially assessed individual land price based on the use conditions at the time of renewal of the contract, and calculated by multiplying the usage fee by 50/1,000. Accordingly, the Plaintiff paid a total of KRW 13,933,640 by 2010, including the payment of KRW 6,959,70 in 2006. The above usage fee was 50% among them pursuant to the former Enforcement Decree of the State Property Act, and the remaining 50% was reverted to the Republic of Korea and the Defendant at the time of the renewal of the contract.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, 7, 9 (including each number, hereinafter the same shall apply), Eul evidence 1 to 4, the purport of the whole pleadings

2. Relevant statutes;

With respect to the loan of state property, the provisions on the method of assessing state property under the Enforcement Decree of the State Property Act and the State Property Act have been amended several times as follows:

[State Property Act (amended by Act No. 7325 of Dec. 31, 2004, and amended by Act No. 9401 of Jan. 30, 2009)]

Article 25 (User Fee)

(1) When using or making profits from administrative property or conservation property (hereafter referred to as "administrative property, etc." in this Chapter) is permitted, usage fees shall be collected each year according to the rates and methods prescribed by Presidential Decree.

Article 32 (Institution of Administration and Disposal)

(3) The office of general administration may delegate part of the administrative affairs concerning administration and disposal under the main sentence of paragraph (1) and paragraph (2) to public officials belonging to the office of general administration, management agencies or public officials belonging thereto, the heads of local governments or public officials belonging thereto, or entrust them to persons prescribed by Presidential Decree as government-invested corporations, financial institutions, investors, investment brokers

(6) Rent charges, proceeds from sale, revenues from trust, or indemnities for state-owned property prescribed by Presidential Decree, from among state-owned property delegated or entrusted to the management and disposal under paragraphs (3) and (4), may, notwithstanding the Budget and Accounts Act, be reverted to the delegated or entrusted person

Article 38 (Loan Charges, Rescission of Contracts, etc.)

(1) The provisions of Articles 24 (3), (4) and (6), 25 (1), (2) and (4), 25-2, 26 and 28 shall apply mutatis mutandis to the restriction on lending of miscellaneous property, loan charges, free loans, and the cancellation or termination of loan contracts.

[State Property Act (amended by Act No. 9401 of Jan. 30, 2009)]

Article 32 (User Fee)

(1) When administrative property is permitted to use, usage fees shall be collected each year according to rates and calculation methods prescribed by Presidential Decree.

Article 42 (Delegation or Entrustment of Affairs of Administration and Disposal)

(1) The office of general administration may delegate part of the administrative affairs concerning disposal of general property under Article 8 (1) to public officials belonging to the office of general administration, administrative agencies or public officials belonging thereto, the heads of local governments or public officials belonging thereto, or entrust them to persons prescribed by Presidential Decree, who are government-invested corporations, financial institutions, investment traders or investment brokers

(6) Rent charges, proceeds from sale, proceeds from development, or indemnity of general property prescribed by Presidential Decree among general property which are managed or disposed of under the delegation or entrustment pursuant to paragraphs (1) and (4) may revert to the delegated or entrusted person, as prescribed by Presidential Decree, notwithstanding Article 17 of the National Finance Act and Article 7 of the Management of the National Funds Act.

Article 47 (Restriction on Loan Charges, Rescission of Contracts, etc.) Articles 30 (2), 31 (1) and (2), 32, 33, 34 (1) 2 and 3, 34 (2), 36 and 38 shall apply mutatis mutandis to the restriction on loan of general property, loan charges, exemption from loan charges, and rescission or termination of loan contracts, etc.

Article 26 of the Enforcement Decree of the State Property Act (amended by Presidential Decree No. 20463 of Dec. 28, 2007)

(1) The annual user fee provided for in Article 25 (1) of the Act shall be the amount calculated by multiplying the value of the relevant property by the rates in the following subparagraphs, and may be calculated monthly or daily:

1. Where it is necessary for the accomplishment of administrative or conservation purposes: not less than 25/100;

2. Where it is necessary for the welfare of public officials: not less than 40/100 but not less than 3. In the case of cultivation: 10/100 or more: 4. In the case of residential use: 25/100 or more: 5. Other cases: 20/100 or more.

1. In the case of land: The officially assessed individual land price of the relevant land under the Public Notice of Values and Appraisal of Real Estate Act (referring to the amount computed on the basis of the officially assessed individual land price, if no, pursuant to Article 9 of the same Act); and

Article 34 (Reversion of Loan Charges, etc.)

(1) "State property as prescribed by Presidential Decree" in Article 32 (6) of the Act means the property falling under any of the following subparagraphs:

1. Real estate and appurtenances thereto;

(3) In cases falling under paragraph (1) 1, the scope of loan charges, proceeds from sale, trust earnings, or indemnities (hereinafter referred to as "reverted money") which may revert to the relevant local government shall be as follows:

2. In cases of loans, 50/100 of the loan charges [the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 21641, Jul. 27, 2009)] Article 26 (Rate of Rental Fees and Evaluation Method)

(1) The annual user fees under Article 25 (1) of the Act shall be the amount calculated by multiplying the value of the relevant property by the following rates, in consideration of market rents, and may be calculated monthly or daily:

1. Where it is necessary for the accomplishment of administrative or conservation purposes: not less than 25/100;

1. In cases of land: The officially assessed individual land price (referring to the amount computed on the basis of the officially assessed individual land price under Article 9 of the Public Notice of Values and Appraisal of Real Estate Act, if no officially assessed individual land price exists for the relevant land) shall be applied;

Article 34 (Reversion of Loan Charges, etc.)

(1) "State property as prescribed by Presidential Decree" in Article 32 (6) of the Act means the property falling under any of the following subparagraphs:

1. Real estate and appurtenances thereto;

2. In cases of loans, 50/100 of the loan charges [the Enforcement Decree of the State Property Act (amended by Presidential Decree No. 21641, Jul. 27, 2009];

Article 29 (Methods of Calculating Usage Fee Rates and Fees)

(1) The annual user fee under Article 32 (1) of the Act shall be an amount calculated by multiplying the value of the relevant property by a rate of at least 50/1000, and may be calculated in a monthly or daily manner: Provided, That in any of the following cases, the value of the relevant property shall be calculated by multiplying the value of the relevant

1. For the purpose of farming: at least 10/1000;

2. For residential purposes: At least 20/100, but at least 3. For administrative purposes: At least 25/100, where used for the welfare of public officials: at least 40/100, and (2) The value of the relevant property when calculating the usage fee pursuant to paragraph (1) shall be calculated by the following methods:

1. Land: The officially assessed individual land price (referring to the publicly assessed individual land price of the relevant land under Article 11 of the Public Notice of Values and Appraisal of Real Estate Act, and, if no officially assessed individual land price of the relevant land exists, referring to the amount calculated based on the officially assessed individual land price under Article 9 of the same Act; hereafter the same shall apply in this Article and Article

Article 39 (Reversion of Loan Charges, etc.)

(1) "Property prescribed by Presidential Decree" in Article 42 (6) of the Act means any of the following property:

1. Real estate and appurtenances thereto;

(2) In cases falling under paragraph (1) 1, the scope of loan charges, proceeds from sale, trust earnings, or indemnities (hereafter referred to as "reverted money" in this Article) which may revert to the relevant local government shall be as follows:

1. In cases of loans: 50/100 of loan charges;

3. Determination

A. Claim for return of unjust enrichment on the land of this case

(1) Return of unjust enrichment

(A) The “value of the pertinent property”, which serves as the basis for calculating loan charges for State property, shall not be based on the status of change in the value of the State or public property leased by the possessor of the State or public property through his/her own cost and effort after the commencement of possession, unless there are special circumstances, but on the basis of the status of actual use at the time when the possessor begins possession. The same applies to a case where a loan contract was concluded after the commencement of possession with the first permission for occupation or use or profit-making of the State or public property (see, e.g., Supreme Court Decisions 98Du17647, 17654, Feb. 12, 199; 97Nu4098, Jan. 28, 200; 202Da20995, Oct. 28, 2004).

In light of these legal principles, the Plaintiff created a golf course with his own effort and cost in each land of this case for which the Plaintiff obtained an occupancy or use permit. Accordingly, the most land category of this case was changed to a sports site and the individual land price increase, and thus, the value of the property as the basis for calculating the rent for the land of this case has increased. Thus, barring any special circumstances, the value of the property as the basis for calculating the rent for the land of this case should be calculated on the basis of the land value reflecting only the natural increase in the land price before the Plaintiff started possession and development as the site for a golf course. In assessing the value of the land of this case, the Defendants did not comply with the above evaluation method and did not evaluate the value of the property by presenting the use condition (g) of the land of this case for which the price has increased at the Plaintiff’s effort and cost. Accordingly, from 2006 to 2010, the Defendants were obliged to return the rent exceeding the reasonable amount calculated on the basis of the above evaluation method without any legal grounds. Therefore, the Defendants were obligated to return it as unjust enrichment.

(B) As to this, the Defendants: (1) Defendant Young-si pursuant to the Enforcement Decree of the State Property Act.

After calculating the property value according to the publicly assessed individual land price as at the time of the renewal of the loan agreement, the loan fee was calculated by multiplying the market rent by the rate of use fee in consideration of the market rent. As such, the acquisition of the loan fee calculated pursuant to the provisions of the Enforcement Decree of the State Property Act does not constitute unjust enrichment. ② The loan contract for State property is a juristic act by the State on an equal footing with the other party as a private economic subject, and the Plaintiff and the Defendant-si-si-si agreed to determine the officially assessed individual land price of the relevant land according to free will as the standard for calculating the loan fee. Therefore, the acquisition of the loan fee does not constitute unjust enrichment. ③ Since the provision on the method of calculating the loan fee under the State Property Act and the Enforcement Decree of the same Act is not effective, even if the loan fee was calculated in violation of the above provisions in the loan contract for the land of this case, the acquisition of the loan fee does not constitute unjust enrichment. ④ Since the Plaintiff paid it with knowledge that there was no obligation to pay the amount exceeding the reasonable loan fee,

1) First of all, if the property value is calculated according to the officially assessed individual land price calculated based on the actual usage conditions at the time when the possessor starts possession of the land in accordance with the Enforcement Decree of the State Property Act, which is changed from the actual usage conditions at the time of the renewal of the loan contract, it would be based on the usage conditions at the time of the extension of possession, and thus, it would result in an unreasonable outcome in light of the principle of equity, etc., in calculating the property value, which serves as the basis for the calculation of the loan charges, and the provisions of the Enforcement Decree of the State Property Act, which provides for the application of the officially assessed individual land price at the time of the relevant land, shall apply to the case where the Plaintiff raised the value of the land in question with his own cost and effort and renewed the loan contract, and thus, this part

2) Next, as to the assertion (2), the Office of Administration managing State-owned property has the obligation to calculate the rent as prescribed by the State Property Act and the Enforcement Decree of the same Act. Although the nature of the loan contract for State-owned property is a private contract, if the country with the superior position calculates the rent in violation of the statutes even if it is a private contract and concludes the loan contract with the amount, it would be deemed that the loan contract exceeding the scope prescribed by the statutes of the loan contract is null and void. Therefore, the Defendants’ assertion on the different premise is without merit.

3) Next, in calculating the rent for the land of this case, the amount of the rent for the land of this case should be calculated on the basis of the land price reflecting only the natural increase in the land price before the plaintiff commenced possession and developed it as a golf course site. However, as Defendant Gi-si did not follow the above evaluation method and assessed the property value by considering the utilization state of the land of this case where the price is increased at the Plaintiff’s effort and cost pursuant to the Enforcement Decree of the State Property Act without complying with the above evaluation method, the Defendants bears the duty of return of unjust enrichment for the portion exceeding the rent properly calculated according to the above evaluation method among the rent paid by the Plaintiff. On other premise, even if Defendant Gi-si calculated the rent for the land of this case in violation of the provisions of the Enforcement Decree of the State Property Act, the acquisition of the rent constitutes unjust enrichment.

This part of the argument that this does not require further consideration is without merit.

4) Lastly, the Defendants’ assertion on this part is without merit, inasmuch as there is no evidence to support that the Plaintiff paid the loan fee as the loan fee exceeds the adequate loan fee, and there is no evidence to support the fact that the Plaintiff was aware that there was no obligation to pay the loan fee.

(2) Scope of return of unjust enrichment

(A) According to the appraiser A’s appraisal result, the pertinent individual land price per unit area shall be calculated from 2006 to 2010 on the premise that the Plaintiff’s use condition of the instant land was prior to 1997, i.e., forest land, roads, etc. at the time when the Plaintiff started possession, reflecting natural land price fluctuations, etc., and the reasonable rent for the instant land is calculated by multiplying the property value calculated by multiplying the loan area by the loan area. The adequate rent for the instant land is indicated below.

A person shall be appointed.

(B) From 2006 to 2010, the sum of the loan charges that the Plaintiff paid to the Plaintiff is KRW 717,788,170; the sum of the appropriate loan charges is KRW 327,623,716; and the loan charges that the Plaintiff paid to the Defendants belonged to the Defendants, as seen earlier. As such, the Defendants are obligated to return unjust enrichment to the Plaintiff each [390,164,454 won + [390,78,170 won total of the loan charges that the Plaintiff paid to the Plaintiff (= KRW 327,623,716), X1/2], and delay damages therefrom.

B. Claim for return of unjust enrichment on the land of this case 2, 3, 4, and 5

(1) The plaintiff's assertion

In calculating the fee or indemnity for the land of this case 2, 3, 4, and 5, the head of the Dong-si Si/Man-si was based on the value of the land in the present state created by the plaintiff's cost and effort. Accordingly, the amount corresponding to the increase in the value of the land by the plaintiff's cost and effort among the fee or indemnity paid by the plaintiff constitutes unjust enrichment of the defendants, and the defendants are obliged to return it to

(2) Determination

In light of the above facts, the plaintiff was using the land of this case 2, 3 from around January 2001 to around 2006 without permission and imposed indemnity pursuant to Article 51 (1) of the former State Property Act. The plaintiff was using the land of this case after obtaining permission for use other than the purpose of the site for agricultural infrastructure in the land of this case from around January 2006 to around January 2007. The plaintiff was using the land of this case with the permission for use and profit-making from the head of the Si/Y-si around January 2006. The plaintiff was using the land of this case after obtaining the permission for use and profit-making from the land of this case from the head of the Si/Y-si around January 206. Thus, since the disposition of indemnity, approval for use, permission for use and profit-making is an administrative disposition conducted in a superior position with public power by the head of the Si/Y-si and the head of the Si/Gun/Gu, it is valid and void as a legitimate disposition of imposition.

It is not possible for the Defendants to gain profits from the fees or indemnities paid without any legal grounds.

However, the imposition of usage fees or indemnities for the land of this case 2, 3, 4, and 5 at the time of the commencement of possession by the possessor of the land in question is illegal as it does not evaluate the property value of the land in question at the time of the commencement of possession. However, as seen earlier, in light of the fact that the head of the Shi-Kun-si Office calculated usage fees or indemnities in accordance with the provisions on the method of calculating the property value, which serves as the basis of calculating usage fees or indemnities in the Ordinance on Collection of Usage Fees for Non-Agricultural Infrastructure in the Enforcement Decree of the State Property Act or the Ordinance on Collection of Usage Fees for Non-Agricultural Infrastructure, etc., the above imposition of usage fees or indemnities is not sufficient to recognize that the above disposition of imposition of usage

Therefore, this part of the plaintiff's assertion is without merit.

C. Sub-committee

C. In addition, the Defendants shall pay to the Plaintiff the amount calculated by each of the annual rates of KRW 195,082,227 as well as the annual rates of KRW 20 per annum as stipulated in the Civil Act from July 31, 2010, the date of this decision, which is deemed reasonable for the Defendants to dispute the existence or scope of the obligation, from July 31, 2010 to the date following the last delivery of the complaint of this case, with respect to the return of unjust enrichment.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of each of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, judge and assistant judge;

Judges Yang Yang-ho

Judges Kim Gin-type

Note tin

1) However, around June 18, 2003, after entering into a loan agreement with respect to the whole land of this case from the time of the loan agreement to the time of renewal of the contract in 2006, however, the loan agreement was concluded;

From the renewal of the contract in 2007 only with respect to the land remaining 106 parcels except for the real estate listed in the No. 1 List among the land of this case

The loan agreement was concluded.

2) Each real estate listed in the separate sheet No. 2, hereinafter referred to as the "land No. 2", and each real estate listed in the separate sheet No. 3, is called the "land No. 3", and Attached No. 5

The 'real estate recorded in the list' is the 5th land.

3) However, with respect to the land of this case 20,100 meters out of the total area, the land of this case 3 is about the part 1,482 out of the total area.

5 Land was approved for the use of 32 meters out of the total area.

4) The amount of usage fees for farmland improvement facilities other than the purposes of Article 3 (User Fees) shall be as follows:

3. In a case where the land which is the site for facilities is used or used, the officially announced land price of such land (the publicly announced land price is not determined;

equivalent to 10/100 of the appraised value by an appraisal business entity under the Act on Publication of Land Prices and Evaluation of Land, etc. (referring to the appraised value by an appraisal business entity);

(1) An amount: Provided, That where appraisal expenses are deemed excessive in light of the annual amount of expenses collected, a person who has similar usefulness;

The officially announced value of the neighboring land shall apply.

5) Possession or use of state property without obtaining permission for lease or use of or profit from state property under this Act or other Acts.

A beneficiary (a person who continues to use or profit from state property without obtaining a loan, use or profit-making permit, etc. after the period of loan or use or profit-making permit expires

(including a person who has used or profited from the property) shall rent or use the property under the conditions as prescribed by the Presidential Decree.

An indemnity equivalent to 120/100 of the indemnity shall be collected.

6) However, permission was obtained for the portion of 365 square meters out of the total area of the instant 4 land.

7) The Defendants, based on Article 62(3)1 of the Enforcement Decree of the Forestry Act, committed by the Plaintiff against the Defendants on the ground of unjust enrichment of the portion exceeding the appropriate loan charges.

On the premise of seeking restitution, the Plaintiff’s assertion is without merit since only part of each land of this case falls under the forest where the Forestry Act applies.

However, the part that exceeds the appropriate loan charges against the defendants on the ground of Article 62(3)1 of the Enforcement Decree of the Forestry Act.

Since there was no argument in the purport of claiming return of unjust enrichment, this part of the defendants' assertion is not to be judged separately.

8) However, in a case where the rent of the previous year increases by at least 10%, the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 19806, Dec. 29, 2006)

§ 27-2 (the fee for the pertinent year adjusted under Article 25-2 of the Act) shall be calculated by the formula in the attached Table according to the rate of increase.

was calculated in accordance with the amount withdrawn.