In a case where the State or a local government imposes and collects rent, etc. according to the original conditions of permission for use and loan agreement without taking measures such as reduction or exemption of rent, etc. under Article 13 of the Foreign Investment Promotion Act and Article 19(1) of the Enforcement Decree of the same Act, even though a domestic company under use was a foreign-capital invested company under the Foreign Investment Promotion Act after having entered into the permission for use and loan contract for the State or public forest (negative),

Article 13(4), (7), and (8) of the Foreign Investment Promotion Act and Article 19(1) of the Enforcement Decree of the same Act provide that the provisions of Article 13(4) and (8) of the same Act shall only provide that the State or a local government may lease the State or public property at a rate lower than the loan rate for domestic enterprises in order to facilitate the attraction of foreign investment. In light of the language of the provision, only the lower limit (at least 10/1,000 of the relevant land value) such as the loan rate, or the “may be reduced or exempted” shall be determined. The specific loan rate, reduction rate, reduction or exemption rate, etc. shall be determined at the time of conclusion of a loan agreement based on discretionary judgment, taking into account all the circumstances such as the type and nature of the State or public property leased by the State or the head of the local government, employment creation and technology transfer therefrom, impact on the financial independence of the State or the local government, even if a domestic company was a foreign-capital invested company after the initial loan agreement, the State or the local government did not impose the loan reduction or exemption agreement.

Article 741 of the Civil Act; Articles 2(1)6, 13(1), (4), (7), and (8) of the Foreign Investment Promotion Act; Article 19(1) of the Enforcement Decree of the Foreign Investment Promotion Act; Articles 25(1) and 38(1) of the State Property Act; Article 26(1) of the Enforcement Decree of the State Property Act; Articles 82(2) and 83(2) of the Local Finance Act; Article 92(1) of the Enforcement Decree of the Local Finance Act; Article 75(6) of the Forestry Act; Article 62(1) of the Enforcement Decree of the Forestry Act

Muju Co., Ltd. (Law Firm Honam General Law Office, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Republic of Korea and one other (Attorney Seo-soo et al., Counsel for the plaintiff-appellant)

May 14, 2004

1. The plaintiff's claims against the defendants are all dismissed.

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

The plaintiff, 1. The defendantless Republic of Korea shall pay 359,040,770 won and 121,078,620 won among them, from June 3, 2002, from April 13, 2003 to 237,962,150 won, from April 13, 2003 to 32,863,850 won, from November 15, 2001 to 8,526,140 won among them, from November 16, 2002 to 24,37,710 won, to 8% amount per annum.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 2, 3-1, 2, 4-1 through 3, 5-1, 2, and 6.

A. On June 13, 1999, the plaintiff (the plaintiff company in mutual name) was established for the purpose of the comprehensive leisure and sports activities and related activities, with respect to the land listed in the attached Table 1, which is state property (hereinafter referred to as the "state forest of this case") from the defendant Republic of Korea (the jurisdiction of the Korea Forest Service): ① the purpose of use for industrial facilities: the purpose of use; ② the period of use: the period of use from June 13, 199 to June 12, 2004; ③ the use fees under the condition that each year pay each year the usage fees determined on the basis of the value of each property calculated pursuant to Article 62 of the Enforcement Decree of the Forestry Act; the defendant Republic of Korea received the payment notice of usage fees in the amount equivalent to 10/100 of the value of each year; and the defendant Republic of Korea paid the usage fees in the amount equivalent to 235,712,790,000 won in March 27, 2002;

B. In addition, on November 15, 200, the Plaintiff entered into a loan agreement with the Defendant Non-Gun on the land listed in the attached Table 2, which is military property (hereinafter referred to as the “military forest of this case”), with respect to ① implementation of park project:

C. However, while the Plaintiff was under legal management since the late 1990s, the Plaintiff was invested in an amount equivalent to 17 billion won from the Bobrogar Ltd. (Ballsbidge Limited) with the English nationality on June 2, 2002. The investment shares are 20.76%.

2. The plaintiff's assertion

The plaintiff became a foreign-invested company from June 2, 2002, and according to Article 13(4) of the Foreign Investment Promotion Act and Article 19(1) of the Enforcement Decree of the same Act, the rent for the State-owned or public-owned land, etc. leased to a foreign-invested company shall be calculated by multiplying the rate corresponding to 10/1,00 of the value of the pertinent land, etc., by the rate corresponding to 10/1,000. However, the defendants collected the rent for the land exceeding the above legal rate (hereinafter referred to as the "rent") from the plaintiff after June 2, 2002. Thus, the defendants asserts that they are obliged to refund the rent erroneously paid by the plaintiff as unjust enrichment.

3. Determination

A. Details of the relevant statutes

(1) Under laws and regulations on the imposition of user fees, etc. for national and public forests and their rates;

Article 25 (1) of the State Properties Act provides that "the use or profit-making of the administrative or conservation property shall be collected each year by the rate and calculation method prescribed by the Presidential Decree." Article 38 (1) of the same Act provides that "the rent of the miscellaneous property shall apply mutatis mutandis, and Article 26 (1) of the Enforcement Decree of the same Act provides that "the annual fee under Article 25 (1) of the Act shall be the amount calculated by multiplying the value of the property by the rate or rent under each of the following subparagraphs and may be calculated monthly or daily rates: Provided, That where other Acts and subordinate statutes provide otherwise, the rent of the State property shall be determined by the Acts and subordinate statutes, and Articles 82 (2) and 83 (2) of the Local Finance Act and Article 92 (1) of the Enforcement Decree of the same Act provide that "the same purport as the above provisions of the State Property Act shall apply mutatis mutandis to the rent of the State property, and Article 75 (6) of the Forestry Act provides that "the collection of rent or rent of the State property shall be determined by the year."

(2) Special provisions on foreign-capital invested companies

Article 2 (1) 6 of the Foreign Investment Promotion Act and Article 2 (2) of the Enforcement Decree of the same Act stipulate that a foreign investor shall use, benefit from, or sell land owned by the State or a local government to a foreign-capital invested company and contribute to the sound development of the national economy by promoting the inducement of foreign investment through the provision of support and convenience. Article 13 (1) of the same Act provides that "the government or the head of a local government may reduce or exempt rents from the State or rents from the State or rents from the State or local government to the foreign-capital invested company," and Article 13 (1) of the same Act provides that "the government or the head of a local government may use, benefit from, or sell the land owned by the State or local government to the foreign-capital invested company, notwithstanding the provisions of Article 25 (1) and Article 38 of the State Property Act and Articles 82 (2) and 83 (2) of the Local Finance Act, and the head of the local government or the government may reduce or exempt rents from the State or rents from the State-owned property in accordance with the Presidential Decree.

B. Whether unjust enrichment is unjust enrichment

However, according to the above provision, the plaintiff's invitation of investment from the U.K.'s representative company (Ballbrege Limited) and the provision of Article 13 (4), (7), and (8) of the Foreign Investment Promotion Act, which is a special provision for foreign-capital invested companies, is excluded from the application of the State Property Act and Article 19 (1) of the Enforcement Decree of the same Act, and the above provision provides for rent reduction and exemption and loan rates lower than the minimum loan rates under the State Property Act and the above Acts and subordinate statutes. However, the above provision is merely a basis for allowing the Republic of Korea to lease national and public property at a rate lower than the loan rate for the domestic company to attract foreign investment. Thus, the above provision merely provides for the minimum loan rate (at least 10/1,000 of the relevant land price) of the State Property Act, which is a special provision for foreign-capital invested company, or that the defendant's exemption or reduction of loan charges and/or exemption of loan charges under the State Property Act, without considering the legal reasons for the above provision on loan contracts and exemption or exemption of loan charges.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is without merit, and all of them are dismissed, and it is so decided as per Disposition. [Attachment 1] The list of real estate (property) is omitted, [Attachment 2]: The list of real estate (property owned by military) is omitted.

Judges Jeong-Gyeong (Presiding Judge)