Where the possessor who has leased State or public property has increased the value by his/her own expenses and effort after the commencement of occupation, the method of assessing the relevant land value which serves as the basis for the calculation of rent.

Article 26(1) and (2)1 (see current Article 29(1) and (2)1 (see current Article 29(2)1) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 20463, Dec. 28, 2007); Article 26(1) and (2)1 (see current Article 29(2) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009); Article 29(1) and (2)1 (see current Article 29(2)1) of the Enforcement Decree of the State Property Act; Article 29(2)1 of the former Enforcement Decree of the Local Finance Act (wholly amended by Presidential Decree No. 1926, Dec. 30, 2005); Article 92(1) of the former Enforcement Decree of the Local Finance Act (see current Enforcement Decree of the Public Property Act; Article 31(1) and (2)1)1) and (3)1) of the current Enforcement Decree of the Public Property Act

Supreme Court en banc Decision 96Nu3951 Decided August 23, 1996 (Gong1996Ha, 2894) Supreme Court Decision 2002Da20995 Decided October 28, 2004 (Gong2004Ha, 1923) Supreme Court en banc Decision 2011Da83431 Decided January 17, 2013 (Gong2013Sang, 329)

Taesung Tourism Development Co., Ltd. (Attorney Han Han-soo, Counsel for the defendant-appellant)

Emju-si and one other (Law Firm Daun, Attorneys Min Byung-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na36796 decided August 17, 2011

Of the part against the Defendants in the judgment below, the part of unjust enrichment and damages for delay on and after July 31, 2009 as to the land indicated in the attached list 2 through 5, 7, 9 through 11 of the judgment below shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The Plaintiff’s appeal and the remaining appeal by the Defendants

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. Article 26(1) and (2)1 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 20463, Dec. 28, 2007; hereinafter “Enforcement Decree of the State Property Act”) provides that “individual land price” under the Public Notice of Values and Appraisal of Real Estate Act shall be applied to the relevant land under the Public Notice of Values and Appraisal of Real Estate Act, and Article 26(1) and (2)1 of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009; hereinafter “Enforcement Decree of the State Property Act”) provides that the rent shall be calculated by multiplying the value of the relevant land by a certain rate, and that the price of the relevant land shall be calculated based on the publicly announced individual land price under Article 26(1) and (2)1 of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Dec. 1, 2007).

Meanwhile, Article 92 (1) and (2) 1 of the former Enforcement Decree of the Local Finance Act (wholly amended by Presidential Decree No. 19226, Dec. 30, 2005; hereinafter “Enforcement Decree of the Local Finance Act prior to the wholly amended by Presidential Decree No. 19226, Dec. 30, 2005; hereinafter “Enforcement Decree of the Local Finance Act”) provides that the rent shall be calculated by using the “the officially announced individual land price (the publicly announced individual land price of the relevant land shall be calculated on the basis of the officially announced individual land price under Article 10 of the same Act, if there is no publicly announced individual land price of the relevant land, the rent shall be calculated on the basis of the publicly announced individual land price of the neighboring land adjoining the relevant land boundary, and the publicly announced individual land price of the relevant land shall be calculated on the basis of the publicly announced individual land price under Article 10 of the same Act, and Article 92 (1) and (2) 1 of the former Enforcement Decree of the Public Property Management Act (amended by Presidential Decree No. 1927, Dec. 1, 27, 201).

The Supreme Court held that Article 26 (2) 1 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 15026, Jun. 15, 1996), which is similar to “individual land price” under the Enforcement Decree of the State Property Act prior to the amendment in 2007, which is the basis for calculating rent for land which is a State or public property, or “the officially announced land price” under the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 16709, Feb. 14, 200) or Article 26 (2) 1 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 16709, Feb. 14, 200), which is similar to “the publicly announced land price” under the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 16709, Feb. 9, 200; Presidential Decree No. 2019, Feb. 9, 2009).

However, after the amendment of the Enforcement Decree of the State Property Act in 2009, the basis for calculating the pertinent land price, which serves as the basis for calculating the rent for the land which is a State-owned general property, is changed from the “former publicly announced individual land price” to the “official land price at the time of determining the property value at the time of determining the property value to calculate the rent.” The individual land price at the time of determining the property value to calculate the rent, as it is actually used at the time of the determination of the property value, is determined by assessing the actual use of the relevant land at the time of the determination of the property value. If the legislative purpose of the amendment as mentioned above changes the form and quality of the land, then the profit from use is increased or decreased accordingly. In light of the fact that it is reasonable to reflect such phenomenon as it is, and then, it is reasonable to deem that the above revised provision of the “official land price at the time of determining the property value” includes a simple “individual land price” or any provisions different from the former provisions in which the phrase “formerly” is added.

Therefore, even if a possessor who received a loan of land which is a State-owned general property increases the value by his own cost and effort after the commencement of possession, the value of the relevant property should not be assessed based on the actual status of use at the time of commencement of possession as of July 31, 2009, which was the enforcement date of the Enforcement Decree of the State Property Act amended in 2009, rather than on the basis of the actual status of use at the time of commencement of possession, and the relevant value of property should be calculated based on the actual status of use at the time of new conclusion or renewal of a loan contract. This also applies to a case where a loan contract is newly concluded after obtaining a permit for occupation or use or profit-making of State-owned property as of January 17, 2013 (

B. According to the reasoning of the judgment below and evidence duly adopted and examined by the court below, ① the Plaintiff has obtained permission to occupy and use each land listed in the annexed list of the judgment below, which is State property, from Defendant Inju City, and constructed a golf course with respect to each of the above land and its surrounding land. From September 23, 1998, the Plaintiff operated a golf course with the trade name, “Sk Ballast Ships Convention” (the first trade name was changed from May 28, 2002 to the trade name as of May 28, 200). ② The land listed in the annexed list 2 through 5, 7, 9, and 11 of the judgment below, which was used in the original river and road, was changed to the category of the land as sports site (the use of administrative property was discontinued around that time), ③ the Plaintiff and the head of the Gun, who had been delegated the ownership of the above land with the State property at the time of renewal or renewal of the loan agreement with the Plaintiff as the State property at issue.

In light of the legal principles as seen earlier, the following conclusion is derived.

(1) First, with respect to the loan charges on the above-mentioned 2 to 5, 7, 9, and 11 land, which are State property prior to the enforcement of the Enforcement Decree of the amended State Property Act in 2009, the loan charges corresponding to the portion where the Plaintiff increased the value of each of the above lands by its own cost and effort in accordance with the aforementioned legal principles, i.e., the loan charges reverted to the Defendants, which are the amount obtained by deducting the appropriate amount of the loan charges calculated under the premise of the actual conditions of use of each of the above lands at the time of commencing possession of each of the above lands,

The court below is just in determining the same purport, and there is no error in the misapprehension of legal principles concerning the calculation of rent for State-owned general property.

(2) On the other hand, the loan charges for each of the above lands after July 31, 2009 when the Enforcement Decree of the State Property Act amended in 2009 came into effect shall be calculated by multiplying the price of each of the above lands calculated by applying the officially assessed individual land price based on the actual conditions of use at the time of renewal of the loan agreement being used as a golf course, barring any special circumstances in accordance with the aforementioned legal principles. As long as the head of Si/Gun, who is the pertinent management agency, calculates and receives the loan charges accordingly, even if the above loan charges accrue to the Defendants, this is merely the Plaintiff’s performance of obligations under the above loan agreement, and it cannot be deemed that the Defendants obtained unjust profits without any legal grounds

Nevertheless, the court below accepted the plaintiff's claim for return on July 31, 2009, on the grounds stated in its reasoning, as to loan charges after July 31, 2009, equivalent to the loan charges that the plaintiff increased the value of the above 2 through 5, 7, 9, and 11 with its own expenses and effort, i.e., loan charges reverted to the defendants, the amount calculated by deducting the amount equivalent to the loan charges calculated reasonably under the premise of the actual conditions of use of each of the above land at the time when possession of each of the above land was commenced, since there is no legal cause, and thus, there was no unjust enrichment by the defendants. Accordingly, the court below erred by misapprehending the legal principles as to the calculation of loan charges of State-owned general property after the enforcement date of

2. Plaintiff’s ground of appeal

A. As to the misapprehension of legal principles as to unjust enrichment related to land 1, 6, and 8 attached Table 1 of the judgment below

The lower court, based on its stated reasoning, determined that the Plaintiff could not be deemed to have suffered unjust enrichment from the Plaintiff on the grounds that the Plaintiff had the right to obtain the benefits of use in relation to the real owners of the said land 1, 6, and 8, and that it could not be deemed that the damage was incurred to the Plaintiff due to the cancellation of the land lending contract

In light of the relevant legal principles and records, we affirm the judgment of the court below, and there is no error of law by misunderstanding legal principles as to unjust enrichment.

B. As to the misapprehension of the legal principles as to the imposition of land-related usage fees on the attached list 12 through 15 of the judgment below

(1) The part on imposition of usage fees on the land before the enforcement of the Enforcement Decree of the State Property Act amended in 2009

The lower court, based on its stated reasoning, determined that the Defendants’ imposition of the above usage fee cannot be deemed as clear, and thus, cannot be deemed as null and void.

In light of the relevant legal principles and records, we affirm the judgment of the court below, and there is no error in the misapprehension of legal principles as to the invalidation of an administrative act.

(2) The part on the imposition of usage fees for the above 12 to 15 land after July 31, 2009, when the Enforcement Decree of the State Property Act amended in 2009 was enforced.

According to the reasoning of the lower judgment and the evidence duly adopted and examined by the lower court, the land category of the above 12-15 is still being used as a road or a golf course course course course course course and a landscape area, and the head of the relevant Si/Gun annually collects user fees from the above 12-15 land, which is an administrative property, based on the disposition of permission for use and profit-making under the State Property Act, and the aforementioned 12-15 land was used as a golf course, and the usage fees are collected by multiplying the value of the land calculated by applying the officially assessed individual land price, based on the actual use condition at the time

Examining the above facts in light of the legal principles as seen in Section 1-A (A) above, barring any special circumstance, the user fee for the above 12-15 land after the enforcement of the Enforcement Decree of the State Property Act amended in 2009 shall be calculated by multiplying the land price calculated by applying the officially assessed individual land price based on the actual utilization condition in which the above 12-15 land is being used as a golf course. Thus, as long as the head of Si/Gun, who is the pertinent management agency, received the imposition of the user fee and received it, it cannot be deemed that the Defendants obtained unjust benefits without any legal cause.

Although this part of the judgment of the court below is not appropriate, it is just in the conclusion that rejected the plaintiff's claim for return of unjust enrichment, and there is no error in the misapprehension of legal principles as argued in the

3. Conclusion

Therefore, among the part against the defendants in the judgment of the court below, the part of unjust enrichment and damages for delay on and after July 31, 2009 as to land Nos. 2 through 5, 7, 9, and 11 listed in the annexed list of the judgment below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The plaintiff's appeal and the remaining appeal by the defendants shall be dismissed. It is so decided as per Disposition by the assent

Justices Kwon Soon-il (Presiding Justice)