In the disposition of imposing indemnity against an occupant of state property without permission, whether the disposition of imposing indemnity is legitimate where the grounds for calculating indemnity are not specified in a notice of payment or a prior notice (negative)

Article 56 (4) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 16913, Jul. 27, 2000) applies mutatis mutandis to Article 31 (2) through (4) of the Enforcement Decree of the State Property Act concerning the subject of collecting indemnity, matters to be specified in a notice of payment, procedures for imposing additional dues on an illegal occupant of State property, such as the due date of payment, etc. In light of the purpose of the above Enforcement Decree requiring the unauthorized occupant of State property to specify certain matters in the notice of payment and the strength of the provision, etc. in imposing indemnity, if the disposition authority did not disclose the basis for calculation in the notice of payment or at least prior notice, it is illegal if it has not disclosed the basis for calculation in the notice of payment or at least in the notice of payment, and it is not necessary to specify the basis for calculation because Article 26 and Article 26-2 of the above Enforcement Decree of the State Property Act provides for a provision on the method of calculating the usage fees

Articles 26, 26-2, 31(2), (3), (4), and 56(4) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 16913, Jul. 27, 200); Article 1 of the Administrative Litigation Act / [General Administrative Disposition]

Supreme Court Decision 92Nu13981 delivered on July 13, 1993 (Gong1993Ha, 2317), Supreme Court Decision 93Nu19542 delivered on March 25, 1994 (Gong1994Sang, 1353), Supreme Court Decision 95Nu3824 delivered on December 22, 1995 (Gong196Sang, 575), Supreme Court Decision 99Du2239 delivered on October 13, 200 (Gong200Ha, 2344)

Plaintiff (Law Firm International, Attorney Ha Man-young, Counsel for the plaintiff-appellant)

Head of Busan District Court (Attorney Kim Tae-tae, Counsel for defendant-appellant)

Busan High Court Decision 97Gu8816 delivered on November 26, 1999

The judgment below is reversed, and the case is remanded to Busan High Court.

First of all, the plaintiff's second ground for appeal is examined.

The lower court rejected the Plaintiff’s assertion that the instant disposition was defective due to the lack of the grounds of calculation or rate of indemnity in the notice of imposition of indemnity, on the ground that the notice of imposition of indemnity does not expressly state the rate that is the basis of calculation of indemnity, and the value of the land subject to imposition, etc., but can be seen as a whole by specifying Article 56 of the Enforcement Decree of the State Property Act with which the specific content can be known. Thus, the lower court rejected the Plaintiff’s assertion on the ground that the omission of the above content

Article 56 (4) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 16913, Jul. 27, 2000) applies mutatis mutandis to Article 31 (2) through (4) of the Enforcement Decree of the State Property Act with regard to the subject of collecting indemnity, matters to be specified in a notice of payment, procedures for imposing additional dues on an illegal occupant of State property, such as the payment due date. In light of the purpose of the above Enforcement Decree requiring the unauthorized occupant of State property to specify certain matters in the notice of payment and the strength of the provision, etc. in imposing indemnity, if the disposition authority did not disclose the basis for calculation in the notice of payment or at least prior notice, it is illegal if it has not disclosed the basis for calculation in the notice of payment or at least in the notice of payment due, and it is not necessary to specify the basis for calculation because Article 26 and Article 26-2 of the above Enforcement Decree of the State Property Act provides for the method of calculating usage fees which serve as the basis for calculating indemnity, or it is indirectly stated the basis for calculation by stating the notice of imposition (see Supreme Court Decision 29Du239Du

However, the fact that the notice of this case does not specifically state the rate which is the basis for calculating indemnity, the value of the land subject to imposition, etc. is as recognized by the court below, and there is no such indication in the notice of reduction more than twice after the first disposition on the record, and the notice attached to each notice is not delivered to the court, and it is not clear whether the specific basis for calculating indemnity was specified. However, in the administrative appeal decision filed by the plaintiff as to the disposition in this case, the plaintiff states the basis for calculating indemnity in the back of the notice of indemnity (record 90 pages). Thus, the court below should have determined that the disposition in this case was unlawful, unless there is any evidence to deem that the basis for calculating indemnity was specified in the notice of this case without revealing such basis.

Nevertheless, without examining and determining this point, the court below rejected the plaintiff's assertion that there was no violation of the procedure of imposition and notice of this case. In so doing, it is erroneous in the misapprehension of legal principles as to the procedure of imposition and notice of indemnity, or in the misapprehension of legal principles as to it, which affected the conclusion of the judgment. Accordingly, the plaintiff's ground of appeal pointing this out has merit

Therefore, without examining the remaining grounds of appeal by the plaintiff and the defendant, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)