[Defendant-Appellant] The Korea Development Bank (Law Firm Boba, Attorneys Cheong-ho et al., Counsel for defendant-appellant)

Suwon-si and two others (Law Firm Round et al., Counsel for the plaintiff-appellant)

June 10, 201

1. The plaintiff shall pay to the plaintiff 13,56,785 won to the defendant Republic of Korea, 137,785,415 won to the defendant Young-si, and 124,218,630 won to the defendant Gyeonggi-do, and 20% interest per annum to the day of full payment from May 26, 2011 to the day of full payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Presumed facts

A. Permission to occupy and use the Plaintiff’s golf course

(1) The Plaintiff, around October 3, 1970, operated a golf course with permission to occupy and use for the purpose of creating a golf course on each land listed in the attached Table 1, the land category of which is the Defendant’s property owned by the Defendant Republic of Korea, and each land listed in the attached Table 2, the Defendant Gyeonggi-do’s property (hereinafter collectively referred to as “each land” and “each land of this case”), which is the Defendant’s property owned by the Defendant Gyeonggi-do, and operated a golf course from October 3, 1970 to “Korea-Japan-UAC club.”

(2) On the other hand, the land category of this case was changed into a sports site after the golf course was created.

(b) Conclusion of loan agreements and payment of loan charges;

(1) The Plaintiff entered into a loan agreement on each of the instant lands between Defendant Republic of Korea and Defendant Gyeonggi-do, and operated a golf course upon renewal of the said loan agreement every year. The said loan agreement provides that “The rent shall be determined every year on the basis of the value of each property calculated for each year pursuant to Article 26(2)1 of the Enforcement Decree of the State Property Act.”

(2) Meanwhile, during the period from 2006 to 2010, the Permitted City calculated the value of each of the instant lands according to the publicly assessed individual land price calculated based on the utilization status at the time of concluding a contract where each of the instant lands is used as a golf course, and calculated the rent by multiplying the usage rate by 50/1,000. Accordingly, the details of the rent paid by the Plaintiff for each of the instant lands are as follows.

Land List 1 listed in the List 1 listed in the main sentence of the same year, KRW 5,878,970, KRW 48,224,10, KRW 614,730, KRW 56,538,608, KRW 600, KRW 600, KRW 606,006, KRW 800, KRW 66,516,000, KRW 781,630, KRW 78,410 in total, KRW 37,616,920 in 207, KRW 303,312,960 in 209, KRW 209, KRW 66,516,00 in 206, KRW 8,781,630 in 2010, KRW 37,616,920 in total;

(c) Reversion of loan charges;

According to the Enforcement Decree of the State Property Act, the loan fee paid by the Plaintiff was reverted to the Republic of Korea, the remaining 50% was attributed to the Defendant, and the remaining 50% was attributed to the Defendant, respectively, and according to the Enforcement Decree of the Public Property and Commodity Management Act in the case of the list 2 land, 50% was attributed to the Defendant Gyeonggi-do, and the remaining 50%

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. Relevant statutes;

The provisions concerning loan charges for State or public property shall be 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 (Agency of Administration and Disposal)

(3) The office of general administration may delegate part of the administrative affairs concerning administration and disposal referred to in the main sentence of paragraphs (1) and (2) 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 government-invested corporations, financial institutions, investment traders or investment brokers, or corporations

(6) Rent fees, proceeds from sale, trust earnings, or indemnity for State-owned property prescribed by Presidential Decree from among State-owned property, the administration or disposal of which has been delegated or entrusted under the provisions of paragraphs (3) and (4) may, notwithstanding the Budget and Accounts Act, be reverted to a delegated or entrusted person

Article 38 (Loan Charges, Rescission of Contract, 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 lending, and rescission or termination of loan contracts.

[State Property Act (wholly 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 and Entrustment of Affairs of Administration and Disposal)

(1) The office of general administration may delegate part of the administrative affairs concerning administration and 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 government-invested corporations, financial institutions, investment traders or investment brokers, or corporations prescribed by Presidential Decree,

(6) Rent charges, proceeds from sale, proceeds from development, or indemnity of any general property prescribed by Presidential Decree, the administration or disposal of which have been delegated or entrusted pursuant to paragraphs (1) and (4), may be reverted to any 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 (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, loan charges, exemption of loan charges, and rescission or termination of loan contracts, etc. for any general property.

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

Article 26 (Rates of Rental Fees and Appraisal Method)

(1) The annual user fee under the provisions of Article 25 (1) of the Act shall be the amount obtained 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; and

3. In case of cultivation use: not less than 10/1000;

4. For residential purposes: not less than 25/1000;

5. In other cases: not less than 50/1000.

(2) The value of property in the calculation of a user fee pursuant to the provisions of paragraph (1) shall be calculated according to the following methods:

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 case of loans, 50/100 of the loan charges;

[Enforcement Decree of the State Property Act (amended by Presidential Decree No. 21641 of July 27, 2009)]

Article 26 (Rates of Rental Fees and Appraisal Method)

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

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; and

3. In case of cultivation use: not less than 10/1000;

4. For residential purposes: not less than 25/1000;

5. In other cases: not less than 50/1000.

(2) The value of property in the calculation of a user fee pursuant to the provisions of paragraph (1) shall be calculated according to the following methods:

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

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 case of loans, 50/100 of the loan charges;

[The amendment by Presidential Decree No. 21641 of July 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 not less than 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 relevant rate:

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

2. For residential purposes: at least 20/1000;

3. For administrative purposes: at least 25/1000;

4. In cases of using public officials for their welfare: At least 40/1000.

(2) In calculating user fees pursuant to paragraph (1), the value of the relevant property 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 there is no officially assessed individual land price of the relevant land, referring to the amount calculated based on the officially assessed land price under Article 9 of the same Act; hereafter the same shall apply in this Article and Article 57) as at the time of

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;

[Public Property and Commodity Management Act]

Article 32

(1) When a loan contract for general property is concluded, rent shall be collected each year according to the rate and calculation method prescribed by Presidential Decree.

[Enforcement Decree of the Public Property and Commodity Management Act]

Article 31 (Rate of Rent and Valuation of Loan Property)

(1) Rent of general property under Article 32 (1) of the Act shall be prescribed by municipal ordinance of a local government within the scope of at least 10/1000 per annum of the appraised value of the relevant property reflecting the market price, and may be calculated on a monthly or daily basis.

(2) In calculating rent as prescribed in Article 32 (1) of the Act, the price of the relevant property shall be calculated by the following methods. In such cases, the price of property shall be determined every year during the lease period, but in cases of property, such as a structure, etc. other than a building, for which the appraisal of the number of years elapsed and the residual value rate is impossible, the price may not be determined within five years after the date the

1. In cases of land: It shall be calculated by using the officially assessed individual land price;

3. The parties' assertion

A. The plaintiff's assertion

(1) Under the provisions of the Enforcement Decree of the State Property Act and the Enforcement Decree of the Public Property and Commodity Management Act, the Minister of Land, Infrastructure and Transport, entrusted with the loan affairs of each of the instant lands, is obligated to conclude a loan contract by calculating an appropriate loan charges. The pertinent loan charges of each of the instant lands shall not be calculated based on the publicly assessed individual land price that reflects the increase in prices due to the development of the Plaintiff’

(2) Nevertheless, in imposing loan charges by entering into a loan agreement from 2006 to 2010, the Yongsan City calculated the excessive value of each of the instant lands according to the publicly assessed individual land price calculated on the premise that each of the instant lands is a golf course, and calculated loan charges by multiplying a certain rate (50/1,000). As such, the Defendants should return to the Plaintiff the amount equivalent to the loan charges paid in excess of the reasonable loan charges scheduled under the Enforcement Decree of the State Property Act.

B. The defendants' assertion

In the loan agreement entered into between the Plaintiff and the Defendants, “the officially assessed individual land price of the pertinent land” was agreed to be determined as the basis for the calculation of loan charges, and furthermore, even according to the Enforcement Decree of the State Property Act and the Enforcement Decree of the Public Property and Commodity Management Act, there is a discretion to apply the appropriate rate to the Defendants in calculating loan charges, and thus, the calculation of loan charges for each of the instant land was proper within the scope of such discretion. Therefore,

4. Return of unjust enrichment:

(a) Methods of calculating and calculating appropriate loan charges by the management authority of State or public property;

(1) The State Property Act provides that the State Property Act shall apply mutatis mutandis to the calculation of rent rates and methods for using administrative property to collect rent each year according to the rates and methods prescribed by the Presidential Decree. Accordingly, the Enforcement Decree of the State Property Act provides for detailed methods for calculating rent rates. Despite repeated amendments, the State Property Act provides that the property value shall be calculated according to the publicly announced individual land price of the pertinent land at the time of entering into the loan contract and the rent shall be calculated by multiplying the fixed rate of rent by the rate of use (as seen earlier, the Enforcement Decree of the same Act and the Public Property Management Act also provide for the same purpose as to the calculation of rent for public property)

(2) Therefore, the management agency that manages State-owned and public property is obligated to calculate rent as prescribed by the above Act and subordinate statutes. Although the nature of the State-owned and public property loan agreement is a private contract, if the State or local government, which is in a superior position, calculates rent in violation of the relevant Act and subordinate statutes, and concludes a loan agreement with the amount, it is deemed that the loan agreement exceeds the scope stipulated by the Act and subordinate statutes is null and void. Therefore, it is consistent with the purport of the State Property Act, the Public Property

(3) Meanwhile, the “value of the pertinent property” or “value of the pertinent property” (Article 31(2) of the Enforcement Decree of the Public Property and Commodity Management Act, which serves as the basis for calculating the loan charges for State property, shall not be based on the changed status in which the possessor who leased the State or public property increased its value by his own cost and effort after the commencement of possession, unless there are special circumstances, but on the basis of the actual status of 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 after the commencement of possession (see Supreme Court Decisions 98Du17647, 17654, Feb. 12, 199; 97Nu4098, Jan. 28, 200; hereinafter referred to as “value of the pertinent property”). Thus, in light of the foregoing principle, the occupant’s effort to calculate the loan charges to the extent of an unreasonable increase in the loan charges.

(4) However, around 1970, the Plaintiff created a golf course by taking his effort and cost into account each of the instant lands for which permission for occupation and use was obtained. Accordingly, the value of each of the instant lands has increased, such as the change of most of the land categories into a sports site and the rise in the officially assessed individual land price, as seen earlier. Therefore, the value of the property, which serves as the basis for calculating the rent for each of the instant lands, shall be calculated on the basis of the land value reflecting only the natural increase in land price during the period from 1970 to 2010 before the Plaintiff occupied it and developed it as a golf site, barring any special circumstance.

B. Determination

Therefore, in evaluating the value of each of the instant lands, the Defendants did not comply with the above evaluation method, and did not err by presenting the status of the use of each of the instant land (golf course) with the Plaintiff’s effort and cost, thereby evaluating the value of the property. Accordingly, the Defendants are obliged to return the remainder of the amount calculated by deducting the rent calculated appropriately in accordance with the above evaluation method from the loan fee received from the Plaintiff from 2005 to 2010, to the Plaintiff as unjust enrichment.

5. Scope of return of unjust enrichment

(a) Calculation of appropriate loan charges;

(1) According to the results of appraisal of the instant rent and the purport of the entire pleadings, the individual land price was calculated by considering the land category and utilization status of each of the instant lands as before or after the Plaintiff started possession as at the time of the commencement of possession, and then multiplying the property value calculated by multiplying the loan area by the usage fee rate (50/1,000), thereby calculating the appropriate rent for each of the instant lands, the following table is as follows.

Land List 1,878,230 won, 9,81,110 won, 10,642,560 won, 208 2,19,930 won, 474,010 won, 2009, 11,224,575 won, 201,271,135 won, total of 10,483,35 won, 205 won, 21,224,575 won, 2010, 2010,35 won, 21,723,45 won, 203,350 won, 2075,700 won, 209.

B. Scope of return

Therefore, Defendant Gyeonggi-do has the obligation to pay 124,218,630 won [37,616,920 won - 10,483,350 won] x 50%] 137,785,415 won [37,616,920 won - 10,483,350 won] x 50% + (303,312,960 - 54,875,70 won) x 50% x 124,218,630 won [303,312,960 won - 54,875,70 won] x 50%] x 137,785% x 50% of the above amount to the Plaintiff’s delay damages from delay under the Special Cases Concerning the Delivery of Claim and Change of Claim, 2016 to 2016.

6. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment]

Judges Jeong Young-chul (Presiding Judge)