(영문) 춘천지방법원 강릉지원 2015.10.8.선고 2015구합1770 판결

A. On January 30, 1997, the Plaintiff entered into an agreement on the business of tourist facilities (hereinafter referred to as the “instant agreement”) as follows with respect to land owned by Yangyang-gun, Yangyang-gun, Yangyang-gun, 399-18, 399-19, 399-20, etc. (hereinafter referred to as “instant co-owned property”) between Yangyang-gun and Yangyang-gun. The agreement on the acquisition of important property under the Local Autonomy Act requires a resolution of the local council. The Yangyang-gun entered into the instant agreement including the content on the donation of permanent buildings at the time of signing the agreement, and did not undergo a resolution of the Yangyang-gun.

1. The Yangyang-gun loaned part of the public property of this case to the Plaintiff so that the Plaintiff may install and operate the public property of this case. The Plaintiff shall contribute permanent buildings among the public property of this case to Yangyang-gun within a certain period after completing the installation of the facilities, and the other facilities shall be installed with permission granted under the condition of voluntary removal. The Plaintiff may use the facilities donated to Yangyang-gun for a certain period pursuant to the relevant Acts and subordinate statutes (Article 2 and Article 6). 2. The Plaintiff shall pay to Yangyang-gun a performance guarantee deposit equivalent to 6% of the cost of the facility investment in accordance with the master plan for the business in cash or in surety insurance, etc. at the time of concluding the loan contract, and shall pay the rent calculated in accordance with the Enforcement Decree of the Local Finance Act and the Ordinance on the Management of Yangyang-gun's Public Property (Article 4 and Article 8). 3. The Plaintiff shall manage the facilities leased from Yangyang-gun by fulfilling its duty as a good manager, and the Plaintiff shall not obtain approval of the amount of the contract (Article 15).

B. On February 19, 197, the Plaintiff entered into a public property loan agreement with Yangyang-gun on the 20,951m of the 399-20 and the 36,907m of the 36,97m of the land in Yangyang-gun, Yangyang-gun, Yangyang-gun, and completed the registration of ownership transfer on the 22 stores and other facilities on the public property in this case on December 1999. Among them, each building listed in the attached Table 1 list was constructed on the 399-20m of Yangyang-gun, Yangyang-gun, Yangyang-gun, Yangyang-gun, and the 399-20m of the above building listed in the attached Table 1 list "each building in this case", the Plaintiff completed the registration of ownership transfer under the name of the Plaintiff 20 on August 25, 200, and the registration of ownership transfer was completed on the 200m of Yangyang-gun, Yangyang-gun.

C. Since November 10, 2001, the Plaintiff delayed most of the loan charges and late payment charges to be paid to Yangyang-gun in accordance with the instant agreement (the amount of loan charges not paid at the time of September 30, 2007, including late payment charges, reaches KRW 1,175,410,750), and did not pay the performance guarantee amount of KRW 230,400,000 under the instant agreement, and did not subscribe to a damage compensation insurance for the leased building on or after November 10, 201, and did not conduct a regular inspection of the facilities.

D. On May 8, 2006, the Yangyang-gun terminated the instant agreement on the ground that the Plaintiff did not perform the payment of loan charges of Yangyang-gun, despite the demand for the payment of loan charges and the demand for the implementation of the agreed matters, on the grounds that the Plaintiff failed to perform the donation, the payment of deposit and loan charges, the failure to perform the matters to be observed for the management of facilities, etc.

E. On November 7, 2008, the Plaintiff filed a lawsuit against Yangyang-gun for the cancellation of ownership transfer registration in the name of Yangyang-gun or the right to request ownership transfer registration in the name of Yangyang-gun or the right to request ownership transfer registration in the name of Yangyang-gun as well as the claim for damages equivalent to the value of the building that was destroyed by the forest fire in Yangyang-gun as well as the right to claim ownership transfer registration in the name of Yangyang-gun as the right to claim ownership transfer registration in the name of Yangyang-gun, including each building of this case, which was donated to Yangyang-gun in accordance with relevant Acts and subordinate statutes, including the Local Autonomy Act, and the Convention was null and void. The above court rendered a decision to dismiss the Plaintiff’s claim on November 7, 2008 with Seoul High Court Decision 2008Na113938, and the Plaintiff primarily filed an appeal and changed the purport to the effect that the claim was identical to the claim in the first instance court for damages arising from both Yang-gun and the first instance judgment.

F. On May 12, 2010, each registration of ownership transfer in the name of Yangyang-gun and the right to claim ownership transfer in respect of each of the instant buildings was cancelled in accordance with the above final judgment.

G. Accordingly, both Yang-gun filed a lawsuit against the Plaintiff seeking the removal of the instant building and the delivery of the instant land to Yangyang-gun. The above court rendered a ruling of acceptance of the Plaintiff’s claim on September 9, 2011 by both Yang-gun’s appeal. The two Yang-gun added the Plaintiff’s claim for return of unjust enrichment due to the occupation of the instant land without permission by expanding the purport of the claim, and filed a counterclaim seeking the return of the rent that the relevant loan agreement was null and void due to the invalidity of the agreement, and the Plaintiff sought the return of the rent that was paid under the agreement. The appellate court, the appellate court (2011Na11908, 2013Na671, etc.) accepted the Plaintiff’s claim for return of unjust enrichment from Yang-gun, the Seoul High Court (2011Na1908, and 2013Na671, etc.) which ordered the Plaintiff to collect unjust enrichment from Yangyang-gun’s non-performance of the instant building on the ground that both-gun and the need for collection of unjust enrichment.

H. Accordingly, on September 30, 2014, the Defendant issued a disposition imposing a total of KRW 881,148,690 of indemnity for five years from July 18, 2009 to July 16, 2014 pursuant to Article 81 of the Public Property and Commodity Management Act on the ground that “the Plaintiff occupies the instant land, which is a public property, without obtaining permission for use or profit-making, etc.” on the ground that “the Plaintiff is in possession without obtaining permission for use or profit-making, etc.” on the Plaintiff, but corrected the amount to KRW 835,225,270 ex officio on December 8, 2014 (hereinafter referred to as “instant disposition”).

(i) The Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Gangwon-do Administrative Appeals Commission, but the Gangwon-do Administrative Appeals Commission dismissed the Plaintiff’s claim on March 2, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 9, Eul evidence 1 to 8 (including provisional lot number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff’s possession of the instant land was lawful in accordance with the instant agreement entered into with Yangyang-gun and donated the instant building to Yangyang-gun. At this point, the instant agreement becomes null and void due to the mistake that did not go through a resolution of the local council regarding the instant agreement, and as a result, the ownership of the instant building was returned to the Plaintiff, thereby continuously occupying part of the instant land. Therefore, the Plaintiff’s possession cannot be deemed as having no legal title, and imposing indemnity is contrary to justice and equity.

In addition, according to the Seoul High Court's decision (201Na1908, 2013Na671 (Counterclaim), the Plaintiff's obligation to deliver part of the land of this case to Yangyang-gun is in a simultaneous performance relationship with the Plaintiff's right to claim reimbursement for beneficial expenses from Yangyang-gun. Thus, it is legitimate to possess part of the land of this case until the Plaintiff is reimbursed for beneficial expenses from Yangyang-gun. Accordingly, the Plaintiff's possession cannot be subject to indemnity.

In addition, since the part of the instant land possessed by the Plaintiff among the buildings newly constructed by the Plaintiff is limited to the part for owning the instant building (4,451 square meters), which is the remainder of the building, destroyed by fire, among the buildings newly constructed by the Plaintiff (4,451 square meters), the instant disposition based on the premise that it occupied the entire land (16,416 meters) is unlawful.

B. First, we examine the plaintiff's assertion that since the duty of delivery of the land of this case and the duty of repayment of beneficial expenses are simultaneously in a relationship, the possession of the land of this case is legitimate, so the indemnity cannot be imposed.

(1) Article 81 of the Public Property and Commodity Management Act provides that an indemnity shall be collected by adding 20% to the usage fees or rent for the public property, etc. against a person who uses, benefiting from, or occupies public property without a loan agreement (see, e.g., Supreme Court Decision 2005Du8375, Nov. 29, 2007). If the obligation to return the possession of the public property and the realization of the right to receive reimbursement of the beneficial expenses for the public property are related to the simultaneous performance of the obligation to return the possession of the public property and the right to receive reimbursement of the beneficial expenses for the public property, such possession cannot be deemed unlawful until the performance of the obligation to reimburse beneficial expenses is offered, and therefore, it is reasonable to deem that the punitive nature cannot be imposed.

(2) In light of the purport of the entire arguments in the above evidence, the plaintiff neglected to be developed from February 19, 197. The plaintiff had the right to claim reimbursement of beneficial costs for the land of this case against Yangyang-gun as of April 2014, because the objective value of the land of this case was increased to KRW 1,575,936,00 as of April 2014 near the date of closing the argument of this case. The plaintiff has the right to claim reimbursement of beneficial costs for the land of this case, and the realization of the right is related to the plaintiff's duty of delivery and simultaneous performance of the land of this case against Yangyang-gun.

(3) Examining the above facts in light of the legal principles as seen earlier, since from around July 1997 when the Plaintiff performed civil engineering works, etc. on the instant land, there was benefit costs for the instant land, and accordingly, the Plaintiff is in the legal position to justify the possession of the instant land from the said construction work to the time when full benefit costs incurred therefrom were paid. Accordingly, the instant disposition regarding the possession from July 18, 2009 to July 16, 2014, which was made with respect to the possession of the instant land, was limited to the possession for which no indemnity can be imposed.

If so, without examining the remaining arguments of the plaintiff, the disposition of this case shall be taken in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.