Korea Asset Management Corporation (Law Firm Pak, Attorneys Ha Jae-in et al., Counsel for the plaintiff-appellant)

School Foundation Liba Institute (Law Firm UBS, Attorney Park Dong-young, Counsel for defendant-appellant)

June 27, 2012

1. The defendant shall pay to the plaintiff 121,403,035 won and 4,251,404 won among them from January 1, 2005 to January 1, 2006; 17,059,651 won from January 1, 2007 to January 1, 2007; 19,280,497 won from January 1, 2008 to 22,112,181 won from January 1, 2009 to 23,635,118 won with interest rate of 10% from January 1, 2010 to 20% from the day following the day of full payment; 21,050,321 won per annum from January 1, 2010 to the day of full payment; 30% per annum from the day after January 1, 2010 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

With respect to the plaintiff 156,35 won and its 8,304,843 won from January 1, 2003; 12,378,963 won from January 1, 2004; 13,876,809 won from January 1, 2005; 15,472,628 won from January 1, 2006; 17,592,367 won from January 1, 2007; 19,82,02,08 won from January 1, 2007; 200% from the day following the day of complete payment to the day of complete payment; 361% from the day of complete payment; 30% from the day of complete payment to the day of complete payment; 15% from January 1, 2008 to the day of complete payment; 22,802,671 won from the day of each of the instant cases to the day of complete payment;

1. Basic facts

A. In Jung-gu Seoul Special Metropolitan City ( Address 1 omitted), forest land of 308.7 square meters (hereinafter “real estate No. 1”), ( Address 2 omitted), 86.9 square meters (hereinafter “instant real estate No. 2”), and ( Address 3 omitted), 102.5 square meters (hereinafter “instant third real estate”). The instant real estate is owned by the Republic of Korea. The instant real estate is all combined with the instant real estate No. 1, 2, and 3.

B. Pursuant to Article 26(1)8 of the Act on the Efficient Disposal of Non-Performing Assets, etc. of Financial Institutions and the Establishment of Korea Asset Management Corporation, Article 32(3) of the former State Property Act (amended by Act No. 9401 of Jan. 30, 2009) and Article 33(2) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 21641 of Jul. 27, 2009), the Plaintiff was entrusted by the Republic of Korea with the management and disposal of the instant real estate, the preservation and collection of claims, and the Defendant was a corporation that establishes and operates ○ Elementary School.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, 6-1 and 2, the purport of the whole pleadings and arguments

2. The plaintiff's assertion

From May 11, 2002 to October 31, 201, the Defendant occupied the real estate of this case 282 square meters among the instant real estate 1, 31.6 square meters among the instant real estate 2, and 3 real estate of this case without authority. As such, the Defendant is obligated to refund to the Plaintiff unjust enrichment equivalent to the usage fees from May 11, 2002 to October 31, 2010.

3. Determination

A. Establishment of a claim for return of unjust enrichment

1) 피고가 2002. 5. 11.부터 현재까지 이 사건 제1부동산 중 282㎡, 이 사건 제2부동산 중 31.6㎡를 학교부지로 점유하고 있는 사실은 당사자 사이에 다툼이 없고, 감정인 소외인의 측량감정결과, 이 법원의 현장검증결과 및 변론 전체의 취지를 종합하면, 이 사건 제3부동산 중 별지 성과도 표시 ‘㉢' 부분 48.6㎡ 지상에는 ○○초등학교 건물이 들어서 있고, 이 사건 제3부동산 중 별지 성과도 표시 ‘㉤' 부분 41.3㎡은 ○○초등학교 정문 안쪽 부분이며, 이 사건 제3부동산 중 별지 성과도 표시 ‘㉣' 부분 12.6㎡은 ○○초등학교 정문 바깥쪽 부분으로서 도로로 사용되고 있는 사실을 인정할 수 있는바, 위 인정사실에 의하면, 피고는 이 사건 제1부동산 중 282㎡, 이 사건 제2부동산 중 31.6㎡, 이 사건 제3부동산 중 별지 성과도 표시 ’㉢' 부분과 ‘㉤' 부분 합계 89.9㎡(=48.6㎡ + 41.3㎡)를 학교부지로 점유하고 있다고 할 것이다.

이에 대하여 원고는, 피고가 이 사건 부동산을 시효취득하였다고 주장하면서 대한민국을 상대로 제기한 소유권이전등기청구 소송에서 이 사건 제3부동산 중 별지 성과도 표시 ‘㉣' 부분 12.6㎡도 피고의 점유 부분이라고 주장한 사실이 있으므로, 이 사건 제3부동산 중 위 ‘㉣' 부분 12.6㎡도 피고가 점유하고 있다고 주장하나, 위와 같은 사정만으로 앞서의 인정을 뒤집고 이 사건 제3부동산 중 위 ‘㉣' 부분 12.6㎡을 피고가 점유하고 있다고 인정하기 어렵고 달리 이를 인정할 증거가 없으므로 원고의 위 주장은 이유 없다.

Therefore, insofar as there is no proof as to the fact that the Defendant had legitimate possession right with respect to the portion possessed as above, the Defendant is obligated to return unjust enrichment equivalent to the above amount to the Plaintiff, since the Defendant occupied and used the area of 282 square meters among the real estate No. 1, 31.6 square meters among the real estate No. 2, and 89.9 square meters among the real estate No. 3 of this case without any legal cause, thereby gaining profits corresponding thereto, and thereby, sustained damages equivalent to the same amount.

2) As to this, the Defendant’s defense against the Plaintiff’s claim for return of unjust enrichment regarding the real estate Nos. 1 of this case was completed by the date of filing of the lawsuit in this case; as to the real estate Nos. 2 and 3 of this case, the period of extinctive prescription for the part which was five years from March 22, 2010 added the Plaintiff’s claim.

The plaintiff's claim for return of unjust enrichment against the defendant is five years pursuant to Article 96 (1) of the National Finance Act. On July 20, 2009, the plaintiff filed the lawsuit of this case seeking return of unjust enrichment against the first real estate on July 20, 2009, and on March 22, 2010, the claim for return of unjust enrichment against the second and third real estate of this case was also filed additionally in the record. Thus, as to the first real estate of this case, it is obvious that the claim for return of unjust enrichment against the second and third real estate of this case was filed additionally. Thus, as to the first real estate of this case, the part of the claim for return of unjust enrichment which occurred from July 19, 2004 when five years elapsed retroactively from the date of filing the lawsuit of this case, the part of the claim for return of unjust enrichment against the second and third real estate of this case, which was added from March 22, 2010, and five years elapsed retroactively from March 21, 2005.

3) As to this, the Plaintiff notified the Defendant of the payment of indemnity on the ground that state property is occupied and used without permission, and re-claimed that the extinctive prescription of the above claim for return of unjust enrichment was suspended by the Plaintiff’s payment notice pursuant to Article 96(4) of the National Finance Act.

Article 96(4) of the National Finance Act provides that a notice of payment given by the State in accordance with the provisions of statutes shall have the effect of interrupting prescription, thereby providing exceptions to the effect of interrupting prescription under the Civil Act. In a case where a notice of payment is given through the forms and procedures prescribed by the above Act with respect to a claim of the State, the purpose of which is payment of money, the cause of the claim becomes effective as a matter of private law (see Supreme Court en banc Decision 76Da1720, Feb. 8, 197; Supreme Court Decision 2001Da45539, Dec. 14, 2001).

However, in light of the fact that the imposition of indemnity against an illegal occupant of state-owned property under Article 51 (1) of the State Property Act is subject to a loan, use, or profit-making, in addition to the amount equivalent to the loan or fee to be paid when the State is granted, the State unilaterally collects the indemnity within the punitive meaning, and in the event of default, it is subject to compulsory collection under the National Tax Collection Act, the disposition of imposition is conducted in the superior position of the public authority and it is deemed an administrative disposition. The right to collect indemnity in accordance with the disposition of imposition of indemnity differs from that of private law as a right in public law (see Supreme Court Decision 91Da42197 delivered on April 14, 192). The creditor can exercise his right at his option to achieve the same purpose, but it cannot be deemed that another claim itself has been exercised, barring any special circumstance. Thus, the interruption of the statute of limitations on other claims (see, e.g., Supreme Court Decision 2012Da14214, Apr. 14, 20192).

In light of the Plaintiff’s respective entries and arguments in the Evidence Nos. 1, 2, and 7-1, 2-9-1, 2-2 of the evidence No. 2 of the Plaintiff’s return to the instant case and the purport of the entire pleadings, the Plaintiff issued an imposition and collection notice on May 18, 2007 on the ground that the Defendant occupied and used the real estate No. 1 of this case without permission from May 11, 2002 to May 10, 2007, based on Article 51 of the State Property Act and Article 56 of the Enforcement Decree of the State Property Act, the Plaintiff’s imposition and collection notice on State property based on the Plaintiff’s notice of payment of indemnity from January 1, 202 to December 31, 206, on the ground that it is difficult to view that the Defendant, on the grounds that the Plaintiff occupied and used the real estate No. 2 of this case to the Defendant without permission, and that it is difficult for the Plaintiff’s imposition and collection notice of indemnity from May 1, 201, 207.

B. Scope of return of unjust enrichment

In ordinary cases, the amount of profit from the possession and use of real estate shall be the amount equivalent to the rent of the real estate. However, there is no dispute between the parties as to the fact that the amount of the adjusted rent calculated by the plaintiff for the real estate in this case shall be the amount equivalent to the rent of the real estate in this case.

Of the instant real estate 1, there is no dispute between the parties, or KRW 2, 3-2, 5-2, 3, 4, 7-2, 4-2, 9-2, 4, 9-2, 10-2, 10-2, 3, 4, 5-2, 9-2, 10-3, 28-14, 60-1, 20-2, 36-1, 20-4, 30-1, 67, 20-5, 20-1, 36-1, 20-5, 20-1, 36-1, 30-5, 30-5, 16-1, 30-5, 205, 20-7, 205, 31-6, 30-1, 207, 310-5, 2010

Therefore, the Defendant is obligated to return unjust enrichment to the Plaintiff at a rate of 121,403,035 won (=87,179,261 won + KRW 8,913,655 won + KRW 25,310,119) and, among them, KRW 4,251,404 with respect to unjust enrichment for 204 years from January 1, 2005; KRW 14,013,863 with respect to unjust enrichment for 205 years from January 1, 2006; KRW 17,059,651 with respect to unjust enrichment for 207 years from January 1, 207; KRW 19,280,497 from January 1, 2007; KRW 2015 per annum for 201,000 per annum for unjust enrichment for 201,000 per annum for 201,010 won per annum for 201,2131,29.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Notice of Lee Jae-ho (Presiding Judge)