Korea Asset Management Corporation (Law Firm Won, Attorneys Jeong Dong-dong, Counsel for defendant-appellant)

Defendant

August 12, 2011

Seoul Central District Court Decision 2010 Ghana5173877 Decided April 8, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 20,736,880 won and 16,421,750 won among them with 15% interest per annum from April 2, 2010 to the service date of a copy of the complaint of this case, and 20% interest per annum from the following day to the day of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 15% interest per annum from April 2, 2010 to July 28, 2010 as to KRW 7,052,01 and KRW 16,421,750 per annum, 15% interest per annum from July 29, 2010 to April 8, 2011, and 20% interest per annum from April 9, 2011 to the date of full payment.

1. Basic facts

A. The Defendant occupied the land of this case from July 1, 2005 to December 31, 2008, which is owned by the Republic of Korea without entering into a loan agreement or obtaining permission for use (hereinafter “instant land”).

B. The Plaintiff was delegated by the Republic of Korea with the authority to manage and dispose of the instant land and to preserve and collect claims in accordance with 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 42(1) of the State Property Act, and Article 38(3) of the Enforcement Decree

C. On April 2010, the Plaintiff imposed indemnity on the Defendant pursuant to Article 51 of the State Property Act and Article 56 of the Enforcement Decree of the same Act on the ground that the Plaintiff occupied the instant land without permission.

The total overdue interest rate (number of days) on the aggregate of the overdue interest rate (number of days) in the possession period (number of days) included in the main sentence shall be 6,342,020 15 2,767,90 9,109,920 9,920 9,920 9,109,920 9,920 4,772,6015, 6015, 13, 2008. 13, 205, 206. 1, 2006, 205, 205, 207, 205, 15, 205, 205, 207, 315, 207, 205, 205, 2015, 231, 7206, 204, 305, 2018

D. Calculation loan charges and adjustment loan charges for the instant land from July 1, 2005 to December 31, 2008 are as follows.

Table (units: 139,200,200,200.7.7.1 through 1,205.200.1,200,200 116 m2.5 m2,50,000,000 or 139,200,00,000 or more; 1,754,30,000 or more; 1,240,000 or 116,000 or more; 143,840,840,000,000 or more; 1640,000 or more; 1640,00 or more; 165,000 or more; 205,00 or more; 365,06,00 or more; 205,000,000 or more; 365,01 or more; 365,207.1,2007;

[Ground of recognition] Facts without dispute, entry of Gap 1 through 8 (including each number), the purport of the whole pleadings

2. Judgment on the ground of the Plaintiff’s claim

A. The occurrence of a claim for restitution of unjust enrichment

According to the above facts, the defendant is obligated to return unjust enrichment from the possession of the land of this case to the plaintiff who is delegated with the authority to manage and dispose of the land of this case and to preserve and collect the claim of this case by occupying the land of this case owned by the Republic of Korea without any legal grounds.

B. Amount of unjust enrichment

1) Summary of the Plaintiff’s assertion

The plaintiff asserts that the amount of unjust enrichment to be returned by the defendant is equivalent to compensation or equivalent to the cost of calculation.

2) Determination

A) Whether the amount equivalent to the indemnity is unjust enrichment

As to the scope of unjust enrichment under the Civil Act, Article 72(1) of the State Property Act does not apply to the scope of unjust enrichment (see Supreme Court Decision 91Da42197, Apr. 14, 1992, etc.). Thus, this part of the Plaintiff’s assertion that the Defendant unjust enrichment of the amount equivalent to the indemnity is without merit.

B) Whether the amount equivalent to the calculation rent is unjust enrichment

In the case of return of unjust enrichment, the scope of profit to be returned by the beneficiary is limited to the scope of loss suffered by the loss, and the loss suffered by the loss is equivalent to the profit expected to be gain the loss from the property in terms of social norms (see Supreme Court Decision 96Da31581, Jul. 11, 1997, etc.). Thus, even though the amount of unjust enrichment acquired by the defendant who is a beneficiary is equivalent to the amount of rent for the above period, the loss suffered by the plaintiff is equivalent to the amount of rent which was not paid due to the failure to conclude a loan contract with the defendant, so it is reasonable to view that the amount to be returned by the defendant to the plaintiff is not

3) Sub-decisions

The sum of the adjusted loan charges for the instant land from July 1, 2005 to December 31, 2008 is as seen earlier. As such, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at an annual rate of 20% per annum as stipulated in the Civil Act from July 29, 2010 to April 8, 201, the date when the original copy of the instant payment order was served on the day when the original copy of the instant payment order was served. (No evidence exists to deem the Plaintiff to have notified the Defendant of the performance prior to the said date) to the effect that the Defendant raised an objection as to the existence or scope of the instant obligation from July 29, 201 to the date when the first instance court rendered a significant decision to dispute on the existence or scope of the obligation to perform the instant land, and from the next day to the date when the payment is fully made at least 13,684,799 won.

The plaintiff sought payment of interest at 15% per annum from April 2, 2010 to the delivery date of the original copy of the payment order in this case. Thus, the plaintiff asserts that the person liable for return of unjust enrichment is a malicious beneficiary. Here, the "faith" in Article 749 (2) of the Civil Code means that separate cases where the person liable for return of unjust enrichment is deemed to be a malicious beneficiary, and the holding of one's own interest is recognized as having no legal cause, and it is insufficient to recognize that the situation that the holding of the interest is not a legal cause, namely, the fact that the requirements for the return of unjust enrichment are satisfied (see, e.g., Supreme Court Decision 2009Da24187, 24194, Jan. 28, 2010). Thus, the statement of evidence No. 3 and 4 of each of the above evidence alone from the point of possession to the delivery date of the original copy of the payment order in this case, and there is no other evidence to acknowledge that the plaintiff's interest was in this case.

3. Judgment on the defendant's defense

A. Summary of the defense

The defendant asserted that since the original acquisitor of the land of this case (hereinafter "the building of this case") possessed the land of this case on March 21, 1974, he succeeded to and acquired the above building on May 14, 1981 through Nonparty 1 and 2, and occupied the land of this case, since the original acquisitor of the building of this case ("the building of this case") acquired the above building on May 14, 1981, he cannot respond to the plaintiff's claim since the acquisition by prescription of possession of the land of this case was completed on March 21, 1994 after 20 years from March 21, 1974 from the commencement of possession by the former occupant on March 21, 1994 or around May 14, 2001 when the period from May 14, 1981 when the defendant commenced possession.

B. Determination

From March 21, 1974, the first purchaser of the building of this case was registered in the name of the Republic of Korea around May 21, 194, and from May 14, 1981, the fact that the Defendant occupied the building of this case from May 14, 1981 that the original purchaser and the Defendant were presumed to possess the land of this case, but it was presumed that the Defendant had possession of the building of this case or the building of this case under the premise that the Defendant would have possessed the land of this case with the intention of possession of the land of this case, in light of the following circumstances, namely, the first purchaser of the building of this case was registered in the name of the Republic of Korea around May 21, 1942 at the time of commencement of possession of the land of this case. In ordinary cases, the first purchaser of the building of this case was to inspect the registry or cadastral record in advance and verify the seller's ownership (see Supreme Court Decision 9Da41893, Jan. 14, 2000).

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-chul (Presiding Judge)