Republic of Korea (Law Firm East, Attorney Choi Choi-woo, Counsel for defendant-appellant)

Busan Metropolitan City (Attorney Jin-Jin, Counsel for defendant-appellant)

March 9, 2010

1. The defendant shall pay to the plaintiff 11,290,987 won with 5% interest per annum from November 8, 2005 to April 6, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 is borne by the Plaintiff, and the remainder is borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 38,136,358 won with 5% interest per annum from November 8, 2005 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Determination on the cause of the claim

The Plaintiff completed the registration of ownership transfer on January 23, 1974 on the grounds of reversion of rights on September 11, 1948 with respect to the land of this case on the ground that the Plaintiff: ( Address 1 omitted); ( Address 2 omitted); ( Address 2 omitted); (3) a school site of 5 square meters; (3) a railroad site of 648 square meters (number 3 omitted); and (4) a fact that the Plaintiff occupied and used the land of this case as a school site of △△△ Middle School from July 12, 2000 to November 7, 2005 without obtaining permission, etc. from the Plaintiff, shall be deemed that there is no dispute between the parties, or that the Defendant led to confession.

Thus, the defendant occupied and used the land of this case without title from July 12, 2000 to November 7, 2005 without title, thereby gaining profits without legal grounds and causing damage to the plaintiff who is the owner. Thus, the defendant is obligated to return unjust enrichment to the plaintiff, barring special circumstances.

2. Judgment on the defendant's assertion

(a) The assertion that the indemnity is a double claim;

(1) The defendant's assertion

From July 12, 200 to November 7, 2005, the Defendant was imposed an indemnity of KRW 43,117,470 on the ground that the Defendant occupied and used the instant land without permission from the Korea Asset Management Corporation (the Plaintiff delegated the right to manage and dispose of the instant land and preserve claims and collect claims). However, given that the indemnity stipulated under the State Property Act has the nature of the amount to be returned, it is unreasonable for the Plaintiff to file a claim for restitution of unjust enrichment separately from the disposition imposing indemnity.

(2) Determination

Article 51 (1) of the former State Property Act (amended by Act No. 9401 of Jan. 30, 2009) provides that "the State property shall be collected from a person who occupies, uses, or benefits from the State property without obtaining permission for the lease, use, or profit-making of the State property, an indemnity equivalent to 120/100 of the loan or use fee of the State property shall be collected as prescribed by Presidential Decree." Since an indemnity provides that the State property shall be calculated on the basis of the loan or use fee of the State property, the indemnity shall be calculated on the basis of the loan or use fee of the State property. Accordingly, it can be deemed that there

However, the above disposition of imposing indemnity has the nature of an administrative disposition imposed on a person using state property without permission by the Office of Administration. In default of indemnity, it is possible to collect indemnity under the National Tax Collection Act. In addition to loan charges or usage fees, the claim for return of unjust enrichment under the Civil Act includes money imposed by the State in a punitive sense, and there are different legal characteristics, grounds for occurrence, establishment requirements, methods of compulsory execution, etc. Accordingly, the claim for disposition of imposing indemnity under the State Property Act and the claim for return of unjust enrichment under the Civil Act are not related to either a claim or a disposition of imposition under the State Property Act and the other claim for disposition of imposition of indemnity under the Civil Act are not related to the rejection of the other party. However, if the State has already obtained satisfaction with the part corresponding to the return of unjust enrichment through voluntary performance, compulsory collection, compulsory execution, etc. in one of

Therefore, the defendant's assertion that the plaintiff's claim for return of unjust enrichment cannot be allowed on the ground of the existing disposition of indemnity.

B. The assertion that the claim for return of unjust enrichment was not established

(1) The defendant's assertion

(A) Since a joint entity is a joint entity that both the State and local governments are obligated to provide education, it cannot be said that the Defendant, one of them used the Plaintiff’s land as a school site, thereby incurring loss or having profit to the Defendant. Therefore, there is no causation between the profit and loss, which is the requirement of unjust enrichment,

(B) Even if there exists a benefit to the Defendant, it is consistent with the social norms, equity and justice to enable the Defendant to hold such benefit, and thus, the Defendant cannot be deemed to have obtained a “legal benefit without any legal grounds.”

(2) Determination

(A) There is no theory that both the State and local governments bear the duty of education in relation to the citizen. However, since the duty of education, the right to receive education from the citizen, or the constitutional value of education is implemented through the specific law enacted in the National Assembly, which is the representative organ, the State and local governments must follow the procedure and method prescribed by law in performing their given duties. Therefore, if one party gains profits by using the other party's property without permission without permission, disregarding such procedure and method, and thereby causes damage to the other party, such profits shall be returned to the other party as unjust gains, and if both parties bear the constitutional duty that should be jointly performed, it is difficult to deem that there is no benefit on the part of using the other party's property, or that there is no loss to the other party, or that there is no causal relationship between the two. Accordingly, the defendant's argument

(B) In the same context, it is difficult to deem that the Defendant’s use of the instant land without permission, even though it was possible for the Defendant to gratuitously use the instant land in accordance with the procedure prescribed by law, accords with social norms, equity, and justice. Therefore, the Defendant’s assertion on the foregoing (b) is not acceptable on the premise that the Defendant’s use of the instant land without permission accords with equity and justice.

C. The allegation of extinguishment due to confusion

(1) The defendant's assertion

(A) The Plaintiff’s claim for return of unjust enrichment against the Defendant was extinguished due to confusion with the Plaintiff’s mandatory elements pursuant to the Local Education Subsidy Act, etc., which provides the State with all and part of the financial resources for the establishment and operation of educational institutions of local governments.

(B) On November 7, 2005, the land management authority of this case transferred its management to the Ministry of Education, Science and Technology (Ministry of Education and Human Resources Development). Thus, the right to claim return of unjust enrichment against the Defendant in the Ministry of Strategy and Finance, which occurred before the transfer, was also transferred to the Ministry of Education, Science and Technology. However, since the affairs of school education are in charge of the Ministry of Education, Science and Technology, the above claims

(2) Determination

(A) If the rights and obligations arising from a certain legal relationship accrue to the same person, the said rights and obligations may be confused. However, the Plaintiff’s right to claim for return of unjust enrichment against the Defendant and the obligation to provide financial resources under the Local Education Subsidy Act are not arising from the same legal relationship, but all separate rights and obligations, which are not corresponding rights and obligations, so there is no confusion because both parties have reverted to the Plaintiff. Accordingly, the Defendant’s assertion on the above (a) cannot be accepted.

(B) The Defendant’s assertion in Paragraph (b) above is premised on the premise that the subject of the right to claim return of unjust enrichment against the Defendant has been transferred from the Ministry of Strategy and Finance to the Ministry of Education, Science and Technology, but the subject of the right to claim above was the Plaintiff without any change. Therefore, it is difficult to accept the Defendant’s assertion in a different premise.

(d) Extinctive prescription defense;

The defendant's defense that the statute of limitations has expired prior to September 16, 2004, which corresponds to the portion exceeding five years retroactively based on the filing date of the lawsuit in this case.

The plaintiff's claim for return of unjust enrichment, which occurred before September 14, 2004 after the lapse of five years from September 15, 2009 as of September 15, 2009, which was the date of filing the lawsuit in this case, had already expired before the filing of the lawsuit in this case. Thus, the defendant's claim for return of unjust enrichment, which occurred before the lapse of five years from September 14, 2004, is justified within the scope of the above recognition.

E. Sub-committee

Therefore, the defendant is obligated to return to the plaintiff unjust enrichment obtained by using the land of this case owned by the plaintiff without compensation from September 15, 2004 to November 7, 2005.

3. Amount of unjust gains;

Furthermore, we examine the amount of unjust enrichment that the Defendant should return to the Plaintiff. Unless there are special circumstances, the amount of profit from the possession and use of real estate is the amount equivalent to the rent of the real estate. However, the annual rent of the land in this case is 8,215,300 won from January 1, 2004 to December 31, 2004, and 10,406,375 (the detailed details are as follows) from January 1, 2005 to December 31, 2005, there is no dispute between the parties. Thus, the amount that the Defendant should return to the Plaintiff is 11,290,987 won (8,215,30 won x 108 days ± 366 days ± 10,406,375 won ± 3165 days ± 365 days).

498,400 won 3,391,500 won 4,325,400 won 8,215,300 won 631,900 won 4,298,875 won 5,475,600 won 10,406,375 won in total, 204

4. Conclusion

The defendant is obligated to pay to the plaintiff 11,290,987 won and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from November 8, 2005 to April 6, 2010, which is the date of the rendering of the judgment, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment.

Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are without merit.

Judges Sylle