2012Du5688 Confirmation of Non-existence of Obligations

A

Korea Asset Management Corporation

Busan High Court Decision 2011Nu2484 decided February 8, 2012

September 4, 2014

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The right to impose and collect indemnity under Article 51(1), (4), and (5) of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; Articles 72(1) and 73 of the current State Property Act) differs from the legal nature of the right to claim the return of unjust enrichment under the civil law. As such, the State may file a lawsuit claiming the return of unjust enrichment under the civil law as the owner of State property, separate from exercising the right to impose and collect indemnity against unauthorized occupant (see, e.g., Supreme Court en banc Decision 2011Da76402, Jul. 16, 2014).

In addition, the right to impose and collect the indemnity and the right to claim the return of unjust enrichment in the civil law concurrently exist within the same amount, and when the right to claim the return of unjust enrichment in the civil law is extinguished upon satisfaction of the right to claim the return of unjust enrichment, the right

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) From March 2002 to February 6, 2010, the Plaintiff occupied and used the instant real estate owned by the Republic of Korea without permission, and the Defendant imposed and collected indemnities on the Plaintiff four occasions on the premise that the Plaintiff occupied the instant real estate without permission.

(2) On January 23, 2009, the defendant filed a lawsuit against the plaintiff on January 23, 2009, claiming the return of unjust enrichment equivalent to the use fees of the real estate of this case for the period from January 23, 2004 to the end of possession of the defendant (hereinafter referred to as "related lawsuit"). On October 28, 2009, the plaintiff paid the defendant the amount calculated at the rate of 5% per annum from January 23, 2009 to February 4, 2009, and 20% per annum from the next day to the day of full payment, and the amount calculated at the rate of 316,406 won per annum from January 23, 2009 to the end of possession of the real estate of this case, and the decision became final and conclusive around that time.

(3) On December 23, 2009, the Plaintiff paid the amount of 24,419,417 won (hereinafter referred to as “the instant reimbursement”) with the Defendant’s claim for restitution of unjust enrichment from January 23, 2004 to January 23, 201, regarding the amount of 200, the amount of 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00).

Nevertheless, the court below held that the disposition of this case, which urged the payment of indemnities, including the extinguished portion of the compensation, was unlawful, since the indemnity for the period of unauthorized occupation equivalent to the amount of the reimbursement of this case, which was received from the plaintiff upon the lawsuit related to the previous disposition, loses its validity, and the entire obligation to pay the portion was extinguished. In so doing, the court below erred by misapprehending the legal principles on the right to impose and collect indemnity, thereby adversely affecting the conclusion

2. In general in administrative legal relations with regard to the third ground for appeal, in order to apply the principle of protecting trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the trust of the administrative agency's opinion that the individual's opinion is justifiable should not be attributable to the individual, third, the individual should have trusted the opinion's opinion's name and committed any act corresponding thereto. Fourth, by the administrative agency's disposition contrary to the above opinion's name, the interests of the individual who trusted the opinion's name should be infringed. Lastly, the administrative disposition pursuant to the above opinion's name should not be likely to seriously undermine the public interest or legitimate interests of the third party (see, e.g., Supreme Court Decision 2004Du46, Jun. 9, 2006).

According to the facts and records established by the court below, the defendant issued a disposition imposing indemnity amounting to the period from January 1, 2008 to December 31, 2008, which was part of the period of claiming the return of unjust enrichment to the plaintiff on June 19, 2009 during which the pertinent lawsuit was in progress. Since the defendant received the instant reimbursement from the plaintiff and issued a receipt stating the purport that the Defendant would release the attachment of the State-owned property in arrears due to the receipt of the said amount from the plaintiff on December 23, 2009, and the indemnity amount was not paid in full to the plaintiff, the defendant issued a receipt stating the purport that the Defendant would release the attachment of the State-owned property already in progress within the prompt period of time.

Considering such circumstances, the Defendant cannot be deemed to have expressed a public opinion that the Defendant would no longer collect the remainder of the pertinent unauthorized occupation period from the Plaintiff solely on the ground that the Defendant filed a lawsuit against the Plaintiff and received the reimbursement of the instant amount from the Plaintiff.

Nevertheless, the lower court determined that the instant disposition contravenes the principle of trust protection on the ground that the Plaintiff, who received the relevant lawsuit, trusted that the obligation to pay indemnity for the pertinent period was extinguished by paying unjust enrichment. In so doing, the lower court erred by misapprehending the legal doctrine on the principle of trust protection, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justice Shin Shin Young-young

Justices Lee Sang-hoon

Justices Kim Gin-young