Daeyang Industrial Co., Ltd. and three others (Law Firm Square, Attorneys Kim Dong-dong, Counsel for the plaintiff-appellant)

Korea

December 26, 2008

1. The defendant,

A. Of the user fees that Plaintiff Daeyang Industrial Co., Ltd., Plaintiff 4, Plaintiff 4 foundation corporation, and Korea-Namn Franb did not pay to the corporation, the “amount of 5% per annum from January 1, 2006 to January 9, 2009, and 20% per annum from the next day to the date of full payment.

B. As to the plaintiff 2's KRW 3,438,693,874 and KRW 481,570 among them, KRW 598,969,950 from January 1, 2002; and KRW 926,976,930 from January 1, 2004; KRW 1,060,569,980 from January 1, 2004 for KRW 1,060 from January 1, 2005; KRW 370,606,584 from January 1, 2006 to January 9, 2009; and KRW 5% from the next day to the day of full payment; and KRW 20% from each year to the day of full payment.

C. Of the unpaid user fees, the “amount of delay damages” as stated in the “amount of delay damages” shall be paid to the Plaintiffs, and 20% interest per annum from March 20, 2007 to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. 10% of the costs of lawsuit shall be borne by the plaintiffs, and the remainder shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

Of the usage fees not paid under attached Form 7 to Plaintiff Daeyang Industry Co., Ltd. (hereinafter “Plaintiff Daeyang Industry”), Plaintiff 4 Foundation (hereinafter “Plaintiff Scholarship”), and Plaintiff Hannam Franb Co., Ltd. (hereinafter “Plaintiff”), the “amount claimed by the Plaintiff” shall be paid 5% per annum from January 1, 2006 to the service date of the duplicate of the complaint of this case; 20% per annum from the next day to the day of complete payment; 3,46,014,744 won; 48,891,30 won per annum from the next day to the day of complete payment; 488,891,00 won per annum from the next day to the date of complete payment; 1,000 won per annum from January 1, 2002 to 5, 598,969,950 won per annum; 1,000 to the 1,601,619,619,296.

1. Basic facts

The following facts are not disputed between the parties, or each of the following facts can be acknowledged in full view of Gap evidence 1 through 5, evidence 7 through 9, evidence 1, Eul evidence 1, 2, and 5 (including each number), the testimony of non-party 2, and 3, the appraiser non-party 2's appraisal result, the fact inquiry result of this court's inquiry into the vice-branch of the Korea Appraisal Board.

가. 망 소외 1(이하 ‘망인’이라 한다)은 1972. 12.경 피고 소유인 별지 1. 기재 각 토지(이하 ‘한남동 토지’라 한다)중 ‘망인 지분’란 기재 각 토지(이하 ‘이 사건 각 토지’라 한다, 다만 위 토지 중 제⑫, , 항 각 토지는 제⑨, , 항 각 토지로부터 각 분할된 것이다)를 피고로부터 매수(교환)하여 위 각 토지에 관하여 망인 명의의 소유권이전등기를 경료하였다.

B. After April 197, the Defendant expropriated each of the instant lands from the Deceased on the ground that there is a need to take special measures against the expropriation and use of land in an area subject to mobilization under Article 5(4) of the Act on Special Measures for National Security for the purpose of military operations in a state of national emergency.

C. Under the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas under Article 4 and the Status of United States Armed Forces in the Republic of Korea (S.O. F.A. agreement), the Defendant: (a) provided the Republic of Korea with the Government of the United States of America to use the said land as the apartment site for usfk; (b) received the return from the usfk on March 15, 1979 on condition that the said land was used as the apartment site for usfk; and (c) entered into a loan agreement with the Korea National Housing Corporation to lend the said land free of charge from March 15, 1979 to March 14, 1984 on condition that the said land was used as the apartment site for usfk (the Defendant and the Korea National Housing Corporation were extended from March 15, 1984 to March 14, 198); and (d) the Korea National Housing Corporation established the apartment site for usfk from March 15, 1984 to March 14, 1989).

D. When the above land was used as a site for the apartment and ancillary facilities for the US Armed Forces in Korea, the deceased demanded the Defendant to repurchase each of the instant land previously expropriated on May 8, 1979 on the ground that there was no need for military operations. As the deceased did not comply with this demand, the deceased filed a lawsuit against the defendant against the defendant for the claim for ownership transfer registration on December 22, 1988, and received a favorable judgment from the above court on December 22, 1988, and the Seoul High Court appealed on August 30, 1989 (89Na7537). The deceased appealed on August 30, 198 (89Na7537).

E. Since then, while the Defendant appealed and the lawsuit was pending in the Supreme Court, a compromise between the Deceased and the Defendant on February 28, 1990 was established as follows (hereinafter “reconciliation of this case”), and a protocol of compromise was prepared.

① On May 8, 1979, the Defendant shall implement the procedure for the registration of transfer of ownership on each of the instant land to the Deceased.

(2) The defendant shall receive the redemption price deposited by the deceased.

③ The Deceased does not claim usage fees until the date of the registration of ownership transfer under the name of the Deceased, and the Defendant may use each of the instant lands without compensation for three years from the following day of the registration of ownership transfer: Provided, That the Defendant may continue to use the instant lands for two years only once, where the United States Armed Forces and their families occupy and use each of the instant lands after the lapse of three years.

④ Even during the above period (3+2 years), if the U.S. military and its family members fail to use each of the instant land, the Defendant shall, without any condition, deliver each of the instant land to the deceased.

(5) If the United States Armed Forces and their families continue to use each of the instant land even after the lapse of the above period (3+2 years), the Defendant shall pay to the deceased an amount equivalent to the usage fees based on the appraisal and assessment by the Korea Appraisal Board (hereinafter “instant usage fees”).

F. Following the reconciliation in this case on February 26, 191, each of the lands listed in [Attachment 1] (i) through (ii) was registered for the ownership transfer in the name of the deceased with respect to the entire shares, and on each of the lands listed in [Attachment 1] (hereinafter “share”), the co-owner, the deceased, and the defendant (the deceased’s share indicated in the “net Share” in the above list, and the defendant had the ownership transfer registration in the name of the co-owner, the deceased, and the defendant (the remaining shares).

G. On March 14, 2005, the Plaintiff Daeyang Industries purchased the deceased’s share in each of the lands listed in paragraphs (1) through (1) of [Attachment 1] and (4) and completed the registration of ownership transfer under the name of the Plaintiff Daeyang Industry on the same day. On the same day, the Plaintiff acquired the right to claim for use fees after the portion of the deceased’s respective lands on the same day. As to the remaining lands, the Plaintiff succeeded to the right to claim for use fees after November 11, 2005 by agreement between Plaintiff 2 and Nonparty 4 as indicated in the “ownership change (1)” column in [Attachment 1], and Nonparty 4 transferred the right to claim for use fees arising from the share of the above lands in the name of Nonparty 4 to Plaintiff 2.

H. On April 27, 2006, Plaintiff 2 donated each land indicated in No. 1. p.m. to the Plaintiff Scholarship Association. On the same day, Plaintiff 2 transferred the right to use each of the above land to the Plaintiff Scholarship Association. On May 2, 2006, Plaintiff 2 transferred the right to use each of the above land under the name of Plaintiff Scholarship Association.

I. In addition, on May 2, 2006, the Plaintiff 2, Nonparty 4, and Plaintiff Daeyang Industries sold their own shares among the lands listed in Section D, Section D, Section D, Section D, and Section D, Section 1, 2006, and Section D, Section 1, to the Plaintiff’s future South Korea, and on the same day, assigned the Plaintiff’s right to claim the royalty for each of the above lands to the Plaintiff’s future South Korea. On May 12, 2006, the ownership transfer registration under the name of the Plaintiff’

(j) The Plaintiffs notified the Defendant of the above transfer of the right to claim the royalty of this case around August 2006.

(k) After the lapse of five years from the time the ownership transfer registration under the name of the deceased was made with respect to each of the land in this case, when the U.S. military and their families continued to occupy and use the land in South Korea, the defendant requested the Korea Appraisal Board to appraise the deceased (or the plaintiffs) in order to calculate the usage fees to be paid to the deceased, and omitted each of the land in attached Form 1.2, 2, 3, 4, 5, 6, 7, and 1 in attached Form 3 on the premise that the deceased owned co-owned land. Under the premise that the deceased owned co-owned land, he requested the appraisal of the usage fees of the land in attached Form 1, 2, 3, 4, 5, 6, 7, and 1 (a) (hereinafter referred to as the “A”), the Defendant paid the deceased (or the plaintiffs) according to the above appraisal results, and the details are the same as the details of the usage fees paid in attached Form 4 (205.1.6).

2. Determination on the defense prior to the merits

With respect to the claim by the plaintiffs for the payment of the amount obtained by deducting the already paid amount from the lawful usage fees under the settlement agreement of this case, the defendant asserts that the lawsuit of this case is unlawful because it goes against the res judicata effect of the protocol of this case made between the deceased and the defendant

In a case where a settlement in court is entered in the protocol, such protocol has the same effect as that of the final and conclusive judgment, and res judicata has arisen between the parties, and thus, barring revocation or alteration by a lawsuit for retrial, the parties may not make any assertion contrary to its purport. In addition, the res judicata as mentioned above extends to a person who succeeds to the rights and obligations under the substantive law, which is a subject matter of lawsuit, after preparing a protocol of compromise concerning the right to claim performance, as the assignee of the right to claim performance. However, if compulsory execution is impossible because the contents entered in the protocol of compromise are not specified, the parties are entitled to bring the same claim (see Supreme Court Decisions 64Da1387, Feb. 3, 1965; 91Da45356, 45363, Apr. 10, 1992)

In this case, the plaintiff 2 and the non-party 4 succeeded to the claim for the royalty of this case from the deceased who is the party concerned with the non-party 4, and the plaintiff Yangyang industry is the person who received the above claim from the deceased after drawing up the above protocol of compromise, and since the plaintiff's future South Korea and the scholarship association received the above claim again from the plaintiff 2, non-party 4, and the plaintiff Yangyang industry, the above plaintiffs are subject to res judicata effect of the protocol of compromise of this case. However, as seen above, the above clause in the settlement clause of this case is that if the US-gun and its family continue to use each of the land of this case after the expiration of the above period (3+2 years), the defendant shall pay the deceased the amount equivalent to the royalty of the appraisal by the Korean Appraisal Board, which is the basis for calculating the royalty of each of the land of this case to be paid to the deceased, it cannot be said that the above claim for compulsory execution has no objective basis to determine whether there is legitimate appraisal. Therefore, the plaintiffs' interest in the settlement agreement of this case is equivalent to the above.

Therefore, the defendant's above assertion is without merit.

3. Judgment on the merits

A. The plaintiffs' assertion

The defendant is obligated to pay the user fee according to the legitimate appraisal result to the plaintiffs who inherited or acquired the right to claim the user fee of this case from the deceased pursuant to the reconciliation agreement of this case. The result of the appraisal by the Korea Appraisal Board, which is based on the defendant and the deceased as the basis for paying the user fee, is that although the defendant and the deceased own co-owned land as a general co-ownership relation, the part of the co-owned land is divided and a specific part is divided. The appraisal was made only for the land under the premise that the deceased and the deceased own the co-owned land, and that the user fee of this case is unreasonably low. The land of this case is omitted from the object of appraisal. Therefore, the defendant shall pay to the plaintiffs the remainder of the user fee,

(b) Markets:

1) Defendant’s duty to pay user fees

A) In light of the details of the settlement agreement and the preparation of the protocol in this case and the contents of the settlement, the above paragraph No. p. p. of the settlement agreement in this case, even after five years have passed since the registration of ownership transfer with respect to each land in this case was made in the name of the deceased, if the US military and its family continue to use the land in this case, the defendant shall pay the deceased a "reasonable usage fee", and it is reasonable to interpret that the Korea Appraisal Board only determines the method of calculating the above legitimate usage fee, and therefore, the defendant is obliged to pay the land usage fee in this case from the deceased to the plaintiffs who have succeeded to or taken over the right to claim the use fee in this case

B) Judgment on the defendant's argument

In regard to this, the defendant argued that the plaintiffs' claim of this case is without merit since the land of this case does not belong to the defendant, not to the defendant's possession, and the non-party Korea National Housing Corporation's possession is without merit. Thus, the defendant who provided the use of each of the land of this case to the US military for the deceased or the plaintiffs' possession and use of each of the land of this case not to claim for the return of unjust enrichment from illegal possession of the defendant's land of this case, but to the defendant who provided the use of each of the land of this case to the US military. Further, the defendant agreed to pay the amount equivalent to the use fee of the land of this case to the deceased when he anticipated the possession and use of each of the land of this case at the time of the above settlement agreement. Thus, the issue is whether the defendant occupies each of the land of this case in this case, and

2) Amount of lawful usage fees

(A) the board;

Unless there are special circumstances, the defendant and the deceased are presumed to have properly shared the above co-owned land in each of the lands of this case, since the ownership transfer registration was made with respect to co-owned land by the co-ownership of the defendant and the deceased, and the defendant and the deceased are presumed to have been generally shared the above co-owned land. In full view of the testimony of the witness 2 and 3 and the purport of the whole arguments as a result of the expert appraisal of the non-party 2, the user fee of each of the lands of this case (including the lands of this case omitted from the appraisal of the Korea Appraisal Board, 1.2.2.2.) can be acknowledged as having the same facts as the fair usage fee of attached 5. (According to the appraiser 2's appraisal result, the (A) portion of the land of this case is designated as the urban planning despite its actual use as the land of the apartment, and the usage fee of the land of this case should be calculated as the usage fee of the above part of the land of this case as the land of this case, even if there is no reasonable reason for the plaintiffs to use fee of the above.

B) Judgment on the defendant's argument

In regard to this, the defendant asserts that the co-owned land among each land of this case is co-owned on the register, but in fact, the deceased and the defendant agreed to co-owned the co-owned land of this case, and the remaining co-owned land of this case is divided by the defendant. Thus, in calculating the user fee of each land of this case, the deceased and the defendant should not be presumed to co-owned as co-owned share as general co-ownership, and the user fee of this case should be calculated

A sectionally owned co-ownership relationship is legally established only when an agreement is made by many persons to specify the location and area of a certain real estate and to divide the co-owners into sectional ownership. Even in cases where co-owners agreed to divide the jointly owned property from that time to each other and own and use the divided part, a sectionally owned co-ownership relationship may be established. However, in cases where co-owners did not reach an agreement between their intent to exclusively vest a specific portion in the co-owners, such relationship is not established (see Supreme Court Decision 2004Da71049, Apr. 29, 2005).

In full view of the evidence as mentioned above and the purport of the pleading as to co-ownership of co-owned land between the deceased and the defendant, and as to the above co-owned land No. 8 and No. 11 (including the number of each co-owned land), the deceased’s land at the time of the purchase (exchange) of each co-owned land from the defendant around December 1972, and the remaining parts of the co-owned land were agreed upon by the deceased as sectional ownership (hereinafter “previous sectional ownership agreement”), but the above evidence and the above evidence revealed that it was difficult to view that there was no specific co-owned land from the deceased for the purpose of military operations, and there was no need to view that the agreement was made again from the deceased’s co-owned land on April 197, 197 because it was difficult to view that there was no specific co-owned land between the defendant and the deceased’s co-owned land at the time of the purchase and sale of each co-owned land from the defendant around May 8, 197, and that there was no reason to view that the agreement existed between the deceased’s co-owned and the defendant’s.

Therefore, the defendant's above assertion, which is based on the premise that the deceased and the defendant own co-owned land, is without merit.

C) Conclusion

The fair usage fees of each land of this case are as stated in the separate sheet 5. The fair usage fees of each land of this case are as stated in the separate sheet 5. The amount that the defendant is liable to pay to each of the plaintiffs is as stated in the separate sheet 6.06. As the deceased or the plaintiffs are the plaintiffs as to the fact that they received usage fees, such as the details of the usage fees for the period of payment according to the annexed sheet 4.06. Therefore, the amount calculated by deducting the amount that the defendant had already paid from the legitimate usage fees to each of the plaintiffs is as stated in the separate sheet 7.06.

Therefore, the defendant is obligated to pay to the plaintiff Yangyang industry, scholarship association, and future South Korea the amount stated in the "amount of usage fees" among the usage fees accrued from January 1, 2006 and to pay 5% per annum as provided by the Civil Act until January 9, 2009, which is a date of this decision, and 20% per annum as provided by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment, with 438,693,874 won, and 481,570,430 won from the following day of Jan. 1, 2002, 598, 969, 950 won from January 1, 206 to the date of this decision, to the extent of 196% per annum as to the existence and scope of the defendant's obligation to pay 90% per annum as to each of the 160% per annum as to the 160.5% per annum as to the 16.05% per annum.

In addition, when the defendant pays the fees to the deceased or the plaintiffs of each of the lands of this case, he shall pay the fees without delay on January 1 of the corresponding year, and he shall pay the fees on the same day as the date stated in the "actual payment date" column of attached Table 4. Thus, the defendant shall be liable to pay the plaintiffs of the fees for delay at the rate of 5% per annum from January 1 of each year to the date of the actual payment of the fees for delay (the same shall apply to the statement in the amount of delay compensation due to delay payment due to delay from the due date of the payment of the fees for delay) under the Civil Act from January 1 to the date of the above actual payment (the "amount of delay compensation due to delay payment due to delay payment due to the overdue payment due to the overdue payment due to the overdue payment due to the overdue payment due to the attached Form 7) as requested by the plaintiff.

4. Conclusion

If so, each claim against the plaintiffs against the defendant is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is so decided as per Disposition.

[Attachment]

Judges Woo-won (Presiding Judge) No. 1