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(영문) 서울고등법원 2014.12.17 2014누61356
변상금부과처분취소
Text

1. The judgment of the court of first instance is modified as follows.

The Defendant’s compensation amounting to KRW 96,655,400, which was paid to the Plaintiff on July 22, 2013.

Reasons

1. The reasoning of the judgment of the court of first instance is to be stated by the court. The part of the judgment on whether the right to impose indemnity has expired by prescription is deleted, and the plaintiff and the defendant are all the grounds of the judgment of the court of first instance, except for the addition of the judgment on the argument that both the plaintiff and the defendant are particularly emphasized or re-emphasized as follows. Thus, this part of the judgment is to be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Whether the instant disposition is lawful

A. The gist of the judgment of the first instance that erroneously calculated the occupancy area of the original Defendant’s assertion 1) was erroneous in the Plaintiff’s assertion. From December 1, 2005 to February 10, 201, the Plaintiff recognized that the Plaintiff occupied and used the land of this case 28m28m2 from among the 16,249m2 (hereinafter “the instant land 1”) 28m2, C river 20,992 (hereinafter “the instant land 2”), 214m2, D river 939m2 (hereinafter “the instant land 3m2”), and 28m2 from among the instant land 10m2, 35410 to 35410m2, the survey appraisal date of the instant land 201m2 from February 1, 2011 to 10, 2012, the Plaintiff occupied and used each of the instant land of this case 13m214 to 14, 2012.

However, it is unreasonable to view that the Plaintiff occupied the entire area of the relevant land because the Plaintiff did not occupy and use the entire area of the relevant land for the following reasons: (a) even during the said period, the Plaintiff neglected the ownership, etc. only to the part recognized as the occupation and use of the said land.

B) Since the period of prescription expires on July 22, 2013, the Defendant imposed indemnity on the Plaintiff on the Plaintiff on July 22, 2013, the right to impose indemnity for the period prior to July 21, 2008 ought to be deemed to have expired by prescription.

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