(영문) 서울고등법원 2013.09.06 2012누25370

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(영문) 서울고등법원 2013.09.06 2012누25370

변상금부과처분취소

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1.The judgment of the first instance shall be modified as follows:

The Defendant’s compensation amounting to KRW 782,80 on July 25, 2011 is KRW 782,800.

Reasons

1. On July 25, 2011, the judgment of the court of first instance accepted part of the primary claim by the Defendant’s cancellation of the disposition imposing KRW 738,770 against the Plaintiff in excess of KRW 782,80,00 on the primary claim, and dismissed the lawsuit as to the conjunctive claim on the other hand.

Accordingly, since only the plaintiff appealed against the plaintiff in the judgment of the court of first instance, the part against the plaintiff in the primary claim and the conjunctive claim are within the scope of the judgment of the court of first instance.

2. The reasons why this part of the imposition of the indemnity is stated are the same as the reasons why the part of the “1. Disposition” was stated on the 2nd 6 through 3rd 5 of the judgment of the court of first instance, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

3. The plaintiff's assertion

A. The public land category in the front and north side of the instant building is not a parking lot, but is not actually used as a parking lot. Since the Plaintiff did not possess the State-owned land of this case without permission, the disposition of this case imposing indemnity on the Plaintiff on the ground of such unauthorized occupation is unlawful and its revocation is sought.

B. Preliminary Defendant should install a fence on the 16m2 part of the instant state-owned land used as a passage for entry into and exit from a vehicle, and manage it properly, and if that is not possible, he/she should be deemed to waive ownership. Therefore, he/she seeks the installation of such fence.

4. The following facts are acknowledged in full view of the statements and images of Gap's evidence Nos. 6, 7, 10, 11, 15, and Eul's evidence Nos. 1, 2, and 5 and the purport of the entire pleadings.

The building of this case is a commercial building consisting of neighborhood living facilities, educational institutes, clinics, offices, etc.

The instant land, which is the site of the instant building, has vacant lots on the front side and north side of the instant building.

참조조문

-민사소송법 제420조

-행정소송법 제8조 제2항

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