(영문) 서울고등법원 2014.12.17.선고 2014누61356 판결

A. The Defendant’s disposition of imposing indemnity of KRW 96,655,400, which the Plaintiff rendered on July 22, 2013 exceeds KRW 34,952,90, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of imposing indemnity of KRW 96,655,400, which the Plaintiff rendered on July 22, 2013 exceeds KRW 3,774,950, shall be revoked.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The part exceeding KRW 3,774,950 of the imposition of indemnity amounting to KRW 96,65,400 against the plaintiff on July 22, 2013 shall be revoked.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

Reasons

1. Quotation of the first instance judgment

This court's reasoning is to delete the part of the judgment of the court of first instance as to whether the right to impose indemnity has expired by the statute of limitations, and except for the addition of the judgment on the argument that both the plaintiff and the defendant are emphasizing or re-emphasizing in this court, all of the reasons for the judgment of the court of first instance are as follows. Thus, this court shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. Whether the instant disposition is lawful

A. Summary of the plaintiff and the defendant's assertion

1) The plaintiff's assertion

A) The court of first instance erred in calculating the occupancy area of the Plaintiff: ① 288m from December 1, 2005 to February 10, 201; ② from February 11, 2005 to December 10, 201, the Plaintiff occupied the land of this case, 214m2, D river 939m2 (hereinafter “the second land”) among the 16,24m2, 214m2, 214m2, and 939m2 (hereinafter “the third land of this case”); ② from February 11, 2011 to October 9, 201, the 201m200 to 35410m3m2 of the instant land of this case; and ③ from February 1, 2011 to 2019m2 of the instant land of this case, the Plaintiff recognized the occupancy and use of the land of this case, 31m2, 2319m2, 231m2 of each of this case.

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) Termination of the statute of limitations on the imposition of indemnity

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

2) Defendant’s assertion - In light of the situation of the restaurant, camera, etc. operated by the Plaintiff due to the error in calculating the occupancy area, the Plaintiff clearly occupied the area of the State property in the subsequent area even before February 11, 201, which is the survey and appraisal date of the case 35410 group Sungnam-Support 201 group 35410 group without permission. Thus, the judgment of the court of first instance that recognized only a part of the occupancy area without permission is erroneous in the calculation of the occupancy area.

B. Determination

1) Determination as to the erroneous assertion on the calculation of occupancy area

In light of the following facts: (a) the Plaintiff and the Defendant were deemed to have carried out the instant land 1 and 20-1: (b) the Defendant, 1 and 2; (c) the Defendant, 2, 30-1 and 304m of the instant land among the instant land 1 and 40-1 and the Defendant’s land 2, 30-1 and 19-2, 20-1 and 304m of the instant land among the instant land 2; (d) the Defendant, 1 and 30-1 and 4m of the instant land 2, 1 and 20-1, 20-1 and 20-7m of the instant land 1 and 30-10m of the instant land 2, 1 and 30-4m of the instant land 30-1 and 4m of the instant land 20-1 and 206m of the instant land 3m of the instant land 1 and 3m of the instant land 20-2.

2) Determination on the assertion on the extinction of prescription

The extinctive prescription of the right to impose indemnity is five years (Article 96(1) of the National Finance Act), and the Defendant’s right to impose indemnity for the period prior to July 21, 2008, which was five years prior to the date of the disposition of indemnity in this case, is deemed to have expired by prescription in principle. Korea received a favorable judgment from the Plaintiff on August 27, 2010, by filing a lawsuit against the Plaintiff seeking the transfer of the occupied portion of each of the instant land. However, as seen earlier, the imposition of indemnity against an unauthorized occupant of State property is an administrative disposition conducted in the superior position of the public authority. The right to collect indemnity by the disposition of imposition of indemnity is a right under public law and the right to collect indemnity by the disposition of imposition of indemnity is a private claim held as the owner of State property, while both are different in legal nature. Thus, even if Korea sought the transfer of land occupied by the Plaintiff through a land transfer lawsuit, it cannot be deemed that the extinctive prescription of the right to impose indemnity for the same land has been interrupted (see, e.g., Supreme Court Decision 20137Da3636.

3) Sub-determination

Therefore, the part of the Disposition in this case exceeding 34,952,900 won calculated as shown in the separate sheet with the exception of the previous part of July 21, 2008, which was five years ago as of the date of the Disposition in this case, is unlawful.

3. Conclusion

Therefore, the portion exceeding KRW 34,952,90, which was calculated as above, among the disposition imposing indemnity of this case 96,65,400, should be revoked as unlawful. Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. However, since the judgment of the court of first instance is partially different, it is unfair to conclude it, and it is so decided as per Disposition by accepting part of the plaintiff's appeal and modifying the judgment of the court of first instance as above.