[Defendant-Appellant] Plaintiff 1 and 2 others (Attorney Lee Dong-sil et al., Counsel for defendant-appellant)

Korea Asset Management Corporation (Law Firm Pak, Attorney Lee Jae-sung, Counsel for defendant-appellant)

May 31, 2012

Seoul Administrative Court Decision 2011Gudan5677 decided October 5, 2011

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

A. On March 18, 2010, the part that exceeds KRW 208,817,930 of the disposition imposing an indemnity amount of KRW 235,405,060 against the Plaintiff is revoked.

B. The plaintiff's remaining claims are dismissed.

2. 85% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

On March 18, 2010, the Defendant revoked the imposition disposition of KRW 235,405,060 on the indemnity charge against the Plaintiff (the Plaintiff claimed revocation of the imposition disposition of KRW 235,670,375 on the indemnity charge, while revising the purport of the claim as above in the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

Of the reasoning of the judgment of this court, the part of the "1. Reasons for the Disposition in this case" and "2. The parties' assertion. (b)" are as follows: "5,670,735 won (the amount calculated by subtracting 265,310 won in overdue interest)" in the last half of the judgment of the court of first instance, and "235,670,735 won (the amount calculated by deducting 265,310 won in overdue interest)" in the main sentence of "235,670,735 won less 265,310 won in overdue interest and 265,310 won in the last half of the judgment of the court of first instance," and "235,405,300 won in the second part of the judgment of the court of second instance (the remaining part of the judgment of the court of first instance)" in the main sentence of "25,406,310 won in the second part of the judgment of 2017.

2. Determination

A. Whether the statute of limitations has expired

1) Unlike the defendant's assertion that the Framework Act on National Taxes provides that the period of exclusion and the period of extinctive prescription shall apply to the right to impose and collect national taxes by distinguishing the right to impose and collect national taxes. However, the former State Property Act (amended by Act No. 9401, Jan. 30, 2009; hereinafter the same shall apply) which served as the basis of the instant disposition does not provide for the period of exclusion or extinctive prescription by distinguishing the right to impose and collect indemnity from the right to impose and the right to impose indemnity and the right to impose late penalty shall be subject to five years in accordance with Article 96(1) of the National Finance Act.

Meanwhile, as the interruption of extinctive prescription is a system that prevents the progress of extinctive prescription by reason of the fact that the non-exercise of the right which serves as the basis of extinctive prescription, the interruption of extinctive prescription already occurred by the exercise of the right by the person who is entitled to collect indemnity pursuant to a notice of payment (whether it is by the cancellation of litigation or by the revocation of ex officio) does not disappear (Supreme Court Decision 95Nu12804 delivered on March 8, 1996).

2) The Defendant imposed on the Plaintiff on July 3, 2008 KRW 314,05,082 of the indemnity amounting to the number of delayed days from December 9, 2002 to 2,033, which was determined by the Supreme Court decision, KRW 235,405,060, which was the due date for payment. The imposition of late payment penalties was revoked on the ground that the Seoul High Court Decision 2009Nu15601 Decided December 24, 2009 did not specify the basis for calculation of late payment penalties. The above judgment became final and conclusive on April 29, 2010, the Defendant calculated the remainder of the late payment penalty amounting to 314,05,000 won from the former State Property Act, Article 51(2) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009; hereinafter the same shall apply) and Article 56(56(56(5) and 215) of the remainder of the indemnity amount of the damages calculated to the Plaintiff.

According to the above, the defendant's right to impose late payment charges for the period before July 2, 2003 after five years retroactively from July 3, 2008. The right to impose late payment charges for the period after July 3, 2003 before the lapse of five years retroactively, shall be deemed to have expired by the above disposition. Such right to impose late payment charges for the period after the lapse of five years retroactively from the above disposition. This disposition to impose late payment charges for the above period shall not be deemed to have been interrupted by the above disposition. This disposition to impose late payment charges for the above period shall not be deemed to have been cancelled by the judgment. (The plaintiff's disposition to impose late payment charges for the imposition of late payment charges is separate, and the disposition to impose late payment charges for the above period after the lapse of 20 years from the above disposition to the expiration of 30 years from the above disposition to the expiration of 20 years from the expiration of 5 years from the date of the above disposition to the expiration of 10 days from the expiration of the extinctive prescription period, and shall not be effective by the prescription.

Meanwhile, according to Articles 56(5) and 44(3) of the former Enforcement Decree of the State Property Act, the period of arrears subject to late payment penalty shall not exceed 60 months from the date on which the payment deadline for the indemnity expires. Since the payment deadline for the above 314,05,082 won is December 9, 2002, the late payment deadline for the indemnity shall not exceed the period until December 9, 2007, which is 60 months from the date on which the payment deadline expires.

Ultimately, the late payment charge on KRW 314,05,082 of the above indemnity is 209,083,246 won (=314,05,082 won + 0.15 days + 365 days + 343/365 days + below KRW 343/365) calculated by deducting 265,310 won for the above indemnity from July 3, 2003 to December 9, 2007 at the rate of 15% per annum, which is the late payment charge rate under Articles 56(5) and 44(3)4 of the former Enforcement Decree of the State Property Act. Thus, the part of the above disposition in excess of the above amount is unlawful, unless there are special circumstances.

B. Whether the principle of proportionality is violated

In addition, there is no evidence to prove that the Defendant recommended the Plaintiff to continue to use each of the instant land and buildings without obtaining permission for the loan, use, profit-making, etc., and in this case where the Defendant imposed late payment charges on the Plaintiff pursuant to the former State Property Act and its Enforcement Decree on the Plaintiff on the ground that the Plaintiff did not pay the indemnity determined by the Supreme Court decision, the instant disposition does not contravene the principle of proportionality or the purport of the indemnification system on the sole basis of the fact that the above indemnity is excessive or the late payment charge rate is higher.

C. Sub-committee

The plaintiff's assertion that the extinctive prescription for the portion exceeding the above legitimate arrears has expired is with merit, and the remaining arguments are without merit, and the defendant's assertion that the extinctive prescription for the aforementioned portion of the overdue arrears has not been completed is with merit, and the remaining arguments are without merit.

3. Conclusion

Therefore, the part of the disposition of this case which exceeds 208,817,930 won of the above legitimate arrears shall be revoked as unlawful, and the remainder of the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair in conclusion, it shall be accepted in part of the defendant's appeal, and it shall be so decided as per Disposition by the court of first instance.

Judges Lee Tae-tae (Presiding Judge)