Whether the interruption of extinctive prescription finally determined by notice for payment pursuant to Article 98 of the Budget and Accounts Act also takes effect on the state's judicial claim(negative)

Article 174 of the Civil Code recognizes only the provisional effect of interrupting prescription for six months for general creditors, unlike the fact that Article 98 of the Budget and Accounts Act recognizes the effect of interrupting prescription in the "payment notice made by the State" in accordance with the provisions of the law, the legal administrative body recognizes special effect of the public law, such as the power of self-performance, in order to secure the effectiveness of the State's intention with respect to the obligations arising from the order of finance, which is an administrative action ordering payment. In this regard, Article 98 of the Civil Code recognizes special effect for the obligations arising from the order of finance, which is an administrative action ordering payment, in order to secure the effectiveness of the State's intention. For the same reason, the above "payment notice" also constitutes one procedure under the name of the State's financial power, so that the public law of the State can effectively secure the right to claim payment, so the above provision applies only to the right to claim payment under the public law that occurs by the order of finance, and it does not apply to the right to claim payment under the private law of the State.

Article 98 of the Budget and Accounts Act, Articles 168 and 174 of the Civil Act

Supreme Court en banc Decision 76Da1720 Decided February 8, 1977 (Gong1977, 919)

Korea

Defendant (Attorney Jeong-won, Counsel for the defendant-appellant)

Seoul District Court Decision 96Da40009 delivered on November 8, 1996

1. The plaintiff's appeal and the defendant's incidental appeal are all dismissed.

2. Expenses for an appeal and incidental appeal shall be borne by each person; and

The defendant shall pay to the plaintiff 234,933,00 won with 25 percent interest per annum from November 9, 1996 to the date of full payment.

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked, and the defendant shall pay to the plaintiff an amount of KRW 84,056,734 and an amount equivalent to 25% per annum from November 9, 1996 to the date of full payment.

Of the judgment of the court of first instance, the part against the defendant ordering payment of 90,491,926 won to the plaintiff and the amount equivalent to 25 percent per annum from the day following the date of the judgment of the appellate court of this case to the day of full payment shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Determination on the cause of the claim

A. Recognition of the cause of the claim

Comprehensively taking account of the purport of the argument in the first instance court as to Gap evidence 1-2, Gap evidence 1-2, Eul evidence 2-1-1, Eul evidence 3-1-1, and the result of the first instance court's on-site inspection, the part of the above 14-6 railroad site of Yongsan-gu Seoul Metropolitan Government, which was owned by the plaintiff from August 15, 1945, was divided from 180-8 to 254.1 square meters, and 197-7 square meters of the railroad site of 180-2, Yongsan-gu, Yongsan-gu, Seoul, which was owned by the plaintiff from August 15, 1945, which was divided from 940 square meters to 166-4 square meters, and the part of the above 14-14-2, which was owned by the plaintiff and the transferee of the above 1-2 and the part of the above 1-2, which were transferred to the plaintiff among the above 1-2, 184-2, and the same part of the land.

(b) Markets:

According to the above facts, only the land and the building of this case owned by the plaintiff were transferred to another, and the transferee acquired the legal superficies under customary law as to the land of this case. Since the defendant who acquired the previous building of this case thereafter, barring any special circumstances, he shall be deemed to have the obligatory contract with the above building to take over the legal superficies of this case, the defendant shall be entitled to exercise the legal superficies creation registration procedure for the plaintiff in successive subrogation of the previous transferee, and the above intermediate transferee shall be entitled to claim the execution of the registration procedure by subrogation or directly by subrogation of the above intermediate transferee. However, even if the defendant did not complete the registration of transfer of legal superficies, while the defendant owned the building of this case and did not possess the land of this case while he did not complete the registration of transfer of legal superficies, the defendant is obligated to return the profit equivalent to the rent acquired by the possession and use of the land of this case as unjust enrichment to the plaintiff who is the owner of the land of this case.

2. Judgment on the defense and the second defense

A. Determination on the statute of limitations defense

(1) As to the Plaintiff’s claim for restitution of unjust enrichment from November 11, 1986 to the date of filing the instant lawsuit, the Defendant asserted that, in substance, the unjust enrichment in this case is a royalty claim to which the short-term extinctive prescription period of three years as stipulated in Article 163 subparag. 1 of the Civil Act applies. Thus, the claim for return of unjust enrichment for which three years have already expired at the time of filing the instant lawsuit, and even if not, the claim for return of unjust enrichment for which five years have already expired at the time of filing the instant lawsuit pursuant to Article 96(1) of the Budget and Accounts Act, the claim for return of unjust enrichment for which five years have already expired at the time of filing the instant lawsuit was proved to have expired, and the Plaintiff’s substance of the instant unjust enrichment in this case is a rent for statutory superficies under the customary law. Since there was no agreement between the parties on the amount of rent for the instant portion of land, and there was no previous claim for it to the court, it cannot proceed with the statute of limitations on the instant claim.

(2) On the other hand, the provisions of Article 163 subparagraph 1 of the Civil Act are subject to the application of the claim for the payment of money or goods within a period of not more than one year, such as usage fees. Since the plaintiff's claim in this case is a claim for return of unjust enrichment and the payment period is not specified, it cannot be included in the concept of usage fees under the above provision. Thus, this part of the defendant's defense is without merit, and the defendant is in the position to claim for the establishment, registration, and transfer registration of legal superficies from the person who acquired the building in this case from the person who acquired the building in this case before the transfer of the building in this case on behalf of the transferor of the building in front of the previous owner of the building in front of the previous owner of the building, and the registration cannot be deemed as a legal superficies, and therefore the defendant is a legal superficies. Accordingly, the plaintiff's claim in this case based on the premise that the plaintiff's claim is a claim

However, the claim for return of unjust enrichment is a right of the State for the payment of money as stipulated in Article 96 (1) of the Budget and Accounts Act, and if it is not exercised for five years, the extinctive prescription is complete unless it is exercised for five years, barring any other special circumstance, the plaintiff's claim for return of unjust enrichment for the period of possession before the five years retroactively from the date of filing of the lawsuit in this case shall be extinguished by the extinctive prescription under the above provision, and this part

B. Determination as to the second defense against the interruption of extinctive prescription

(1) On November 25, 1991, the Plaintiff notified the Defendant of the payment of indemnity on the ground that he occupied state-owned property without title; and on January 19, 194, by recognizing that he lawfully uses state-owned property. Since each of the above payment notice has the effect of interrupting prescription pursuant to Article 98 of the Budget and Accounts Act, the Plaintiff’s claim, the prescription period of which has not been expired at the time of November 25, 1991, is suspended.

In full view of the whole purport of the oral argument in the statement No. 3-1, No. 5-2, and No. 6-1, and No. 6-2, the plaintiff issued a disposition to impose KRW 142,085,30 on November 11, 1986 to December 31, 1990 on the ground that the defendant was illegally occupied and used the part of the land of this case from the State or without obtaining permission for use or profit-making, on November 11, 1986 to December 31, 1990. Further, on January 19, 1994, the plaintiff recognized that the defendant was in a legitimate legal status to occupy and use the land of this case, and that the defendant imposed the above disposition on the land of this case from November 1, 1986 to December 1, 1996 to December 31, 197.

However, unlike Article 174 of the Civil Act recognizes only the provisional effect of the interruption of prescription for six months with respect to the "Peremptory Notice of General Creditor", Article 98 of the Budget and Accounts Act recognizes the effect of the interruption of prescription with respect to the "Peremptory Notice of Payment made by the State in accordance with the provisions of the law," special effect such as the power of self-performance in order to secure the effectiveness of the State with respect to the obligations under the public law arising from a ruling order, which is an administrative act ordering a certain act, omission, acceptance, or payment to the public for the purpose of finance, by the legal administrative body. For the same purport, the "Peremptory Notice of Payment" under Article 98 of the same Act also constitutes a procedure under the name of the State's fiscal power so that it can effectively secure the right to claim payment under the public law of the State, so the above provision applies only to the right to claim payment under the public law arising from the ruling order, and there is no application with respect to the right to claim payment under the private law of the State. Therefore, if the above obligation is not subject to the payment notice under the law.

However, each of the above notices may be recognized as effective as provisional interruption of extinctive prescription, such as the peremptory notice under the Civil Act, but the fact that the instant lawsuit was filed on June 17, 1996, which was six months after each of the above notices for payment, is obvious in the record, and therefore, the plaintiff's re-claim is not justified.

(2) The plaintiff again submitted to the Administrator of the Seoul Regional Railroad Office a written confirmation of unauthorized Use as of June 5, 1991, and approved that the defendant occupied and used the land of this case without permission and paid compensation for the plaintiff from November 11, 1986 to November 11, 1986. As such, the plaintiff asserted that the claim for return of unjust enrichment of this case was suspended due to the interruption of prescription. Thus, according to the evidence No. 7, it can be acknowledged that the defendant prepared a written confirmation as alleged at the date of the plaintiff's assertion and submitted it to the Administrator of the Seoul Regional Railroad Office on June 17, 1996, which was 5 years after the defendant's above submission, and there is no other counter-proof, but there is no other counter-proof. Thus, it is apparent that the lawsuit of this case was filed on June 17, 1996, which was 5 years after the defendant's above submission

C. Thus, the defendant is obligated to pay to the plaintiff the amount of unjust enrichment equivalent to the rent from June 17, 1991, which was five years retroactively from the filing date of the lawsuit in this case, to June 17, 1996.

3. Determination on the amount of unjust enrichment

Furthermore, in full view of the results of the appraisal by the first instance court as to the amount of unjust enrichment equivalent to the rent to be returned by the defendant, the rent in the case where there is no deposit from June 17, 1991 to June 17, 1996 as to the part of the land of this case can be recognized as constituting 150,876,266, as shown in the separate sheet, and there is no counter-proof, and therefore, the defendant's unjust enrichment to be returned to the plaintiff is 150,876,266 won.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 150,876,266, and damages for delay at the rate of 25 percent per annum from November 9, 1996 to the date following the date following the date of the judgment of the court of first instance that the plaintiff seeks to pay to the plaintiff 150,876,266, and damages for delay at the rate of 25 percent per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the date of the judgment of the court of first instance. The plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as there is no reason.

Judges Shin Jae-sung (Presiding Judge)

【Separate Notice】