(영문) 대법원 2014.7.16.선고 2011다76402 판결

1. In accordance with Article 51(1) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009; hereinafter the same shall apply), the State may impose indemnity on a person who occupies, uses, or benefits from State property without permission, etc. (including a person who continues to occupy, use, or benefits from State property without permission, etc. after the lease or permission for use or profit-making expires; hereinafter referred to as "unauthorized occupant") pursuant to Article 51(4) and (5) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009; hereinafter the same shall apply).

However, the imposition of indemnity against an illegal occupant of State property is an administrative disposition conducted in the superior position of the public authority, and the right to collect indemnity upon such disposition is a right under the public law. On the other hand, the civil right to claim restitution of unjust enrichment is a claim under the private law held as the owner of State property (see Supreme Court Decision 91Da42197, Apr. 14, 1992). In addition, the amount of indemnity differs from the amount of unjust enrichment, which is equivalent to 120% of loan charges or usage fees, which are the basis for calculating unjust enrichment. The purpose of imposing and collecting indemnity for the amount so increased lies in realizing the public interest such as efficient preservation and management of State property beyond the recovery of benefits arising from use and profit-making of State property (see Supreme Court Decision 2005Du11463, May 15, 2008). Moreover, the civil right to claim restitution of unjust enrichment is established when it is impossible to use or profit-making State property without loan, use or profit-making without permission.

As such, the right to impose and collect indemnity under Article 51(1), (4), and (5) of the former State Property Act differs from the legal nature of the right to claim the return of unjust enrichment under the civil law. As such, the State may file a lawsuit claiming the return of unjust enrichment under the civil law as the owner of the State property, separate from exercising the right to claim the return of unjust enrichment against the illegal occupant. Such legal doctrine likewise applies to the Plaintiff entrusted with the affairs concerning the management and disposal of miscellaneous property (which falls under general property under the current State Property Act) among the State property pursuant to Article 32(3) of the former State Property Act and Article 33(2) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009). Accordingly, the Plaintiff may file

Meanwhile, according to the reasoning of the judgment below and the record, the defendant did not enter into a loan agreement and occupied the land of this case, which is a miscellaneous property owned by the State, without authority, from July 1, 2005 to December 31, 2008 without authority, and the plaintiff filed a lawsuit of this case against the defendant seeking restitution of unjust enrichment since it imposed indemnity on the defendant on the ground of an illegal occupation during the above period, but did not have been paid the indemnity. In light of the legal principles as seen earlier, the lawsuit of this case is lawful as it has the benefit of protecting rights

2. In the case of a return of unjust enrichment, the scope of benefits to be returned by the beneficiary is limited to the scope of damages suffered by the victim, and the loss suffered by the victim is equivalent to the profit expected to be ordinarily enjoyed from the relevant property by social norms (see, e.g., Supreme Court Decision 96Da31581, Jul. 11, 1997). However, given that profits which the State is able to ordinarily enjoy from miscellaneous property is a loan where a loan contract is concluded, the unjust enrichment to be returned by the illegal occupant of miscellaneous property is equivalent to the loan charges stipulated in the statutes relating to State property, barring any special circumstance.

① Furthermore, even according to the language and text of Articles 38(1) and 25-2(1) of the former State Property Act, the adjustment of the reduction of rent for a person who has continuously occupied, used, or profit-making for more than one year (hereinafter “ adjusted rent”) is not mandatory, but is possible at the discretion of an administrative agency. ② Adjustment of the reduction of rent for a loan contract is a system for a lending contractor who has faithfully occupied, used, or profit-making on miscellaneous property exceeding one year after lawful conclusion of the loan contract. The calculation of unjust enrichment by applying the same standard to an illegal occupant is not consistent with the purpose of the lending fee adjustment system; ③ Calculation of unjust enrichment based on the adjusted rent is not consistent with the purpose of the lending fee adjustment system; ③ Calculation of unjust enrichment based on the adjusted rent if an illegal occupant occupies occupies more than one year, rather, the illegal occupant obtains more profits than the illegal occupant of a legitimate and short-term lease contract subject to the restriction on the lending period, and thus, it is contrary to equity.

Nevertheless, the lower court determined that unjust enrichment to be returned by the Defendant is the amount equivalent to the adjusted loan charges, and accepted only 13,684,79 won, which is the amount equivalent to the adjusted loan charges, and the remainder of the claim, and upheld the first instance judgment dismissing the claim. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of unjust enrichment to be returned by the illegal occupant of State

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim Shin, and Justice Kim So-young.

4. Dissenting Opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim Shin, and Justice Kim So-young

The Majority Opinion holds that a lawsuit seeking restitution of unjust enrichment is lawful, separate from the exercise of the right to impose and collect indemnity under the former State Property Act, against an unauthorized occupant of State property, and accordingly, the lawsuit in this case is lawful. However, we cannot agree with the Majority for the following reasons.

A. Article 51(1) of the former State Property Act provides that a person who occupies, uses, or benefits from State property without obtaining permission for the lease, use, or profit-making thereof shall collect a loan fee or fee equivalent to 120/100; and an indemnity equivalent thereto; and Article 51(4) and (5) of the same Act provides that, when the indemnity is not paid within the given period, the indemnity may be collected by applying mutatis mutandis the provisions on disposition on default under the National Tax Collection Act.

In a case where the relevant laws and regulations provide for a simple and economic remedy procedure so that the administrative body can exercise and secure the right efficiently, the administrative body can realize the right only through such procedures and seek the satisfaction of the right by means of civil procedure should not be permitted separately. Such view not only accords with the purport of the relevant laws and regulations that have formulated the special remedy procedure for the prompt and economic administrative purpose, but also is consistent with the existing Supreme Court precedents (see, e.g., Supreme Court Decisions 2004Da8630, May 5, 2005; 2009Da1122, Jun. 11, 2009).

In particular, the legal relationship about miscellaneous property, such as the land in this case, among the state property, is a private economic entity and thus is subject to judicial application. However, Article 51 of the former State Property Act imposes a heavy indemnity equivalent to 120% of the loan charges on the illegal occupant of miscellaneous property, and Article 51 of the former State Property Act imposes a special public law regulation by enabling the compulsory collection thereof by applying mutatis mutandis the provisions on the disposition on default of the National Tax Collection Act.

Furthermore, imposing an indemnity on an illegal occupant of State-owned property pursuant to Article 51(1) of the former State Property Act is a binding act in which discretion of an administrative body is not allowed (see Supreme Court Decision 98Du7602, Sept. 22, 1998). It is not a nature that can determine whether to impose an indemnity at the option of an administrative body.

Therefore, if it is possible to impose and collect indemnity under Article 51 of the former State Property Act with respect to the illegal possession of State property, the illegal possession and use of State property can be recovered only by the method of imposing and collecting indemnity, and the claim for restitution of unjust enrichment should not be allowed separately from the method of civil procedure.

B. The Majority Opinion seems to have admitted a civil lawsuit claiming the return of unjust enrichment against an illegal occupant of State property, contrary to the civil lawsuit claiming the payment of indemnity itself, on the premise that the right to impose and collect indemnity and the right to claim the return of unjust enrichment under Article 51 of the former State Property Act are separate rights, but such understanding is not reasonable.

Article 51(1) of the former State Property Act provides that an illegal occupant of State property shall collect indemnity from an illegal occupant of State property. The purport of Article 51(1) is that a normal loan or usage fee shall not be collected in the event that possession, use, or profit-making begins without any legal title (see, e.g., Supreme Court Decision 91Nu5211, Mar. 10, 192). As such, it is naturally premised on the premise that an illegal occupant of State property is to recover benefits obtained without legal cause.

Therefore, even though the amount of indemnity is equivalent to 120% of rent or usage fee, and the punitive meaning against an illegal occupant of State property is included, the essence of indemnity is based on the return of unjust enrichment equivalent to rent or usage fee from the occupation and use of State property without permission, and it is deemed that there is no punitive nature, and it does not mean that the imposition and collection of indemnity and the return of unjust enrichment are completely separate for this reason.

Although the right to impose and collect indemnity under Article 51 of the former State Property Act is a right under the public law, and the civil claim for the return of unjust enrichment is a claim under the private law. However, as seen above, both are to recover profits without any legal cause from an illegal occupant of state property, the imposition and collection of indemnity can be seen as regulating the claim for return of unjust enrichment against an illegal occupant of state property in the form of public law. This is more so in that Article 51 of the former State Property Act equally regulates the illegal occupancy of miscellaneous property where the legal relationship as a private economic entity is at issue.

Ultimately, the right to impose and collect indemnity under Article 51 of the former State Property Act and the right to claim restitution of unjust enrichment under the civil law are different in nature, and the majority opinion that regard both parties as a completely separate right is thought to have mistakenly understood the essence of the right to impose and collect indemnity. Even if the right to impose and collect indemnity under Article 51 of the former State Property Act and the right to claim restitution of unjust enrichment under the civil law are deemed as separate rights, it is not inevitable to allow the full selective exercise of the right, but it is possible to determine the right to exercise the right by taking into account the legislative intent of the law, which serves as the basis for

As seen earlier, Article 51 of the former State Property Act does not only apply to the preparation of prompt and efficient relief methods such as compulsory collection under the National Tax Collection Act for the collection of indemnity, but also special treatment such as the calculation of the increased amount by 20% compared to the unjust enrichment calculated as ordinary loan charges or usage fees, etc. under substantive law.

The reason stipulated in Article 51 of the former State Property Act is that, while the types of State property are diverse and its location map are widely distributed across the nation, the human and material resources of the Office of Administration are restricted. Therefore, in order to achieve administrative purposes related to illegal occupancy of State property, an efficient means was required (see Supreme Court Decision 2005Du11463, May 15, 2008).

In the same context, in addition to the above provisions, the former State Property Act allows removal or other necessary measures to apply mutatis mutandis to the Administrative Vicarious Execution Act (Article 52). In a case where a person delegated with the administrative affairs of State property causes damage to the property by performing an act in violation of his/her duties intentionally or by gross negligence, the former State Property Act has the special provisions under Article 54 (Article 54).

Considering these circumstances comprehensively, the legislative intent of the former State Property Act is to give priority to the exercise of the right to impose and collect indemnity against an illegal occupant of State property in the exercise of the right to claim restitution of unjust enrichment under the civil law. Therefore, rather than allowing both the right to impose and collect indemnity and the right to claim restitution of unjust enrichment under the civil law, if it is possible to impose and collect indemnity, it accords with the legislative intent of the former State Property Act to recover benefits arising from illegal occupation and use of State property only through the imposition and collection of indemnity if it is possible to impose and collect indemnity. If entry is easy and performance is offered with good special seating, it is sufficient to provide an admission ticket, and in addition, it is not sufficient to additionally provide an admission ticket for general spectators with inconvenience in access and viewing. As such, excessive boundary of the right should be ensured.

D. Meanwhile, in a situation where the compulsory collection of indemnity, which applied mutatis mutandis the provisions of the National Tax Collection Act, is not smooth, a person who paid indemnity in accordance with the order of the disposition imposing and collecting indemnity pursuant to Article 51 of the former State Property Act, permits a claim for return of unjust enrichment under civil law in addition to the exercise of the right to impose and collecting indemnity pursuant to Article 51 of the former State Property Act, is liable to compensate more than unjust enrichment, and a person who fails to comply with the disposition imposing indemnity becomes liable for compulsory execution only for minor unjust enrichment, and is contrary to equity. Ultimately, a person who loses public trust in the disposition imposing indemnity pursuant to Article 51 of the former State Property Act is likely to lose his/her trust, thereby making the indemnity system under Article 51 of the former State Property Act clear. As a result, it would be more likely that it would be better for the State property occupant to undergo civil litigation, as it

E. Finally, as shown in the Majority Opinion, it is necessary to look at whether allowing a civil lawsuit seeking restitution of unjust enrichment, separately from the exercise of the right to impose and collect indemnities, is justifiable in terms of legal policy.

The majority opinion argues that in the case of the plaintiff entrusted with the affairs concerning administration and disposal of miscellaneous property, the indemnity cannot be collected directly by applying mutatis mutandis the provisions on disposition on default under the National Tax Collection Act, and it is possible to compel the head of the competent tax office, etc. to collect the indemnity in arrears pursuant to Article 51 (5) of the former State Property Act. In reality, it is not necessary to obtain a separate title for civil execution in consideration of the circumstances where the collection of indemnity is not smooth because it is not possible to obtain cooperation from the head of the competent tax office, etc.

However, allowing a claim for return of unjust enrichment under the civil law, which is another remedy method, is in line with the result of the operation of the wrong system, and it is not desirable to help the state or the plaintiff to know it rather than to improve the wrong reality.

It is rather not an attitude that the court will take to actively cooperate with the administrative agency's wrong work practice, which is going against the procedure for remedying the infringement of rights specially prepared by the law, and which takes an abnormal and roundive method. It is close to the present situation where the administrative agency's long-standing wrong practice is an opportunity to correct it before it is no longer possible, and it is the same as giving an opportunity to correct it.

F. In conclusion, the instant lawsuit is unlawful as there is no benefit in the protection of rights. Accordingly, the judgment of the court below on the legitimacy of the Plaintiff’s claim for restitution of unjust enrichment on the premise that the instant lawsuit is lawful is reversed, and pursuant to Article 437 of the Civil Procedure Act, the part against the Plaintiff in the judgment of the first instance is revoked

For the foregoing reasons, we express our concurrence with the Majority Opinion.