Korea Railroad Corporation (Law Firm LLC, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Osung, Attorneys Kim Sung-gu et al., Counsel for the plaintiff-appellant)

March 7, 2017

Seoul Central District Court Decision 2014Gahap58451 (main office), 2016Gahap518357 (Counterclaim) Decided June 14, 2016

1. The Plaintiff (Counterclaim Defendant)’s appeal against the principal lawsuit of this case and the counterclaim and the incidental appeal against the counterclaim by the Defendant (Counterclaim Plaintiff) are dismissed.

2. The costs incurred by an appeal shall be borne by the Plaintiff (Counterclaim Defendant) in total, and the costs incurred by an incidental appeal, respectively, by the Defendant (Counterclaim Plaintiff).

1. Purport of claim

In this lawsuit: Around December 31, 2004, 2004; January 25, 2010; and January 201, 201, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)’s obligation to return KRW 7,805,791,690 on the consignment contract for the maintenance and repair of each general railroad facility is not nonexistent.

Counterclaim: The plaintiff shall pay to the defendant 7,805,791,690 won with an annual amount of 6% from August 16, 2013 to the service date of the counterclaim of this case, and with an annual amount of 15% from the next day to the day of full payment.

2. Purport of appeal

In the principal lawsuit: Revocation of the judgment of the first instance court. This judgment is identical to the purport of the principal lawsuit.

Counterclaim: The part against the plaintiff among the judgment of the court of first instance shall be revoked, and the defendant's counterclaim corresponding to the revoked part shall be dismissed.

3. Purport of incidental appeal;

The part concerning the counterclaim of the judgment of the court of first instance is modified as follows. It is identical with the purport of the counterclaim.

The main lawsuit and counterclaim shall also be deemed to have been filed.

1. The basis facts and the arguments of the parties;

The reasoning for this part of this Court is that the corresponding part of the judgment of the court of first instance (from No. 2, No. 17 to No. 12, No. 17) is the same with the corresponding part of the judgment of the court of first instance except for the addition of “Article 3 (Definition of Terms) of the Framework Act and related provisions” following No. 5 of the judgment of the court of first instance (Article 420 of the Civil Procedure). Thus, this part is cited as it is in accordance with the main

3. Determination

A. As to the subject of cost-bearing on the subject of the instant enforcement

The reasoning for this part of this Court is that the corresponding part of the judgment of the court of first instance (Articles 12, 20, 14, and 12) is the same as that of the judgment of the court of first instance, and thus, it is acceptable to accept this part in accordance with the main sentence of

B. The Plaintiff’s occurrence and scope of restitution of unjust enrichment

1) Plaintiff’s return of unjust enrichment

Therefore, the plaintiff shall bear the expenses of the execution of this case. Therefore, the plaintiff shall be deemed to have obtained the benefit of the entrustment expenses concerning the execution of this case, which was paid by the defendant without any legal ground, and therefore, the plaintiff shall be obligated to return it to the defendant as unjust enrichment.

2) Scope of return of unjust enrichment

Furthermore, comprehensively taking account of the health stand, Eul evidence Nos. 1, 2, 3, 11, 13, and 19 with respect to the scope of unjust enrichment that the plaintiff is obligated to return to the defendant, and the purport of the testimony and arguments of Non-Party 1 and Non-Party 2 of the first instance trial witness, the plaintiff's person in charge and the defendant's person in charge from January 2013 to August 201, 201 can be recognized that the "amount subject to refund" in the attached amount redemption statement is calculated through consultation with the sum of KRW 23,274,371,268 with respect to each item of the execution of the instant case from January 205 to August 2013.

A) The part pertaining to “improvement” in the separate sheet of the amount to be recovered, among the grounds for exclusion.

In addition, Article 3 subparag. 7 of the Framework Act defines “maintenance and repair of railroad facilities” as “ordinary activities for inspection, repair, replacement, improvement, etc. for the purpose of maintaining the present condition and improving the performance of existing railroad facilities,” and there is no ground to conclude that “improvement” is excluded from the duty to maintain and repair the railroad facilities. In addition, in addition, the term of “management” generally includes improvement activities within the scope of not changing the object or nature, the concept of “management” does not mean that the duty to maintain and repair and manage the railroad facilities borne by the Plaintiff according to the terms of the instant permission is limited to “ passive expenditure or necessary expenses for the maintenance and management”. Accordingly, this part is included in the cost of unfair entrustment.

B) Of the classification of reasons for exclusion, “judgment” portion of “unauthorized location of free-use facility” is included in the classification of reasons for exclusion.”

In the execution of the instant case, the Plaintiff asserts that “the construction of the safety fence of the location where the application for free use is not filed, concrete packing, fence repair, drainage, construction of the fence, braille block repair, lighting equipment installation, cleaning and ventilation repair, facilities and equipment for the maintenance and repair of tracks section, the office of the control room, the office of the underground drainage room, the replacement of the air control room, the repair of the air air conditioners, the repair of the State facilities, and the legal inspection fees, etc.” among the construction of the safety fence of the location where the application for free use is not filed, should be excluded from the entrustment cost. As such, the Plaintiff claimed that the sum of the above expenses should be excluded from the entrustment cost.

As to this, the defendant is a person who has been executed in a facility not subject to the permission of use of this case or executed money, the above KRW 175,688,492 among the above items shall be excluded from the amount of money for entrustment. As to the remaining expenses, the defendant must prove that each of the above items is included in the plaintiff's duty of maintenance and management as the subject of permission of use of this case. However, it is difficult to conclude that each of the above items is subject to the permission of use of this case. Rather, according to the evidence evidence No. 18, the defendant paid construction expenses, such as the installation of fences, to the station, etc. for which the plaintiff did not obtain the permission of this case. Thus, the above KRW 423,26,020 should be excluded from the amount of money for entrustment.

C) The part pertaining to “data collection error” in the classification of reasons for exclusion from the “judgment” column of the attached amount restitution sheet.

The plaintiff asserts that the defendant erred in calculating that the above expenses were executed from the commission fees under the contract for the maintenance and repair of this case, as to the 855 execution targets (which is classified as 101,434,848 won, and the "judgments" in the attached amount list) that maintained and repaired a facility not subject to the permission for use of this case as the plaintiff's operating asset.

On the other hand, the defendant only asserts that "the plaintiff's claim is not acceptable because it arranged the above data based on the item of the entrustment expense claimed by the plaintiff," and it does not submit any data to support the execution target and ground of the above expenses. Therefore, the above expenses should be excluded from the entrustment expense in accordance with the legal principles of the burden of proof.

D) Of the grounds for exclusion column in the separate sheet “judgments” of the separate sheet, the corresponding portion of “alight equipment, fire-fighting equipment, and electrical equipment annexed to platform” is applicable.

The Plaintiff asserts that the Plaintiff did not have a duty to bear the costs of inspecting and repairing the entrance facilities installed pursuant to the "Act on the Promotion of the Use of Mobility Disadvantaged Persons" among the subject of the instant execution, the costs of installing fire-fighting facilities pursuant to the "small Method", and the costs of electrical facilities attached to the platform,

However, the basic fire-fighting equipment, electrical equipment, and special boarding facilities, which are the basic facilities installed pursuant to the laws and regulations for the safety of platforms used by the Plaintiff for free according to the permission of use of this case, constitute the facilities subject to the permission of this case, and the expenses for the maintenance and repair of the above facilities are the expenses for the permission of this case. Therefore, this part shall

E) The corresponding portion of “maintenance and repair expenses of the Home Shelf” in the classification of the reasons for exclusion from the “judgment” column of the attached amount restitution sheet.

The Plaintiff obtained the instant permission to use only the platform site, and therefore, the Plaintiff asserts that the cost of maintaining and repairing the Home Shelf installed on that ground does not have any obligation to bear the said cost. However, the Home Shelf is a structure installed for enhancing the convenience of railroad users within the platform which is the object of the instant permission to use the Home Shelf, and it cannot be deemed an independent facility irrelevant to the platform. Therefore, this part is included in the entrustment cost.

F) Of the separate grounds for exclusion from the “judgment” column of the separate sheet, the corresponding part of “the braille block for the disabled, safety and convenience facilities for the disabled, and precise safety diagnosis” is applicable.

The plaintiff asserts that the expenses for installation and repair of braille blocks and toilets for the disabled installed in accordance with the "Act on the Promotion of Convenience for Mobility Disadvantaged Persons" are expenses to be paid by the defendant who is the owner.

However, the duty of maintenance and repair following the permission of this case also includes the duty to comply with the obligations stipulated in the relevant laws and regulations concerning the relevant facilities. Thus, the Plaintiff is obligated to pay the relevant expenses. Therefore, this part is included in the entrustment cost.

G) The portion excluding paragraphs (a) through (f) of the aforementioned subparagraph among the classification of reasons for exclusion in the Schedule of Amount to be recovered.

In light of the fact that the plaintiff and the defendant agreed on the item and amount of the entrustment cost which was unfairly executed regarding the execution subject to the execution of the case, the above fact of recognition is as seen earlier, and the plaintiff does not dispute the above part, this part shall be included in the entrustment cost of unfair execution.

Therefore, the Plaintiff is obligated to pay 22,749,670,400 won (=23,274,371,268 won - 423,266,020 won - 101,434,848 won) remaining after deducting the amount specified in paragraphs (b) and (c) from the sum of the amount to be refunded in return of unjust enrichment from the Defendant.

C. Determination on the assertion of extinctive prescription

1) As to the Plaintiff’s assertion of extinctive prescription, the instant maintenance and repair contract provides that “the Plaintiff shall submit to the Minister of Land, Infrastructure and Transport a statement of accounts on the entrusted affairs within two months after the end of the business year, the statement of accounts on the entrusted affairs within three months (the maintenance and repair contract between 2005 and 2010)” and “the Plaintiff shall submit a statement of accounts and the statement of accounts on the entrusted affairs to the Minister of Land, Infrastructure and Transport (the maintenance and repair contract of 201) within six months after the end of the business year.”

According to the above facts, the plaintiff is obligated to submit a statement of accounts to the defendant as of February 1, 2009 concerning the execution of the entrustment expenses in 2008 and the settlement of accounts until the end of March 2009, and the defendant could settle the entrusted expenses in 2008 through the settlement of accounts at the end of March 2009, and thus it is acquired at the time of the right to claim the return of unjust enrichment. Therefore, among the defendant's right to claim the return of unjust enrichment with respect to the entrusted expenses in 2005 to 2008, the claim for the entrustment expenses in 2005 to 2008, among the right to claim the return of unjust enrichment with respect to the entrusted expenses in 2008, the five-year prescription period from the date of the filing of the lawsuit in this case, has expired. Thus, the defendant's right to claim the return of unjust enrichment with respect to the entrustment expenses in 2005 to 208.

2) As to this, the Defendant first asserts that, in a situation where it is difficult for the right holder to objectively understand the existence of the right, the extinctive prescription of the relevant right is proceeding from the time when the right holder becomes aware of the occurrence of the right. On October 2012, the Defendant became aware of the fact that the Plaintiff had spent commission expenses under the instant contract for maintenance and repair in the course of the settlement of commission expenses, and it is impossible for the Defendant to become aware of the occurrence of the right to claim restitution of unjust enrichment in this case before considering the lack of settlement data and the practical difficulties in the actual inspection of commission expenses, etc., the period of extinctive prescription of the right to claim restitution of unjust enrichment in this case is around October 2012. However, just because the Defendant’s assertion is insufficient to deem that the Defendant was unable to know of the occurrence of the right to claim restitution of unjust enrichment in this case, regardless of

In addition, the defendant asserts that, on August 26, 2013, the plaintiff notified the payment of the above unjust enrichment, the right to claim the return of unjust enrichment on the consignment expenses after 2007 was suspended in accordance with Article 96 (4) of the National Finance Act.

In light of the purport of evidence No. 7 and the whole argument, it can be acknowledged that the notice of payment of unjust enrichment as to the above unjust enrichment was sent on or around August 26, 2013, which was five years from the end of February 2009, and reached the plaintiff around that time. The above notice of payment follows Article 13 of the State Credit Management Act, and according to Article 96 (4) of the National Finance Act, the notice of payment made by the State pursuant to the provisions of the Act and subordinate statutes has the effect of interrupting prescription. Thus, the statute of limitations of the right to claim the return of unjust enrichment as to the portion that occurred after August 26, 2008, which was five years from the time when the above notice of payment was served, was interrupted. Thus, the defendant's ground for interruption of the statute of limitations is justified only for the part regarding the right to claim the return of unjust enrichment as to the entrustment of expenses for the year 208.

After all, the plaintiff's defense of extinctive prescription is justified for the part of the defendant's right to claim the return of unjust enrichment against the consignment fee in 2005 to 2007, and the remainder is without merit.

D. Sub-committee

1) Ultimately, the Plaintiff received under the instant maintenance and repair contract: ① Total amount of KRW 13,076,869,140 for the consignment expenses in the year 2008 through 2011 (the part corresponding to the year 2008 through 2011 out of the “amount subject to refund” in the “amount subject to refund”) ② KRW 360,718,41 for the facilities not subject to the instant permission for use from 2008 to 2011; ③ KRW 2,521,339 for the expenses disbursed from 2008 to 2011 with the Plaintiff’s assets, and KRW 12,661,629,629,390 for the remainder (i.e., KRW 13,076,869, KRW 140, KRW 360,718,411,531,539).

2) Therefore, the Plaintiff is obligated to pay to the Defendant, in unjust enrichment, delay compensation damages of KRW 7,805,791,690 (the execution balance of this case and KRW 3,000) that the Defendant partially claimed from the Defendant, among the above KRW 12,661,629,390 (the execution balance of this case and KRW 7,800) and the Defendant’s claim for restitution thereof, from August 16, 2013 to June 14, 2016, which is reasonable to dispute over the existence or scope of the Plaintiff’s obligation to perform, 4%) 6% (the annual interest stipulated in the Commercial Act, which is the date the first instance judgment was rendered, until June 14, 2016, and 15% (hereinafter “Promotion Act”) under each ratio of 12,661,629,390, and the Plaintiff’s claim seeking no refund of the execution balance of this case is without merit (the Plaintiff’s claim that the Plaintiff was not obligated to pay the Plaintiff’s damages to the Defendant’s damages.

4. Conclusion

Therefore, the defendant's counterclaim claim is justified within the scope of the above recognition, and all the plaintiff's main claim and the defendant's remaining counterclaim are dismissed. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal and the defendant's incidental appeal are dismissed as they are without merit. It is so decided as per Disposition.

Judges Park Jung-hwa (Presiding Judge) early heat

Note 1) Of the expenses of KRW 423,266,020 from 205 to 2011, the expenses corresponding to the year 2008 to 2011.

Note 2) Of the costs of KRW 101,434,848 from 205 to 2011, the costs shall be those corresponding to the year 2008 to 2011.

3) On August 16, 2013, prior to the notice for payment to the Plaintiff, the Defendant requested a notice of revenues for the balance of the settlement of accounts according to the financial result of the instant maintenance and repair contract.

4) The Plaintiff’s act of entering into the instant maintenance and repair contract for the maintenance and repair of railroad facilities constitutes commercial activities, and the “debt arising from commercial activities” applicable to the statutory interest rate under Article 54 of the Commercial Act includes not only the obligation directly arising out of commercial activities but also the obligation identical thereto or the obligation recognized as being modified thereto. As such, the statutory interest rate in commercial activities shall apply to the claim for the return of the cost of unfair

5) The Defendant sought payment of damages for delay under Article 3(1) of the Promotion Act from the day following the delivery date of the counterclaim of this case. However, Article 3(2) of the Promotion Act provides that “Where it is deemed reasonable for an obligor to dispute the existence of the obligation or the scope of the obligation, the provisions of paragraph (1) shall not apply to the reasonable scope.” The above reasonable scope is not the reasonable scope of the obligation for the obligor to dispute, but the reasonable period of time for the obligor to dispute (see, e.g., Supreme Court Decision 86Meu1876, May 26, 1987). Since it is reasonable for the Plaintiff to dispute the existence and scope of the obligation for performance with respect to the Defendant’s counterclaim of this case until the pronouncement date of the judgment of the first instance court, the part of the Defendant’s damages for delay exceeding the above scope is dismissed.