[1] The period of extinctive prescription of the right to impose indemnity and the right to impose late payment charges under the former State Property Act (=5 years) and the starting point of starting of

[2] Legal nature of the disposition imposing late payment charge under Article 51(2) of the former State Property Act (=affort act)

[1] Under the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009; hereinafter “former State Property Act”), the right to impose and collect indemnity and late payment penalty is not subject to exclusion period or extinctive prescription. Thus, the five-year extinctive prescription is applied pursuant to Article 96(1) of the National Finance Act. Furthermore, according to Article 51(2) of the former State Property Act and Articles 56(5) and 44(3) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641 of Jul. 27, 2009), if a person liable to pay indemnity fails to pay it within the time limit, the Office of Administration may impose late payment penalty within the limit not exceeding 60 months from the expiration of the time limit for payment of indemnity and the right to impose late payment penalty arises from the expiration of 60 months from the expiration of the time limit for payment of indemnity to the expiration of 60 months from the expiration of the time limit for payment.

[2] Article 51 (2) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009) provides that "where compensation is not paid within the specified period, late payment charges may be collected as prescribed by the Presidential Decree." However, Article 44 (3) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641 of Jul. 27, 2009; hereinafter "former Enforcement Decree") which applies mutatis mutandis under Article 56 (5) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641 of Jul. 27, 2009) provides that "where compensation is not paid within the specified payment period, the late payment charges shall be notified with the specified payment period attached to the State Property Act." Article 51 (2) of the former Enforcement Decree of the State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009) provides that "Where compensation is paid within the specified payment period shall be imposed.

[1] Article 51(1) and (2) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009) (see current Article 72(1) and (2) (see current Article 73(1)); Article 44(3) and 56(5) (see current Article 71(4) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641 of Jul. 27, 2009); Article 96(1) of the National Finance Act / [2] Article 51(2) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009); Article 73(1) of the former Enforcement Decree of the State Property Act (wholly amended by Act No. 9401 of Jul. 27, 2009); Article 51(4) and (5) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 47(1)

Chovak Co., Ltd. (Attorneys Kim Young-soo et al., Counsel for the defendant-appellant)

Korea Asset Management Corporation (Law Firm Pak, Attorneys traditional Tra-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu39297 decided June 21, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Under the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter the same), the right to impose and collect the indemnity and its late payment charges is not subject to the exclusion period or the application of the extinctive prescription. Thus, both the right to impose and the right to impose the indemnity are subject to the five-year extinctive prescription pursuant to Article 96(1) of the National Finance Act. In addition, according to Article 51(2) of the former State Property Act and Articles 56(5) and 44(3) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009; hereinafter the same), if a person liable to pay indemnity fails to do so within the time limit, the Office of Administration of the State Property may impose and collect the late payment charges within the limit of 60 months from the expiration of the time limit for payment of indemnity until the expiration of 60 months from the expiration of the time limit for payment.

Meanwhile, as the interruption of extinctive prescription is a system that prevents the progress of extinctive prescription by reason of the fact that it is not a 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 holding the right to collect indemnity pursuant to a notice of payment, regardless of whether the disposition for imposition was cancelled (whether it is by the cancellation of litigation or ex officio cancellation), does not disappear (see Supreme Court Decision 95Nu12804 delivered on March 8, 1996).

B. The lower court determined that: ① the Defendant imposed KRW 235,40,060 on KRW 314,05,082 of the indemnity determined by the Supreme Court Decision on July 3, 2008 on KRW 30,000,000 from December 9, 2002 to 2,033, which is the due date; ② the imposition of late payment charges was revoked on the ground that the grounds that the grounds for calculating the late payment charges were not clearly stated by Seoul High Court Decision 2009Nu15601 Decided December 24, 2009; ③ the Defendant’s imposition of late payment charges on KRW 30,07,00,000, which was 205,000,000, which was 3,000,000,000,000,000,000,000,000,000,000,000,00.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, such judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to ex

2. Regarding ground of appeal No. 2

A. Whether an administrative act is a binding act or discretionary act cannot be uniformly defined. The determination shall be made by taking into account all the structure, form, and language of laws and regulations that form the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, and the individual nature and type of the pertinent act itself. Judicial review of the two dividedly is based on the following methods: (a) a court has drawn a certain conclusion through the interpretation and application of facts and relevant laws and regulations due to the bound nature of the former in the case of the former; and (b) a court has to determine the legitimacy of the judgment made by an administrative agency from its own perspective; (c) a court has to determine whether the pertinent act is a deviation or abuse of discretionary power without drawing a conclusion of the original judgment; and (d) a court has to determine whether there is deviation or abuse of discretionary power without drawing a conclusion of the administrative agency’s discretion (see Supreme Court Decision 9Du759, Feb. 9, 201).

B. Article 51(2) of the former State Property Act provides that "if the indemnity is not paid within the due date, arrears may be collected as prescribed by the Presidential Decree." However, Article 44(3) of the former Enforcement Decree of the State Property Act, which applies mutatis mutandis pursuant to Article 56(5) of the former Enforcement Decree, provides that "if the indemnity is not paid within the due date, the payment shall be notified with fixed arrears added thereto." The disposition imposing indemnity is an administrative act aimed at protecting and efficiently managing and disposing of State property, and the strictness of the administration of State property is necessary. In addition, this is an indive administrative act with sanctions following the delay in the obligation to pay indemnity, and the imposition of indemnity is naturally occurred after the due date for the payment of indemnity, the imposition of indemnity can not be arbitrarily determined. Since Articles 56(5) and 44(3) of the former Enforcement Decree of the State Property Act specify the rate of late payment based on the due date for the overdue period, there is no room for allowing the disposition authority to impose indemnity indemnity surcharges.

C. The court below erred in finding the disposition of this case as discretionary and thereby did not violate the principle of proportionality. However, it is just in its conclusion to reject the Plaintiff’s assertion that the disposition of this case violated the principle of proportionality. In so doing, it did not err by misapprehending the legal principles on the principle of proportionality, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)