Daeyang Industrial Co., Ltd. and three others (Law Firm Square, Attorneys Kim Dong-dong, Counsel for the plaintiff-appellant)

Korea

October 14, 2009

Seoul Central District Court Decision 2007Gahap15689 Decided January 9, 2009

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

A. The defendant:

(1) The amount of 5% per annum from January 1, 2007 to December 16, 2009, and 20% per annum from the following day to the date of full payment, shall be paid to the Plaintiff Daeyang Industry Co., Ltd., future Hannam Franb Co., Ltd., and Plaintiff 4 Co., Ltd., and the incorporated foundation of Plaintiff 7-1. The amount of 5% per annum from January 1, 2007 to December 16, 2009.

(2) From January 1, 2003 to December 16, 2009, the amount of KRW 559,61,950 from January 1, 2004 to KRW 881,117,930 from January 1, 2005 to KRW 1,060, KRW 370,60, KRW 6069,980 from January 1, 2006 to KRW 370, KRW 56,584 from January 1, 2007 to December 16, 200, and the amount of KRW 5% from the following day to December 200.

B. All of the plaintiffs' remaining claims are dismissed.

2. The total costs of the lawsuit shall be ten minutes, and one of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The Defendant paid 5% interest per annum from January 1, 2002 to Plaintiff Daeyang Industry Co., Ltd. (hereinafter “Plaintiff Daeyang Industry”), Plaintiff 4 Incorporated Foundation (hereinafter “Plaintiff Scholarship”), and Korea-Nam Franb Co., Ltd. (hereinafter “Seoul”) on the usage fees not paid in attached Form 7-1 to the Plaintiff, with 5% interest per annum from January 1, 2006 to the delivery date of the copy of the complaint of this case, and 20% interest per annum from the next day to the delivery date of the copy of the complaint of this case, and 3,46,014,744 won and 48,891,30 won from the next day to the 408,891,969,969, 950 won to the Plaintiff’s future 1, 2003 to the 160% interest per annum from 1, 2006 to the 1,965% interest per annum from the 160% interest per annum to 2, 1606.96.4, 296.6.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked and all of the plaintiffs' claims corresponding thereto shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows: ① 6 of the judgment of the court of first instance (attached Form 4. Details of the previous payment fees) shall be as follows: ① 6 of the judgment of the court of first instance (attached Table 4-1. The portion of the previous payment fees (the actual payment amount) shall be as follows; ② 10 of the number 13 shall be as follows: “The use fees shall be as shown in Attached Table 5-1., including property tax and comprehensive real estate holding tax, which are taxes related to the possession of real estate as taxes; ③ 11 of the number 11 shall be as follows; ③ “ordinary facts” of the first 2 of the judgment shall be as “ordinary facts”; ④ 2 of the judgment of the defendant following the third 3 of the judgment of the court of first instance shall be added; ⑤ 20 through 14 of the number 12.5) The portion of the previous payment fees shall be cited again by the judgment of the court of second instance other than the following 3.1 of the Civil Procedure Act.

2. Additional judgment;

The defendant filed a claim for the payment of usage fees every year from the time when the deceased non-party 1 first received the usage fees in 1996 to November 2005. The defendant did not withhold an objection to the payment of usage fees and issued a receipt and tax invoice to the defendant while receiving them without reservation. This shall be deemed to have been paid in full by evaluating it as a legitimate amount at the time when the deceased received usage fees from the defendant. Therefore, even if there is any unpaid usage fees exceeding the amount paid, the deceased shall waive the claim for the said unpaid usage fees, and therefore, the defendant's obligation to pay usage fees each year was completely extinguished.

The defendant's assertion in this part is without merit, since it is justified to affirm that the defendant's non-party 1 did not raise any objection whenever he receives the user fee paid by the defendant, or that the defendant expressed his intention not to dispute the amount of the user fee later, or that the part of the user fee exceeding the amount of the user fee should not be deemed to have been waived.

3. Parts to be used again.

C) Sub-decision

The legitimate usage fees of each land of this case are as stated in the details of the lawful total usage fees on attached Table 5-1. Among them, the amount that the Defendant is liable to pay to each of the plaintiffs as the usage fees for the portion of 2006. Of them are as stated in attached Table 6-1. The fact that the deceased or the plaintiffs received usage fees, such as the details of the usage fees for the previous payment on attached Table 4-1, from the defendant, is also the plaintiffs.

Therefore, the amount that the Defendant is liable to pay to the Plaintiffs as land usage fees shall be as stated in the column of the attached Form 7-1 (1) unpaid usage fees (1) which is the amount calculated by deducting the fixed-term usage fees from the lawful total usage fees, as stated in the column of the attached Table 7-1 (1) unpaid usage fees, which is the amount within the scope sought by the Plaintiff, and the land usage fees to be paid to the above Plaintiffs shall be the rent due to its nature. Thus, the payment period shall be the end of each year at the time of payment of land pursuant to Article 633 of the Civil Act (the Plaintiffs calculated the usage fees requested by the Defendant for appraisal by the Korea Appraisal Board as of January 1 of each year, and its payment period shall be determined as of January 1 of each year. According to each of the above evidence, it is difficult to view that the appraisal of each land of this case requested by the Defendant to the Korea Appraisal Board based on the settlement of this case was made as of January 1 of each year, 2005.

Therefore, the defendant is obligated to pay damages for delay at the rate of 5% per annum as stipulated by the Civil Act from January 1, 2007 to December 16, 2009, which is the date following the scheduled date of payment of land usage fees, to the plaintiff Yangyang industry, future South and North Korea, and the 20% interest rate of 10.5% interest per annum as stipulated by the Special Act on the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, to the 10.5% interest per annum as to the 20.5% interest per annum as to the 10.5% interest per annum as to the 20.6% interest per annum from the next day to the 10.5% interest per annum as to the 10.6% interest per annum as to the 20.5% interest per annum as to the 20.6% interest per annum as to the 16.5% interest per annum, 206% interest per annum as to the 20.5% interest per annum as to the 10.5% interest per annum.

4. Conclusion

Therefore, the plaintiffs' claims are justified within the above scope of recognition, and the remaining claims are dismissed in entirety as it is without merit. Since the judgment of the court of first instance which has concluded a different conclusion is unfair, it is so decided as per Disposition by accepting part of the defendant's appeal and changing the judgment of the court of first instance as above.

[Attachment]

Judge Lee Han-ju (Presiding Judge)

1) From the end of 2002 to the end of 2005 (Plaintiff 2): [Attachment 5-1, the amount indicated in the "(3) usage fee" column of the details of legitimate usage fee ] - [Attachment 4-1, each amount of the details of the usage fee for the previous payment] 2006 portion (Plaintiffs): [Attachment 6-1, the details of legitimate usage fee for each plaintiff 6-1, 2006] - [Attachment 4-1, the amount indicated in the "value-added tax" column excluding the details of the usage fee for the previous payment];