[1] The legal nature of lending of state-owned miscellaneous property(=a contract under private law) and the legal nature of the notice of payment of rent(=a claim for performance under private law

[2] The nature of the overdue loan agreement and the requirements for the occurrence of the obligation to pay overdue charges as stipulated in the national miscellaneous property loan agreement

[3] In a case where the amount of loan charges for State-owned miscellaneous property notified by an administrative agency exceeds the amount of justifiable loan charges calculated under the loan agreement and the relevant statutes, whether there is a delay liability for the portion of the loan charges for which payment was not made (affirmative), and in a case where the loan charges for which payment was notified considerably excessive than the reasonable amount, whether it is valid as a legitimate performance

[4] The case holding that the loan charges for state-owned miscellaneous property notified in the notice of payment have no effect as a legitimate claim for performance where it is about 55% of the reasonable amount or excessive amount

[5] The scope of application mutatis mutandis to a loan agreement for state-owned miscellaneous property where the loan fee is not paid within a designated period is agreed to pay additional dues and increased additional dues by applying mutatis mutandis the provisions of Articles 21 and 22 of the National Tax Collection Act

[1] Loaning of state-owned miscellaneous property by an agency entrusted with the authority to manage and dispose of state-owned miscellaneous property under the provisions of Articles 31 and 32(3) of the State Property Act and Article 75(1) of the Forestry Act is a contract under the private law conducted by the State at an equal location with the other party as the private economic entity. An administrative agency’s unilateral act as the subject of public authority may not be deemed an administrative disposition regardless of the other party’s intent. The notice of payment of rent for state-owned miscellaneous property constitutes a claim for performance

[2] Since the late payment charge agreement stipulated in the contract for the loan of state-owned miscellaneous property is deemed to be an estimate for a kind of delay compensation, the late payment charge shall be liable only when the delay of performance occurs.

[3] Even if the amount of loan charges for State-owned miscellaneous property notified by an administrative agency exceeds the amount of justifiable loan charges calculated under the provisions of the relevant Acts and subordinate statutes stipulated in the relevant contract, the payment notice cannot be deemed unlawful merely on the ground that such reason alone cannot be deemed as a request for performance. Thus, the other party to the loan contract may not refuse to pay the reasonable amount of the loan charges notified in the payment notice for this reason. Thus, when the period specified in the payment notice has passed without paying the loan charges, the party to the loan contract cannot be held liable for delay within the reasonable amount among the loan charges notified in the payment notice, and even if the amount of the loan charges was reduced to a legitimate amount, the validity of the delayed payment of the loan charges already occurred to the legitimate amount shall not be affected. However, if the loan charges notified in the payment notice is considerably excessive than the amount of the loan charges calculated in accordance with the loan contract or the relevant Acts and subordinate statutes stipulated in the relevant contract, the payment notice cannot be deemed a legitimate performance request, and thus,

[4] The case holding that the loan charges for state-owned miscellaneous property notified in the notice of payment have no effect as a legitimate claim for performance where it is about 55% of the reasonable amount or excessive amount

[5] Even though the provisions of Articles 21 and 22 of the National Tax Collection Act apply mutatis mutandis to a loan agreement for state-owned miscellaneous property, if the loan is not paid within the designated period, the tax imposition disposition is an administrative disposition, and the loan agreement is a contract under private law, and the loan agreement is a disciplinary measure in the case of a loan agreement, and the loan agreement is a contract for delayed payment. Therefore, in the case of a loan agreement, the nature of the nature of the loan agreement must be limited, so the loan agreement can only be applied mutatis mutandis to a legitimate request for performance (including a case where a legitimate request may be deemed a request even if a request is made). In addition, even if the loan can be collected by applying mutatis mutandis the provisions of the National Tax Collection Act on disposition on default pursuant to Articles 38 and 25 of the State Property Act, it does not change the nature of the loan agreement, so it cannot be said that the additional dues are imposed as in any case or in any case.

[1] Article 2 of the Administrative Litigation Act, Articles 31 and 32(3) of the State Property Act, Article 75(1) of the Forestry Act / [2] Articles 387 and 398 of the Civil Act, Articles 31 and 32(3) of the State Property Act, Article 75(1) of the Forestry Act / [3] Article 387 of the Civil Act, Articles 31 and 32(3) of the State Property Act, Article 75(1) of the Forestry Act / [4] Article 387 of the Civil Act, Articles 31 and 32(3) of the State Property Act, Article 75(1) of the Forestry Act / [5] Articles 105, 387 and 398 of the Civil Act, Articles 31 and 32(3) of the State Property Act, Article 75(1) of the Forestry Act

[1] Supreme Court Decision 83Nu239 delivered on August 23, 1983 (Gong1983, 143), Supreme Court Decision 91Nu1612 delivered on December 7, 1993 (Gong1994Sang, 368), Supreme Court Decision 94Nu5281 delivered on May 12, 1995 (Gong195Sang, 2129) / [2] Supreme Court Decision 97Da5541 delivered on July 25, 1997 (Gong197Ha, 2687)

Han-il Leisure Co., Ltd. (Attorney Kim Shin-hun, Counsel for defendant-appellee)

Korea

Seoul District Court Decision 99Na37657 delivered on October 5, 1999

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

We examine the grounds of appeal.

1. Facts recognized by the court below

A. On September 27, 1993, the Plaintiff entered into a contract with the Defendant for the extension of the loan agreement for five years from August 17, 1998 to December 31, 1998 by changing the title holder of each of the instant real estate, which was a state-owned forest that was used by the Defendant for the golf course business from around 198 to the Plaintiff. Since the above loan period expired, the Plaintiff entered into a contract with the Defendant for the extension of the loan agreement for five years for each of the instant real estate.

B. In entering into the above loan agreements and extension contracts, the loan charges shall be annual, but the amount shall be determined by Article 62 of the Enforcement Decree of the Forestry Act, and the payment of the loan charges shall be made within the designated period according to the payment notice issued by the administrative agency of the defendant, and if the loan charges are not paid within the specified period, the additional charges and increased additional charges shall be paid in accordance with Articles 21 and 22 of the National Tax Collection Act.

C. Accordingly, under Article 62(3) of the Enforcement Decree of the Forestry Act, the Director of the Korea Forest Service under the Defendant’s control issued a notice of the amount assessed at the time of loan on the basis of the state of land before development by an appraisal corporation under the Public Notice of Values and Appraisal of Lands, etc. Act (No. 1); as to the undeveloped land, the date of notification to the Plaintiff on February 26, 1998; the due date of payment as of March 25, 1998, the amount of KRW 355,848,350 as the rent in 197; and the amount of KRW 237,232,230 as the rent in January 8, 198 to August 26, 1998.

D. Accordingly, the plaintiff filed an objection against the head of the Suwon State Forest Administration on or around March 11, 1998 against the plaintiff's assertion that the above loan charges are excessive, and on or around March 20, 1998 against the Korea Forest Service affiliated with the defendant, the objection was filed. The head of the Suwon State Forest Administration notified the head of the Suwon State Forest Administration of the imposition of additional dues and aggravated additional dues under the National Tax Collection Act if he/she did not accept the plaintiff's objection and the request for postponement of payment. However, the Minister of the Korea Forest Administration notified the head of the Suwon State Forest Administration of the acceptance of the plaintiff's objection and the calculation of appropriate loan charges. The head of the Suwon State Forest Administration notified the head of the Suwon State Forest Administration of the original state Forest Administration of the rent developed at his/her own expense, according to the previous standard, the previous officially announced land price applied to non-developed land at his/her own expense was calculated based on the actual development condition, and instead, determined the loan charges at the new price as at the time of the loan before its development by 10.

E. After that, on June 15, 1998, the Director of the Suwon National Forest Administration imposed the Plaintiff the amount of rent by March 25, 1998, which was the initial time limit for payment of rent, as stipulated in the above loan agreement and extension agreement, the amount equivalent to the additional dues and increased additional dues under Articles 21 and 22 of the National Tax Collection Act, as stipulated in the above loan agreement and extension agreement, and notified the Plaintiff of KRW 14,650,00 for rent in 197, and KRW 9,497,100 for rent in 197 for rent from January 198 to August 18, 198, and the Plaintiff paid each of the above amounts on August 18, 1998.

2. The judgment of the court below

(1) As seen earlier, the period during which the instant loan charges were due according to the Defendant’s notice of payment was set and notified for payment. However, the Defendant’s notice of payment of loan charges issued on May 11, 1998 was erroneous in the previous notice of payment of loan charges on February 26, 1998. It does not have the effect of setting new loan charges specifically after the entire cancellation of the initial notice of payment, but it merely has the effect of cancelling and changing the original notice of payment. Even if the initial notice of payment and the revised notice of payment differ in the calculation method of rent charges, it cannot be deemed as a new act independent of the initial notice of payment and the revised notice of payment (the initial notice of payment was not a method of calculating rent entirely different from the initial notice of payment, and the initial notice of payment was not a change in the method of calculating rent charges that was not developed at the Plaintiff’s expense, and it is difficult to deem that such change was unreasonable or unreasonable in light of the relevant laws and regulations 98, supra. 198.

(2) In addition, in light of the developments leading up to the failure of the Plaintiff to pay the rent by the due date, the head of the Suwon State Forest Administration and the Administrator of the Korea Forest Service regarding the Plaintiff’s objection, etc., the imposition of late payment charge against the Plaintiff may not be deemed as violating the principle of trust and good faith, or it is difficult to pay the rent within the due date due to unavoidable reasons under Article 62(1)5

(3) Therefore, the Defendant’s imposition of the instant arrears is justifiable, and the Plaintiff’s claim of this case is without merit.

3. The judgment of this Court

(1) The act of lending a state-owned miscellaneous property by an agency entrusted with the authority to manage the state-owned miscellaneous property pursuant to the provisions of Articles 31 and 32(3) of the State Property Act and Article 75(1) of the Forestry Act is a contract under the private law conducted by the State on an equal level with the other party as the private economic entity. An administrative agency’s unilateral act as the subject of public authority may not be deemed an administrative disposition regardless of the other party’s intent. The notice of payment of rent for state-owned miscellaneous property constitutes a claim for performance under the private law, and shall not be deemed an administrative disposition (see, e.g., Supreme Court Decisions 83Nu239, Aug. 23, 1983; 91Nu1612, Dec. 7, 1993; 94Nu5281, May 12, 1995).

According to the facts acknowledged by the court below, the lending of each real estate between the plaintiff and the defendant of this case is clear that the lending of state-owned properties is a lending contract for state-owned properties (Article 61 (2) of the former Enforcement Decree of the Forestry Act before amended by Presidential Decree No. 15517 of Nov. 29, 1997 can be limited to state-owned properties classified as miscellaneous properties under Article 4 (4) of the State Property Act, and Article 61 (2) of the current Enforcement Decree of the Forestry Act also provides for the same purport). Thus, the lending of each real estate of this case between the plaintiff and the defendant constitutes a contract under private law and the defendant'

As can be seen, when the instant loan agreement is a contract under private law and the instant loan agreement is deemed to be a claim for performance under private law, the agreement on late payment stipulated in the above loan agreement shall be deemed to be an estimate for compensation for delay, so the overdue charge shall be liable for payment only when there is a liability for delay of payment (see Supreme Court Decision 97Da5541 delivered on July 25, 1997). As recognized by the court below, if the payment deadline for the instant loan is set by the Defendant’s notice for payment issued by the administrative agency and the rent is not paid within that deadline, if the Defendant’s affiliated administrative agency provides that the overdue charge shall be paid pursuant to the provisions of Articles 21 and 22 of the National Tax Collection Act, the payment notice, namely, the demand for performance, and further, the payment of overdue charge shall be liable upon the lapse of the payment deadline set in the notice for payment under the above loan agreement.

In such a case, even if the amount of loan charges notified by the Defendant’s administrative agency exceeds the amount of justifiable loan charges calculated pursuant to the provisions of the relevant Acts and subordinate statutes stipulated in the contract, the payment notice cannot be deemed unlawful merely on the ground that such reason alone cannot be deemed as a request for performance, and even the Plaintiff cannot refuse to pay the reasonable amount of the loan charges notified on the ground of this reason. Thus, the Plaintiff cannot be held liable for delay within the reasonable amount of the loan charges notified in the payment notice, when the period specified in the payment notice has elapsed without paying the loan charges, and even if the amount of the loan was reduced to the legitimate amount, the effect of delay of the loan charges already incurred on the legitimate amount shall be deemed as having no influence.

(2) However, in relation to the lending of state forests, the calculation of rent should be objectively calculated in accordance with the loan agreement, and if the loan agreement requires the calculation of rent under Article 62(1) of the Enforcement Decree of the Forestry Act, the calculation of rent not in accordance with the method prescribed in the above provision is not justifiable (see Supreme Court Decision 96Da6127, Nov. 8, 1996). In particular, in a case where the rent notified by notice is considerably excessive than the amount to be calculated properly due to the calculation of the loan agreement or without complying with the relevant Acts and subordinate statutes stipulated in the above contract, the payment notice cannot be deemed a legitimate performance request, and thus, it cannot be deemed as a request for performance, which is a requirement for the payment of late payment charges.

According to the facts acknowledged by the court below, the defendant issued a payment notice of KRW 355,848,350 as the loan fee in 197 with a payment notice of February 26, 1998, and KRW 237,232,230 as the loan fee in January through August 1998, but the payment notice of KRW 229,768,650 as the loan fee in 197 with a payment notice of May 11, 1998, and KRW 153,179,10 as the loan fee from January 1 through 8, 1998 with the payment notice of KRW 153,179,10 as the loan fee in 197 with the payment notice of interest of KRW 35,848,350 as the loan fee in 197 with the payment notice of interest of KRW 55,50 as the property loan fee initially determined by the plaintiff's objection, and thus, the payment notice of late 296.

(3) Even though Article 21 and Article 22 of the National Tax Collection Act applies mutatis mutandis to the loan agreement in this case, if the loan fee is not paid within the designated period, the tax imposition disposition is an administrative disposition, and the loan agreement in this case is a contract under private law, and even if additional dues are imposed, the loan agreement in this case is a disciplinary measure, and in the case of the loan agreement in this case, the contract in this case shall be deemed as a contract for delay compensation. Therefore, in the case of the loan agreement in this case, the nature of the nature of the contract in this case must be applied mutatis mutandis. Therefore, in the case of a legitimate claim for performance (including a case where a legitimate claim can be deemed as a legitimate claim even if a claim is excessive), only the time of delay and the rate of additional dues shall be applied mutatis mutandis. In addition, even if the loan fee can be collected by applying mutatis mutandis the provisions on the disposition for arrears in the National Tax Collection Act pursuant to Articles 38 and 25 of the State Property Act, it does not change the nature of the loan agreement in

In addition, if the above statement in the loan agreement of this case appears to be a case where the parties have made a special agreement to make the same additional dues as the tax imposition disposition of this case, it is unclear that the above applicable provisions alone are the purport thereof. Thus, whether there was an understanding to such purport at the time of the loan agreement of this case, or whether the actual contents of the loan agreement of forest land are natural and natural between the parties.

(4) Therefore, the lower court determined that the Defendant is liable to pay late payment charges under the instant loan agreement against the Plaintiff on the ground that the previous imposition remains effective in accordance with the legal principles of reduction or correction in general imposition even if the Defendant considered the notice of the payment of rent for each of the instant real estate, which is a State-owned miscellaneous property, as an administrative disposition, and thereafter reduced it thereafter, is clear that it erred by misapprehending the legal doctrine on the nature of the notice of payment of State-owned miscellaneous property loan and the meaning of the agreement on late payment

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)