(영문) 대법원 2017.7.11.선고 2015다242375 판결

The same part of the judgment of the court of first instance among the judgment below shall be reversed, and the lawsuit shall be dismissed in this part.

The appeal is dismissed.

All costs of the lawsuit as to the dismissal of the appeal are assessed against the Plaintiff, and the costs of the appeal are assessed against the Defendant.

Reasons

1. The grounds of appeal are examined.

A. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court rejected the Defendant’s assertion that the Defendant’s obligation to pay the purchase price and the Plaintiff’s obligation to transfer ownership are concurrently performed, as the Defendant’s obligation to pay the purchase price is more advanced than the Plaintiff’s obligation to transfer ownership.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of Article 51(1) of the State Property Act and relevant contract

B. Regarding ground of appeal No. 2

The defendant asserts that the court below rejected the defendant's claim to purchase ground property on the premise that the defendant comprehensively succeeded to the duty to restore due to the termination of the lease agreement of this case by purchasing each of the buildings of this case from Egyptian Co., Ltd. However, the above argument by the defendant is ultimately erroneous in selecting evidence belonging to the court below's exclusive jurisdiction as a fact-finding court and finding facts, and thus, it cannot be deemed a legitimate

For the reasons indicated in its holding, the lower court: (a) premised on the Plaintiff’s duty to return unjust enrichment equivalent to the loan charges that the Defendant acquired by occupying and using each of the instant land from the date following the cancellation date of the instant sales contract; and (b) determined that it is reasonable to calculate the loan charges for each of the instant land in accordance with the State Property Act, as long as the lease price under the consultation of the Minister of Trade, Industry and Energy and the Minister of Strategy and Finance was not determined

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the calculation of loan charges

2. The decision shall be made ex officio;

ex officio, we examine the legitimacy of the claim for removal of building among the lawsuits of this case.

Article 74 of the State Property Act provides that "where a person occupies State property or constructs facilities thereon without justifiable grounds, he/she may remove each of the buildings of this case by means of vicarious administrative execution, and where the procedures for such vicarious administrative execution are recognized, it is not permitted to seek removal of each of the buildings of this case against the defendant by means of civil procedure (see, e.g., Supreme Court Decisions 2009Da1122, Jun. 11, 2009; 2014Da20693, Aug. 20, 2014). The plaintiff asserts that the defendant occupies each of the buildings of this case without any title due to the termination of the lease contract of this case and the cancellation of the sales contract of this case, the plaintiff can seek removal of each of the buildings of this case by vicarious administrative execution under Article 74 of the State Property Act. However, the plaintiff can not seek removal of each of the buildings of this case, which are general property owned by the defendant of this case.

Therefore, although the part of the lawsuit of this case should be dismissed as there is no benefit of protecting the rights, the court below made a decision on the merits. In this part of the judgment below, it erred by misapprehending the legal principles on the benefit of lawsuit, which affected the conclusion of the judgment, and thus, it cannot be maintained

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for removal of a building shall be reversed, and since it is sufficient for the Supreme Court to render a judgment, this part of the judgment of the court below shall be reversed, and the same part of the judgment of the court of first instance shall be revoked, and this part of the lawsuit shall be dismissed, and the appeal shall be dismissed. The costs of appeal as to the dismissal of the lawsuit and the dismissal of the appeal shall be borne by each losing party. It is so decided as per Disposition by the assent