Cases where there is an error of law by misunderstanding legal principles in calculating damages

Even if a public official removes the building owned by the plaintiff without undergoing the procedure under Article 2 of the Administrative Vicarious Execution Act, if the period of permission for occupation and use of the river site on which the building is located expires and there was an order to remove it through lawful procedures, the amount of damages suffered by the plaintiff due to the defendant's illegal acts cannot be deemed to be the whole amount equivalent to the market price of the building.

Article 2 of the Administrative Vicarious Execution Act, Article 3 of the Administrative Vicarious Execution Act, Article 2 of the State Compensation Act, Article 763 of the Civil Act, Article 393 of the Civil Act

Plaintiff 1 and two others (Attorney Lee Ba-ho, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City (Attorney Han-soo, Counsel for defendant-appellee)

Seoul High Court Decision 67Na2270 delivered on April 19, 1968

The original judgment is reversed, and the case is remanded to the Seoul High Court.

The first ground for appeal by the defendant's attorney is examined.

According to the reasoning of the judgment by the court below, since the public officials of the court below removed each building owned by the plaintiffs without undergoing the procedure under Article 2 of the Administrative Vicarious Execution Act, the defendant has the obligation to compensate for the damages suffered by the plaintiff, etc. under the State Compensation Act, and as to the damages suffered by the plaintiff, etc. from the removal of each building without permission, the court below calculated it at the market price at the time of the removal of each building.

However, according to the records, each building of this case was constructed with permission for the occupation and use of the river site on the Cheongcheon River which is a national river, but before the permission period expires, and at the time of the removal, it can be seen that the situation was in the state without permission above the river site and the situation was in the order to remove the building due to the Cheongcheon Uniform Construction, executed by the defendant, due to the removal of each building, without undergoing a series of legitimate procedures. Thus, the damages suffered by the plaintiffs due to the defendant's tort cannot be deemed as the whole amount at the market price of each building, unless there are special circumstances. Thus, the judgment of the court below is erroneous in the calculation of damages in violation of legal principles.

Judgment on the second ground for the same reason

In light of the records, the purport of pleading by the original defendant and the contents of testimony by the witness of the non-party who did not dismiss in particular the original judgment, each building owned by the plaintiffs was changed without legitimate title on the river site which is a state-owned river. It can be seen that the defendant issued a warrant on June 25, 1965 and executed the removal by vicarious execution, and that the defendant did not issue an administrative order on the removal before the issuance of the order, and that there was no legitimate reason to believe that the removal of the building was a legitimate administrative order under the Administrative Vicarious Execution Act, and that the defendant did not have any legal opinion on the removal of the building before the date of pleading, and that there was no legitimate reason to view that the removal was a removal of the building under the Administrative Vicarious Execution Act, and that the defendant did not have any legal opinion on the removal of the building before the date of pleading.

Therefore, the appeal is with merit, and it is so decided as per Disposition by the assent of all participating judges.

Justices of the Supreme Court (Presiding Justice) Mag-Jak (Presiding Justice)