Plaintiff (Law Firm ridge, Attorneys Yoon Jung-tae et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Shin Young-chul et al., Counsel for the defendant-appellant)

November 9, 2012

Suwon District Court Decision 2010Gahap6878 Decided November 24, 2011

1. Of the judgment of the first instance, the part against the defendant ordering payment in excess of the following amount, is revoked, and the plaintiff's claim corresponding to that part is dismissed.

The defendant shall pay to the plaintiff 35,153,290 won with 5% interest per annum from July 1, 2010 to December 21, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. The plaintiff shall bear 2/3 of the total litigation costs, and the remainder shall be borne by the defendant.

1. Purport of claim

With respect to the Plaintiff KRW 151,186,200 and KRW 144,540,00 among them, the Defendant shall pay to the Plaintiff 5% per annum from October 8, 2009 to the service date of a duplicate of the complaint of this case from April 26, 2009 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. The defendant's land use, etc.

The reasoning of the court’s reasoning is as to this part of the judgment of the court of first instance. The purport is as follows. A. On September 2, 1989, the Plaintiff acquired the ownership of the Ham-dong Ham-dong (3 omitted) and 2,108.2 square meters (hereinafter “land number 3 omitted”) in the above land, and operates the parking lot from the above land. The Defendant acquired the ownership of the above Ham-dong (2 omitted) and 2,212.7 square meters (hereinafter “land number 2 omitted) in the above Ham-dong (hereinafter “number 2 omitted”) and the 6th above ground, and operated the hotel from around that time, since that time, the Plaintiff acquired the ownership of the above Ham-dong (2 omitted) and the 6th above ground, and operated the hotel as part of the attached drawings (hereinafter “land number 3 omitted), which is the Plaintiff’s ownership.

B. Since September 2006, the Plaintiff attempted to expand and install a parking lot in operation from “(number 3 omitted) land” to the instant part of land (hereinafter “instant construction”). The Defendant, which is anticipated to cause inconvenience to the use of a hotel, obstructed the instant construction by either removing concrete constructed by the Plaintiff or occupying the instant part of the land by using a vehicle. The Plaintiff filed an application for a provisional injunction against obstruction of construction with the Suwon District Court Decision 2009Kahap118, Jun. 26, 2009, and received a decision of acceptance on August 26, 2009.

C. On October 8, 2009, the Plaintiff and the Defendant concluded a lease agreement on the instant part of the land and set the rent as KRW 2,190,00 per month. On June 15, 2010, the Plaintiff sent a document verifying the content to the Defendant. The Plaintiff notified the Defendant that unjust enrichment equivalent to the rent for the period prior to the conclusion of the said lease agreement and the Defendant would be paid by June 30, 2010 as the amount of damages incurred by the Defendant’s obstruction of construction. The above content certification reached the Defendant around that time.

[Ground of recognition] The fact that there is no dispute, entry of Gap's 1 through 7 (including branch numbers, if any) and the purport of whole pleading

2. Determination as to the cause of action

A. Requests for restitution of unjust enrichment

1) The plaintiff's assertion

From March 29, 2004 to October 7, 2009, the Defendant used the instant portion of the land as a hotel entry to and from the hotel without any legal cause, and thus, the Plaintiff ought to return to the Plaintiff unjust enrichment of KRW 14,4540,00 (i.e., KRW 2190,00 per month x KRW 2190,00 per month x approximately 66 months from March 29, 2004 to October 7, 2009).

2) Determination

(A) Liability to return unjust enrichment

Comprehensively taking account of the above facts acknowledged, the defendant acquired the "land number 2 omitted)" from March 29, 2004 to October 7, 2009, which was the day before the conclusion of the lease agreement on the "the land portion of this case", shall use the land portion of this case as a passage route, thereby gaining profits from use, and thereby causing losses to the plaintiff equivalent to the same amount. Thus, barring any special circumstance, the defendant shall return to the plaintiff unjust enrichment equivalent to the rent for the above period.

(B) Scope of unjust enrichment

Furthermore, with respect to the amount of unjust enrichment to be returned, the amount of profit from possession and use of real estate would be equivalent to the rent of the real estate. However, in full view of the evidence Nos. 2 and No. 6, the purport of the entire pleadings is as follows: ① Nonparty 1 (the Nonparty of the judgment), Nonparty 2, and Nonparty 3, who owned the adjoining land part of this case, filed an application with the Suwon District Court for a provisional disposition prohibiting passage over surrounding land based on the right to passage, with the Plaintiff as the respondent, on December 29, 199 (No. 99Kahap152), ② the above applicant and the owner of the land adjoining the above part of this case including the Defendant, were to use the part of this case as the road, ③ Nonparty 1 (the Nonparty of the judgment), Nonparty 2, and Nonparty 3 were to be revoked on May 20, 2006 by Nonparty 4 and Nonparty 5 (the lower court’s provisional disposition revoking the above provisional disposition prohibiting passage over the road number of 15m20.

Therefore, the part of the land of this case shall be deemed to have been used as the "road" from December 29, 1999 when the application for provisional injunction against interference with passage based on the right to passage over surrounding land was accepted until December 17, 2007 when the above provisional injunction order was revoked. Therefore, the plaintiff who acquired the "(number 2 omitted) land" only on March 29, 2004 when the part of the land of this case was used as the passage of neighboring land owners, and during the period from March 29, 2004 to December 17, 2007, the plaintiff shall return to the plaintiff the amount of unjust enrichment equivalent to the rent under the premise that the part of this case is "road", and thereafter, during the period from October 7, 2009, the amount of unjust enrichment equivalent to the rent under the premise that the part of this case is "road lot" should be returned to the plaintiff.

If it is calculated according to the appraisal result of Nonparty 7 and the fact-finding result conducted by the above appraiser in the first instance trial, the amount equivalent to the rent for the part of the land of this case that the defendant must return to the plaintiff is KRW 3,623,290 [the plaintiff shall not accept the plaintiff's claim for return of unjust enrichment exceeding the above KRW 33,623,290,000 for the part of the land of this case from March 29, 2004 to October 7, 2009 (=2,190,000 won per month x 66 months). However, the fact that the plaintiff and the defendant decided that the rent for the part of the land of this case was KRW 2,190,000 per month on October 8, 2009 is insufficient to recognize that the rent for the previous period is the same, and there is no other evidence to acknowledge it.]

* Specific Calculation Details

○ From March 29, 2004 to December 17, 2007: 13,368,156 won (i.e., KRW 2,613,00 from March 29, 2004 to December 31, 2004 + KRW 7,224,000 from January 1, 2005 to December 31, 2006 + ③ From January 1, 2007 to December 17, 2007)

○ From December 18, 2007 to October 7, 2009: 20,255,134 won (i.e., KRW 427,134 from December 18, 2007 to December 31, 2007 + KRW 11,316,000 from January 1, 2008 to December 31, 2008 + ③ KRW 8,512,000 from January 1, 200 to October 7, 2009)

Total ○: 33,623,290 won

B. Claim for damages

1) The plaintiff's assertion

Since the defendant interfered with the construction of this case without any justifiable reason, the plaintiff should pay 6,646,200 won as compensation for damages incurred by the plaintiff as the construction cost of this case.

2) Determination

When the Plaintiff intended to implement the instant construction in order to prevent the passage of the Defendant, etc. on the instant land and use it as a parking lot site, the fact that the Defendant obstructed this.

In addition, according to the evidence evidence Nos. 7, 8, and 9, the plaintiff paid KRW 4,080,00 as the construction cost of this case to the △△△ Environment Construction Co., Ltd. on September 12, 2006 and November 5, 2007, ② KRW 1,036,200 as the Korea Cadastral Corporation on April 23, 2007, ③ KRW 7, 2008 and May 15, 2009; and ④ KRW 1,500,000 as the aggregate to the ○○○ Public Corporation on April 17, 2009.

However, until December 17, 2007, since the defendant's right of passage over the part of the land of this case is recognized by the above provisional disposition of prohibition of passage obstruction until December 17, 2007, it cannot be deemed that the defendant's act of preventing the previous construction is illegal.

Therefore, the Defendant is liable only to compensate the Plaintiff for the damages suffered by the Plaintiff due to the obstruction of the construction that took place after December 17, 2007, for which the decision on the provisional disposition on the prohibition of passage obstruction was revoked, and the amount is KRW 1,530,00 (=the above KRW 1,50,000 + ④ 30,000).

C. Sub-decision

As seen earlier, the Plaintiff urged the Defendant to pay the aforementioned unjust enrichment and damages until June 30, 2010. Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff damages at a rate of 35,153,290 won (= KRW 33,623,290 + KRW 1,530,000 +) and damages for delay at a rate of 5% per annum as prescribed by the Civil Act from July 1, 2010 until December 21, 2012, which is the date the judgment of the competent court rendered that the Defendant’s obligation to pay to the Plaintiff damages for delay by the rate of 20% per annum as prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

3. Judgment on the defendant's assertion

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance, except for the deletion of the part of Chapters 5 through 13, 6, and 2, of the fifth to the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the above recognition scope, and the remaining claims shall be dismissed, and the judgment of the court of first instance shall be inappropriate with a different conclusion. Therefore, the part against the defendant exceeding the above recognition scope among the judgment of the court of first instance by admitting part of the defendant's appeal shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed

[Attachment]

The fixed number of judges Lee Sung-chul (Presiding Judge)