2013Gudan 19922 Revocation of Disposition of Imposing an indemnity

A

The Minister of Culture, Sports and Tourism

July 9, 2014

August 13, 2014

1. The Defendant’s disposition of imposing indemnity of KRW 96,655,400, which the Plaintiff rendered on July 22, 2013 exceeds KRW 40,179,70, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s disposition of imposing indemnity of KRW 96,655,400, which the Plaintiff rendered on July 22, 2013 exceeds KRW 3,774,950, shall be revoked.

1. Details of the disposition;

On July 22, 2013, the Defendant imposed the Plaintiff KRW 96,655,400 (hereinafter referred to as the “instant disposition”) on the ground that the Plaintiff occupied 293m of the 1,854m of the 16,249m of the Hanam-si river B (hereinafter referred to as “the 1st land”) from December 1, 2005 to December 31, 2012, 794m of the C river 20,992m (hereinafter referred to as “the 2nd land”) and D river 93m of the 96,65,400m of the 3rd land of this case without permission (hereinafter referred to as “the 3rd land”).

[Ground of recognition] Unsatisfy, Eul 1, 22. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The Plaintiff did not have occupied each of the instant land, and even if he did so, the area and the period of possession, which served as the basis of the instant disposition, are different from the fact, and the Defendant’s right to impose indemnity expires by prescription. Therefore, the instant disposition is unlawful.

(b) Fact of recognition;

(1) The Plaintiff, along with wife E, operated a restaurant in a part of each land of this case and in a building and facility located in the Japanese belt, and cultivated crops.

(2) On October 22, 2003, the Defendant imposed KRW 4,301 of the instant land No. 1 for the period from April 30, 1996 to December 31, 2002 on the Plaintiff, and KRW 45,068,860 of the instant land among the instant land No. 2, on the ground that the Plaintiff occupied 3,311 meters without permission. 789 of the instant land No. 2, and 304 meters of the instant land No. 3 without permission.

(3) Accordingly, on November 7, 2003, the plaintiff sought revocation of the disposition imposing indemnity (this court)

Although 2003 Guhap3711 filed a lawsuit, this court rendered a judgment dismissing the claim on May 14, 2004. The judgment became final and conclusive on October 28, 2005 (Seoul High Court 2004Nu1057). (4) The Defendant imposed the Plaintiff on December 1, 2005, the Plaintiff for the period from January 1, 2003 to July 31, 2004, KRW 4,301 square meters out of the land No. 1, 789 meters out of the land No. 2, 304 out of the land No. 3 of the instant case, 304 without permission, for the period from August 1, 2004 to 205, 206; and for the period from November 30, 2004, KRW 53 meters out of the land of this case; and KRW 203634m, 206, 208.

(5) Accordingly, on March 30, 2006, the plaintiff sought revocation of the disposition imposing indemnity (this court)

206Guhap12685). During the period from January 1, 2003 to November 30, 2005, the Plaintiff occupied only 288m of the instant land among the instant land No. 1, 214m of the instant land, and 28m of the instant land among the instant third land for a period from November 30, 205, this court rendered a judgment revoking the disposition of imposing indemnity equivalent to the portion exceeding the recognized occupation area on September 15, 2006. The judgment became final and conclusive on September 27, 2007 (Seoul High Court 2006Nu2494 and Supreme Court 2007Du14183). (6) On August 27, 2010, the Republic of Korea claimed delivery of the portion of the instant land among the instant land to the Plaintiff on August 27, 2010 (Seoul High Court 203m of the instant land No. 12514m of the instant land, 2014101m of the instant land.

(7) On October 9, 2012, the Defendant delivered to the Seoul Olympic Sports Promotion Foundation a notice of bankruptcy of 1,112 meters out of the land No. 1 of this case.

[Grounds for recognition] Gap's +1 to 4-2, Eul's 1 to 5, 9, 16 through 18, 21, and the purport of the whole argument is to determine.

(1) Whether the Plaintiff is an occupant

According to the above, the plaintiff's possession of part of each of the lands of this case by himself or together with the plaintiff's wife, and in light of the contents of Eul's evidence Nos. 9, 16 through 18, and 21, the above facts of possession cannot be denied merely by the descriptions of evidence No. 3-1 to No. 4-2.

(2) According to the period of possession and the area of possession as seen earlier, barring any special circumstance, the Plaintiff occupied 288m from December 1, 2005, to February 10, 201, 201, 214m of land No. 214m of land of this case, and 28m of land of this case from among the land No. 2 of this case, and 3m of land of this case. From February 11, 2011 to October 9, 2012, the survey and appraisal date of 2010No35410m of land of this case, 1,854m of land of this case among the land No. 2 of this case, 794m of land of this case, 293m of land of this case, and 3m of land of this case from among the land No. 11,112m of land of this case, the Plaintiff calculated each of the land of this case from October 21, 2012 to 37m of this case.

Meanwhile, the defendant asserts that the plaintiff occupied the total of 2,941 square meters of land of this case from December 1, 2005 to February 10, 201, but there is no evidence to acknowledge it.

(3) Whether the right to impose indemnity has expired by prescription

The reason for the existence of the prescription system lies in respecting the permanent state of fact and not protecting the potential person above the right, and in particular, the latter is meaningful in the extinctive prescription. As such, if the right holder expresses that he/she is not a locked person on the right by asserting a judicial right, the interruption of prescription becomes a ground for interrupting prescription. As such, a judicial claim is not limited to a request for performance or confirmation of the right itself, which is the subject of extinctive prescription

Based on the foregoing, even in a case where a claim is asserted in the form of a lawsuit, if it can be deemed that the said claim is not a locked person on the right, it shall be deemed included therein. It is unnecessary to consider a judicial claim, which is the cause of interruption of prescription, in accordance with the scope of res judicata effect (see Supreme Court Decision 2011Da19737, Jul. 14, 201).

The case returned to the instant case and the extinctive prescription of the right to impose indemnity is five years (Article 96(1) of the National Finance Act), and there may be room to view that the Defendant’s right to impose indemnity for the period prior to July 21, 2008 expired by prescription. However, the foregoing extinctive prescription period is interrupted upon a judicial claim (Article 96(3) of the National Finance Act and Articles 168 and 170 of the Civil Act). On the other hand, the Republic of Korea filed a lawsuit against the Plaintiff on August 27, 2010 against the Plaintiff seeking the transfer of the occupied portion of each of the instant land and received a favorable judgment. As seen earlier, the State’s right to impose indemnity against the Plaintiff and the right to claim for transfer of land are the fundamental legal relationship that both the Plaintiff’s right to impose indemnity against

On the basis of this, the Republic of Korea can be deemed to have expressed that it is not a locked person on the right by exercising its right in response to unauthorized occupation and use of state-owned land through the above land delivery lawsuit. Accordingly, it is reasonable that the extinctive prescription of the right to impose indemnity against the Plaintiff has been interrupted.

(4) Conclusion

Therefore, the portion exceeding 40,179,700 won out of the instant disposition is unlawful, and thus revoked.

3. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no ground.

Judges Han Jin-con