(영문) 부산지방법원 2010.11.5.선고 2010구합1959 판결

1. The Defendant’s disposition of imposing or collecting KRW 28,413,030 on the Plaintiff on March 4, 2010, exceeding KRW 15,949,810, out of the imposition or collection disposition of KRW 28,413,030, shall be revoked. 2. Of the litigation costs, 60% shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The Defendant’s disposition of imposition of KRW 25,410,040 (including value-added tax of KRW 2,310,000) and additional dues of KRW 3,002,90 on March 4, 2010 (including value-added tax of KRW 28,413,030) shall be revoked.

Reasons

1. Details of the disposition;

A. The purpose of the Plaintiff is to contribute to the development of the railroad industry and the national economy by enhancing the expertise and efficiency of the railroad operation business on January 1, 2005.

B. Busan Jung-gu A railroad site 4,775.5m (hereinafter referred to as "1m") in Busan Jung-gu, Busan Jung-gu, 58,30m (hereinafter referred to as "the second land"), C railway site 94.30m20m(hereinafter referred to as "the third land"), D railway site 1,465.20m(hereinafter referred to as "the fourth land"), E railway site 148.60m(hereinafter referred to as "5m") in E railway site 148.60m(hereinafter referred to as "the land in this case"), and the land in this case is owned by the State. At the same time as of January 1, 2005, the Plaintiff received the above 2,027m2,000 square meters of land, such as the F Station station of small cargo security guards, F Station station of waste collection, and 463m263m2 and 5m20m2 of the above land (hereinafter referred to as "facilities in this case").

C. Of the instant lands, on the ground of 2,420 meters other than the above part occupied by the Plaintiff in the land No. 1, the KRNA used the said building upon obtaining approval from the KRNA. In addition, there is a closed Busan G building on the ground surface other than the above part possessed by the Plaintiff in the land No. 4, and since February 2004, the Plaintiff used the said building as a rehabilitation facility for the protection of the disabled and rehabilitation facilities, the Plaintiff did not legally obtain permission for use of the said building.

D. Meanwhile, the Defendant was carrying out the management and disposal of the above land in accordance with the provisions on delegation and entrustment of the State Property Act and the administrative authority. On March 24, 2008, the Defendant issued a disposition of imposing indemnity amounting to KRW 461,921,40 on the Plaintiff on the ground that the Plaintiff occupied and used the entire land and the 674.63m of the land from January 1, 2005 to June 30, 207 without obtaining permission for the Plaintiff’s loan, use, and profit-making.

On April 30, 2009, the plaintiff appealed and filed a lawsuit seeking the revocation of the disposition of imposition of indemnity by Busan District Court 2008Guhap2621, and the decision was rendered in favor of the plaintiff on the ground that the plaintiff had a legitimate title to occupy the land on April 30, 2009. Although the defendant appealed as Busan High Court 2009-3064, the judgment dismissing the appeal on October 14, 2009 became final and conclusive around that time.

E. On December 24, 2009, the Plaintiff filed an application with the Defendant for permission to gratuitously use and benefit from land No. 4,447.1 square meters of land No. 1, 2, 3, and 979.2 meters of land No. 4, and 5 as the applied area. On December 30, 2009, the Defendant issued a written public notice to the Defendant to request whether the Plaintiff wishes to use the instant land for free on the ground that the Plaintiff did not comply with the provision that the Plaintiff would continue to use the conditions for permission to use State property at least 30 days prior to the end of the period of use. The Plaintiff filed an application for permission to gratuitously use and benefit from State property again on December 31, 2009, and obtained permission to use State property on January 5, 2010 as follows.

Permitted Property: 4,447.1m, 2, 3 land, 979.2m among the land in 4, and all the land in 5

- Purpose: Site for I place of business, CY equipment site, access road, etc.

- Period of use: January 1, 2010 - December 31, 2010

- User Fees: 135,92,270 won

- Time limit for the payment of user fees: January 19, 2010

F. As the Plaintiff did not pay the above payment deadline, the Defendant notified the Plaintiff of the payment of the usage fee by the new payment deadline, adding the late payment charge on January 21, 2010, and KRW 894,170, and notified the Plaintiff of the payment of the usage fee by the new payment deadline. As the Plaintiff did not pay the usage fee again by the payment deadline, the Defendant notified the Plaintiff of the payment of the usage fee by adding the late payment charge 1,98

G. On February 23, 2010, the Plaintiff filed an application with the Minister of Land, Transport and Maritime Affairs for permission for the use of the instant land for free use pursuant to Article 14(1) of the Korea Railroad Corporation Act, along with the “responding to inquiries as to whether the Plaintiff may obtain permission for the use of state-owned property free of use.” On March 4, 2010, the Defendant made a permission for the use of and benefit from the use of state-owned property as follows (i.e., the imposition or collection of rent and additional dues for the period from January 1, 2010 to March 3, 2010).

- Permitted Property: 4,447.1m2, 2, 3 land among the land in Category 1, 979.2m2, and 5 land;

- Purpose: Site for I place of business, CY equipment site, access road, etc.

-Period of use: Permission for free use from January 1, 2010 to March 3, 2010: 203.4: -.203.12.31, 2010; usage fees and late fees: 26,103,030 won (excluding value-added tax).

H. On March 8, 2010, the Defendant sent a payment notice to the Plaintiff regarding KRW 23,100,040 and value-added tax 2,310,000 and late payment charges (additional charges) for the period from January 1, 2010 to March 3, 2010 by mail, and the above payment notice reached the Plaintiff around that time.

[Ground of Recognition] In without dispute, Gap evidence 1, Gap evidence 2-1, 2, 3, Gap evidence 4-1, 2, 5-5, Gap evidence 6-1, 2, Gap evidence 7, Gap evidence 8-1, 2, Eul evidence 1-1, 1-5, 2-2, and Eul evidence 1-2 through 6, the fact inquiry results for Eul's incorporated association, the purport of the whole pleadings, and the purport of the arguments

2. The legality of the instant disposition

A. The plaintiff's assertion

1) The instant disposition that imposed usage fees for administrative property at the same time without prior permission for use, despite the premise of the existence of the disposition of permission for use of administrative property, is unlawful.

2) The Defendant permitted the Plaintiff to use the instant land in 2008 and 2009, and even during the process of consultation on the permission for gratuitous use and profit-making in 2010, the Defendant’s employees, J, K, L, and M made it clear that the instant land is subject to the Plaintiff’s permission for gratuitous use and profit-making, but the instant disposition otherwise contradicts the principle of trust protection or the principle of administrative self-government organization.

3) Even if the Plaintiff is liable to pay the usage fee, Article 73(1) of the State Property Act provides that the late payment charge may be collected if the usage fee of the State property is not paid by the due date. Thus, the late payment charge of the instant disposition may be imposed at the time when the usage fee was imposed and the payment was not made within the due date, but the late payment charge of the instant disposition was issued for the period prior to the arrival of the disposition imposing the usage fee, and thus is unlawful. (2) Since the late payment charge of the instant disposition was issued for the period prior to the arrival of the disposition imposing the usage fee, the late payment charge of the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether a disposition of permission to use the instant land exists

According to the above facts, the defendant's property permitted on January 5, 2010 is recognized as "the whole land 4,447.1m, 2, 3m, 979.2m, and 5m, among the land 4, 2010, the whole land 4, 979.2m, and 5m, among the land 5m, the purpose of its use is "place of business, such as the CY device site and access road," "the period of use is 135,92,270 on December 1, 2010," and "the usage fee is 135,92,270 won" and the use of the land 4,447.1m, 2, 3m, 979m, and 479m, and the land 5m," the plaintiff's assertion that there was no prior imposition of usage fee for the administrative property as the premise for the disposition of usage

2) Whether it violates the principle of trust protection

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, the first administrative agency must issue an official opinion that is the subject of trust to an individual, and the second administrative agency should not be attributable to the individual when the expression of opinion is justified and trusted; third, the individual should have trusted that opinion statement; third, the administrative agency should have conducted any act against the above opinion statement; fourth, the administrative agency's disposition against the above opinion statement should result in infringing on the interests of the individual who trusted that opinion statement; fourth, the administrative agency's disposition is unlawful as against the principle of the protection of trust; and since the testimony of public health team and witness N alone is insufficient to recognize that the defendant issued a public opinion that he would permit the free use of the land of this case to the plaintiff; and there is no other evidence to acknowledge this portion of the plaintiff's assertion.

3) Whether the Defendant violated the principle of self-detention or not, in both years 2008 and 2009, permitted the Plaintiff to use the land free of use, and thus, administrative practices related thereto cannot be deemed to have been formed. As long as the Defendant allowed the Plaintiff to use the instant land for consideration from 2010 on the grounds that there was no recognition by the Minister of Land, Transport and Maritime Affairs under Article 14 of the Korea Railroad Corporation Act, the instant disposition cannot be deemed to be unfair treatment without reasonable grounds, and it does not go against the principle of self-detention. Accordingly, the Plaintiff

4) Whether the calculation of the area is unlawful

Of the land Nos. 1 and 4, the actual possession of the Plaintiff is limited to 2,027.1 square meters among the land No. 1 and 674.63 square meters among the land No. 4. As seen earlier. In full view of the following circumstances: (a) details of the imposition of indemnity on the Plaintiff on March 24, 2008; (b) the progress of the lawsuit against the Defendant; (c) the developments leading up to the Plaintiff’s possession of part of the land No. 4; and (d) the relationship between the Plaintiff and the Defendant’s status, the Plaintiff considered the Plaintiff to be permitted to use and benefit from State property while filing an application for permission for use of State property; and (c) the Defendant was also aware of such circumstances; (d) thus, it is reasonable to calculate the land No. 1 and 4 of this case’s land usage fee, excluding the portion

Ultimately, due user fees to be paid by the Plaintiff to the Defendant for the use of the instant land from January 1, 2010 to March 3, 2010, from usage fees (including value-added tax) imposed by the Defendant to the Plaintiff, usage fees of 9,834,80 won for the portion of 2,420 square meters out of the first land that is not actually used by the Plaintiff (=land rental fees of 8,940,730 square meters + 435,00 won (use fees of 2,420.0 square meters) x 435,00 won (use rates) x 62/365 (use rates) x 365 (use rates) x 10 won; hereinafter the same shall apply) ＋ value-added tax x 894,070 won (including value-added tax x 8,940,730 x 10%) and value-added tax x 30537,7539/7.70

5) Whether the disposition of late payment penalty (additional charges) is unlawful or not, on January 5, 2010, the Defendant notified the Plaintiff of the payment of KRW 135,92,270 to the Plaintiff by January 19, 2010 when granting permission for use of the instant land. As seen earlier, the Plaintiff did not pay the fees by January 19, 2010, which is the initial payment deadline. As such, the Defendant collected late payment penalty pursuant to Article 73 of the State Property Act and Article 72 of the Enforcement Decree of the State Property Act for 43 days from January 20, 2010, which is the expiration date of the permission for the use of late payment period from January 20, 2010, which is the expiration date of the permission for the use of late payment period from March 3, 2010, on the grounds that the late payment penalty cannot be collected.

Therefore, when calculating a reasonable late payment charge, 1,208,280 won (23,100,040 won - 8,940,730 won - 757,920 won) x 43/62 x 130/100).

[Defendant asserts that the late payment charge may be collected from January 1, 2010 on the ground that Article 30 (1) of the Enforcement Decree of the State Property Act provides that "the user fee shall be paid in advance." However, the payment deadline for the user fee under Article 30 (2) of the Enforcement Decree of the State Property Act shall be within 60 days from the date when the permission for use was granted, but it shall be before commencing the use and profit-making: Provided, That if it is deemed difficult for the management agency to pay the user fee by the due date for unavoidable reasons, the payment deadline may be separately set, and unless the defendant separately set the payment deadline, the late payment charge may not be collected before the due date reaches the due date, and the above argument by the defendant is groundless.

D. Sub-determination

Therefore, the part exceeding 15,949,810 won (14,741,530 + 1,208,280 won) of the instant disposition should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.