(영문) 대법원 2020.7.9.선고 2020다219614 판결

The part of the judgment of the court below against the Defendant (Counterclaim Plaintiff) regarding the removal claim shall be reversed, and this part of the lawsuit shall be dismissed.

The remaining appeals are dismissed.

Of the total litigation costs, 20% of the total litigation costs shall be borne by the Plaintiff (Counterclaim Defendant), and 80% by the Defendant (Counterclaim Plaintiff) respectively.

Reasons

1. As to the grounds of appeal on the part concerning the claim for the delivery of land and the counterclaim in the principal lawsuit, the lower court, on the grounds as stated in its reasoning, determined that the instant loan agreement was terminated upon the expiration of the period, and the Defendant (hereinafter “Defendant”) did not have a legitimate right to occupy the instant land, and that the Defendant did not have a right to demand purchase under Article 40(3)18 (h) of the Enforcement Decree of the State Property Act with respect to the instant land, and that the right to demand the purchase of trees planted on the instant land was not recognized under Article 643 of the Civil Act. In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine or by failing to exhaust all necessary deliberations, violating the rules of evidence, or by misapprehending the legal principles, etc., which affected the conclusion of the judgment. 2. On the grounds of appeal, ex officio, the part concerning the claim for the removal of the remaining building (hereinafter

A. Article 74 of the State Property Act provides, “Where a person occupies State property or installs facilities thereon without justifiable grounds, the head of a central government agency, etc. may remove such facilities or take other necessary measures by applying mutatis mutandis the Administrative Vicarious Execution Act.” Thus, where the procedure for vicarious administrative execution is recognized, it is not allowed to seek removal of facilities by means of civil procedure (see, e.g., Supreme Court Decisions 2015Da242375, Jul. 11, 2017; 2019Da301340, Apr. 29, 2020).

B. While the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) asserts that the Defendant should remove the instant building on the instant land without any title, the Plaintiff, which is a State property, may remove the instant building constructed on the instant land by means of administrative vicarious execution under Article 74 of the State Property Act, and thus, it is reasonable to deem that the Plaintiff, which is a State property, could not seek removal by means of civil litigation. Nevertheless, the lower court determined that the instant building among the principal suit, was based on the premise that there was a benefit in the protection of rights in the part of the claim for removal of the instant building. In so determining, the lower court erred by misapprehending the legal doctrine on the benefit of lawsuit, thereby adversely affecting the conclusion

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the defendant regarding the removal claim is reversed. Since this part is sufficient to be tried in this court, this part of the judgment below is reversed, and this part of the judgment below is dismissed, and the remaining appeal is dismissed, and the total costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.