국유재산법상 변상금 부과·징수권과 민사상 부당이득반환청구권의 관계

The state may impose indemnity as prescribed by the State Property Act against a person who occupies/benefits from state property without permission(hereinafter “illegal occupant”). When an illegal occupant fails to pay the indemnity by its respective due date, the state may collect the indemnity by applying mutatis mutandis the National Tax Collection Act's provisions for disposition on arrears. However, a number of lawsuits claiming restitution for unjust enrichment under the Civil Act against an illegal occupant(especially who occupies/benefits from general property) were filed. And the decisions of the courts below did not coincide in opinions. Whether did the suits lack any interest of protecting a right and thus were dismissed? If the suits were lawful, then what was the scope of the enrichment to be returned? And the statute of limitations for restitution for unjust enrichment was interrupted by imposing indemnity? The supreme court ruled en banc that “the state may file a suit claiming restitution for unjust enrichment against an illegal occupant, independent from exercising the right to impose/collect indemnity”(supreme court en banc decision 2011da76402 decided July 16, 2014). After that, for similar reasoning the supreme court decided that imposing indemnity could not interrupt the statute of limitations for restitution for unjust enrichment. The above issue is related with the legal nature of the right to impose/collect indemnity and to claim restitution for unjust enrichment, the establishment elements for each right, the purpose of the indemnity system and the return of unjust enrichment system, and the range of exercising each right. This study is focused on solving each subject by examining the indemnity system of S.Korea, foreign systems against an illegal occupant, the above supreme court's decision's reasoning and an existing confrontation of opinions in the courts below.