「STATE PROPERTY ACT」 defines 'a person who has used, benefited from, or occupied any State property without obtaining permission for use or signing a loan contract)' as 'a person occupying any State property without permission' . The state shall collect, from 'a person occupying any state property without permission' , an indemnity equivalent to 120 percent of the usage fees or rent of such State property. Collecting indemnity needs not any intention or negligence. Collecting indemnity is regardless of knowing the occupation without any legitimate Titles or not. When a person occupying any State property without permission fails to pay the indemnity by its due date, the state may collect the indemnity by applying mutatis mutandis the National TAx Collection Act' s provisions for disposition on arrears.
On the other hand if the state occupied the civilian property without any legitimate Titles, a person can file a lawsuit claiming restitution for unjust enrichment under the Civil Act. It needs more requirements relatively than the indemnity which is imposed by the state. Moreover the state has the possibility of the acquisition by prescription on the civil property. So in the case of cross occupation between the state and Civil with the same boundary of the estate, it' s possible the state has the ownership of the civil estate while civilian should pay the indemnity. This result is against the notion of legal justice.
Considering the purpose of the indemnity clause in the 「STATE PROPERTY ACT」 , the need to maintain the indemnity system has been greatly reduced for the following reason. First, the technology of system that manages and conserves the national owned land had a rapid development and the need to maintain this Act plummeted due to completely well-equipped modifications on registration system. Second , the KAMCO(Korea Asset Management Corporation) to whom the management of state properties was delegated choose the way of the unjust enrichment of private law rather than indemnity system. Third, The spirit of the Constitution requires that the state and ordinary citizens should be treated equally in the exercise and protection of property rights. Fourth, there is no indemnity system in foreign countries like Germany, Japan, United States. They are solving the problem of state property in accordance with the general provisions of civil law. Finally, the current indemnity system is rather hindering the efficient utilization of state-owned property because the indemnity should be levied even for the cross occupation between national institutions or between the state and civilian. For these aforementioned reasons, the indemnity clause revision should be considered actively.