[2] Whether Article 78 (4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects can be applied to the determination of the supply price of the apartment where the operator of the public project is specially supplied with the apartment constructed and sold by the private construction company as part of the relocation measures (negative)

[2] In a case where the operator of a public project provided an opportunity for the special supply of, or the special supply of, apartment houses built and sold by a private construction company at the active request of a person subject to the relocation measures, instead of creating and supplying a new new housing site by the relocation measures for those who lose their base of livelihood as a result of the incorporation into a road zone for a public project, and accordingly, the person subject to the relocation measures applied for the special supply of the above apartment houses at the same sale price as the general sale price, the special supply of such apartment houses is deemed as a substitute for the relocation measures stipulated in Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, Etc. for Public Works Projects; the project operator cannot exercise any influence in determining the sale price of privately constructed company; the site for privately constructed housing supplied to the person subject to the relocation measures cannot be deemed as falling under the “new housing site” stipulated in Article 78(4) of the same Act; the project operator has discretion in the selection of a person subject to the special supply, and there is no room for the aforementioned Act and regulations on the special supply price of apartment.

2. The appeal costs are assessed against the plaintiffs.

The following facts are not disputed between the parties, or are acknowledged in full view of the purport of the whole pleadings in each entry in Gap evidence 1 through Gap evidence 23, Eul evidence 4, 5, 7, 8, 11, Eul evidence 6, 9, 10, and 10.

A. Status of the parties

The plaintiffs are residents of the building located in the 3-dong and new Heungdong-dong, Sungnam-si, and Defendant 1 Co., Ltd. (hereinafter "Defendant Co., Ltd.") is a company that constructs and sells ○○○○ apartment building (hereinafter "the apartment of this case") constructed on the block 15-1 block in the development district of the said housing site development district in Sungnam-si, Sungnam-si, and Defendant Sungnam-si (hereinafter "Defendant Si") is a local government that implemented the extension work to the park (hereinafter "the public works of this case") in the above unit where the plaintiffs reside.

B. Execution of the instant public project and public notification of relocation measures for the Defendant

As of February 6, 2006, the Defendant-Si decided to implement the instant public project with a view to expanding the park area from the park tunnel located in Jung-gu, Jung-gu, Seoul to the 1.6 km of the same Gu to the 8th line from the 6th parallel to the 1.6 km of the same Gu. On March 21, 2006, as the above public project zone is incorporated into the said public project zone, the Plaintiffs who lost their means of livelihood due to the expropriation of their housing or land, etc., should apply for the relocation measures under Article 70 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter “Public Works Act”), Article 40 of the Enforcement Decree of the said Act, and Article 19 of the Rules on the Supply of Housing, Etc. to the 30th anniversary of the relocation measures, and Article 206 of the said Rules regarding the relocation measures to the 30th anniversary of the housing site development project or the housing site development plan within the said apartment zone.

C. Special supply application of the plaintiffs and conclusion of sales contract

The plaintiffs were determined as the subject of the relocation measures under the public notice of the above relocation measures and applied for special supply of the above right to occupy the apartment unit, and between May 10, 2006 and May 15, 2006, between the defendant company and the purchaser company, one of the apartment units constructed and sold by the above defendant company (hereinafter referred to as the "each apartment unit of this case") in the Sungnam school Housing Site Development Zone, entered into an apartment sale contract with each apartment unit as stated in the item column of the attached Table 9 of the purchase price in the attached Table 9, and then the purchase price in the attached Table 9 of the purchase price was paid as the purchase price in accordance with the above sales contract. On the other hand, the defendant market, unlike the plaintiffs, did not apply for special supply, paid five million won per household or ten million won per household settlement money to the 15 persons subject to relocation measures who want to pay the resettlement funds.

(d) Details of special supply and the actual status of sale in general for apartments of a high-rise city;

From August 2005, the residents of this case, where residential buildings, etc. were removed due to the public works of this case including the plaintiffs, applied for collective demonstration against the defendant Si from around August 2005, and special right to sell apartment buildings in the area of a shopping district in which many market profits are expected to be expected due to relocation measures. Ultimately, the defendant Si took a method of arranging special right to sell the apartment buildings of this case, instead of creating and supplying a new housing site, and thereafter, the defendant city took a method of arranging special right to sell the apartment buildings of this case, and thereafter, the general sale rate of small and medium-sized apartment units constructed in the shopping district was extremely high. In particular, in the case of the apartment buildings of this case supplied by the defendant company, 228,194 subscribers were killed as to the general sale rate of 1,040, and the winner came to enjoy a premium of at least KRW 100 million.

2. The parties' assertion

The plaintiffs claim that the defendant company is obligated to pay the same amount of money as the sale price in accordance with the relevant local conditions, such as roads, water supply facilities, drainage facilities, and other public facilities in the relocation settlement area, as the special supply of housing by the defendant company to the defendant company, who is the project operator, and the defendant company bears the expenses required for the basic living facilities in accordance with Article 78 (4) of the Public Works Act, but the contract for each of the sale in this case was entered into with the plaintiffs as the sale price in this case. In violation of Article 78 (4) of the Public Works Act, the part of the sale price in this case exceeding the amount stated in the separate calculation sheet 8 (8) of the sale price in this case is invalid in violation of Article 78 (4) of the above Public Works Act, which is a mandatory provision. Therefore, the defendant company is obligated to return each amount mentioned in the separate calculation sheet, which is part of the excess amount, to the plaintiffs, and it is not acknowledged as the duty to pay the above money to the defendant company as unjust enrichment.

On the other hand, the primary defendant company is not an executor under the Public Works Act, and the primary defendant defendant company is not able to respond to the plaintiffs' claims. The primary defendant defendant company argues that ① the special supply of housing under the Housing Act and the payment of resettlement funds or resettlement funds under the Public Works Act are in substitution of each other. Thus, the application of Article 74 (4) of the Public Works Act is excluded when the special supply of housing under the Housing Act is selected, and ② even if not, the plaintiffs applied for the special supply of this case at their own option and obtained much more economic benefits than the choice of resettlement funds, making the claim of this case constitutes abuse of rights contrary to the principle of good faith, and thus, it cannot comply with the plaintiffs' claims.

3. Judgment on the issue

A. As to the claim against the defendant company (whether or not to bear costs based on the relocation measures);

On the other hand, the plaintiffs sought the return of unjust enrichment to the defendant company based on the Public Works Act, but the subject who is obligated to establish and implement the relocation measures under Article 78 of the Public Works Act is the project operator. The defendant company is not the operator of the public works project of this case but the defendant company entered into each sales contract of this case with the plaintiffs upon request from the defendant city for special supply of housing to the plaintiffs who are the objects of relocation measures, and as seen later, the sales contract of this case is not null and void for the same reason. Thus, the plaintiffs' assertion on this part is without

B. As to the claim against the defendant

(1) The question is raised

Article 78 (1) of the Public Works Act provides that "a project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for those who lose their base of livelihood due to the implementation of public works," and Article 78 (4) of the same Act provides that "the details of relocation measures shall include basic living facilities according to the relevant local conditions, such as roads, water supply facilities, drainage facilities, and other public facilities, in respect of resettlement land, and the cost necessary for the relocation measures shall be borne by the project operator: Provided, That if a project operator who is not an administrative agency establishes and implements relocation measures, local governments may subsidize part of the cost of relocation measures for the relocation of the housing site or the construction and supply of the housing on the ground of the relocation plan, such as roads, water supply and drainage facilities, etc. for the relocation of the housing site and the cost of installation of the housing shall be borne by the project operator, and shall not be subject to relocation measures for the relocation of the housing site and construction of the housing site and construction of the housing on the ground under the proviso to Article 20 (1) of the Housing Site Development Promotion Act.

In this regard, the key issue of this case is whether the preliminary defendant, as the project implementer of this case's public project, is only the possession price of the housing site and the cost of the construction of the housing site and the cost of the construction of the housing site and the cost of the construction of the above ground for the supply of new housing site, instead of creating and supplying a new housing site by the relocation measures against the plaintiffs who lost their living base due to the incorporation of the housing site or the land, etc. into the road zone for the above construction project, the plaintiffs provided the plaintiffs an opportunity to receive special supply of the apartment of this case from the primary defendant who sold the apartment of this case, or the cost of the special supply of the apartment of this case, even in a case where the plaintiffs applied for the special supply of the apartment of this case, the project implementer can only bear the cost of the building site and the cost of the construction

(2) Determination:

6. According to Article 40(2) of the Enforcement Decree of the Housing Act, if a project operator supplies housing units to a person subject to relocation measures under the Housing Act, such housing units shall be deemed to have been established and implemented. The special supply of the housing units shall be deemed to have the nature of relocation measures prescribed in Article 78(1) of the Public Works Act (see Supreme Court Decision 2006Du8495, Nov. 29, 2007). (2) unlike the case where a project operator constructs housing units or supplies housing units to a person subject to relocation, it shall not be able to cover any loss incurred by the construction of housing units to the person subject to relocation measures for the purpose of providing new housing units to a person subject to relocation measures for the purpose of offering new housing units to a person subject to relocation measures for the purpose of offering new housing units to the person subject to relocation measures for the purpose of offering new housing units to the person subject to relocation measures for the purpose of offering new housing units to the person subject to relocation measures for the purpose of offering new housing units. (3) It shall not be deemed to fall under Article 78(4) of the Act.

Therefore, the plaintiffs' assertion based on the premise that the defendant-si, the project implementer, should bear the cost necessary for the construction of basic living facilities cannot be accepted without further determination.

3. Conclusion

Therefore, the plaintiffs' primary claim against the defendant company and the conjunctive claim against the defendant company shall be dismissed as it is without merit. Since the judgment of the court of first instance that shares the same conclusion is legitimate, the plaintiff's appeal is dismissed and it is so decided as per Disposition.

[Separate Paper] Calculation Table: (Omission)

Judges Hah Jin-hun (Presiding Judge)