December 18, 2018

A. The defendant

1) On June 25, 2013, the procedure for the registration of ownership transfer from the Plaintiff on each real estate listed in the list of the real estate annexed to attached Table 1 was taken over on the ground of gratuitous reversion;

2) For the Plaintiff KRW 959,283,983 and KRW 579,968,206 among them, the Plaintiff shall pay 5% per annum from October 8, 2016 to January 22, 2019, and 15% per annum from January 15, 2018 to January 22, 2019, and from the following day to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1-A-2 of this Article may be provisionally executed.

1. Purport of claim

(a) Request for taking over the procedure for transfer of ownership;

B. Main Claim

It is the same as the disposition (the plaintiff changed this part of the claim in this court).

(c) Preliminary Claim

The defendant will take over the registration procedure for transfer of ownership from the plaintiff on November 4, 2013 with respect to each real estate listed in the list of real estate in attached Form 1.

B. Requests for restitution of unjust enrichment

With respect to the Plaintiff KRW 959,283,983 and KRW 579,968,206 among them, the Defendant paid 5% per annum from May 31, 2016 to November 13, 2018, 15% per annum from the following day to the day of service of a copy of the application for modification of the purport of the claim and the cause of the claim, and KRW 379,315,77 per annum from the day following the day of service of a copy of the application for modification of the claim and the cause of the claim, to the day of complete payment (the Plaintiff extended this part of this Court).

A. Status, etc. of parties

1) The Plaintiff is a government-invested corporation established under the Korea Land and Housing Corporation Act, a housing site development project, and a sugar suspension area (hereinafter referred to as “pathing suspension area”) for the purpose of promoting the efficient utilization of land resources by acquiring, managing, developing, and supplying land, and contributing to the development of sound national economy by promoting comprehensive utilization and development of land. The Defendant is a government-invested corporation established under the Korea Land and Housing Corporation Act, and a housing site development project operator of the housing site development project, and the Defendant is a local government having jurisdiction over the relevant housing site development project site development

2) The above distribution prevention zone and the sugar suspension zone are adjacent to each other, and the two business districts were originally planned to be “Asan New City”, and there was a need to implement the housing site development project by phase because the business area reaches 2,1320,000 square meters. Accordingly, on January 5, 2004, the housing site development plan for the distribution prevention zone was first approved on January 5, 2004, and thereafter the housing site development plan was approved on December 2, 2009 for the first-stage area (for the second-stage area of sugar suspension zone, the housing site development plan was nonexistent).

(b) Plans, etc. for installing automatic waste collection facilities;

1) In relation to housing site development projects, the Defendant requested the Plaintiff to install automatic waste collection facilities on May 22, 2007, and sent a plan to install automatic waste collection facilities on May 31, 2007.

2) On September 10, 2007, the Plaintiff decided to install automatic waste collection facilities in distribution prevention districts and sugar suspension districts by holding a business promotion committee.

3) Thereafter, on August 28, 2008, the Plaintiff entered into a contract for construction works that install automatic waste collection facilities between Tae Young Construction Co., Ltd. and four companies.

4) Meanwhile, the Ministry of Land, Transport and Maritime Affairs approved an implementation plan for housing site development projects on December 2009 with regard to the installation of four waste disposal facilities in a distribution prevention district and a sugar suspension district, and the site where one of the above waste disposal facilities is to be installed is each land listed in attached Table 1 paragraph (1) of the list of real estate located in one-level district of sugar suspension district.

(c) Progress of consultations on whether to install automatic waste collection facilities, modification of plans, etc.;

1) On April 15, 2010, the Plaintiff requested the Defendant to have an opinion on the deletion of the part of installation of automatic collection facilities in the plan for the housing site development project of hot spring suspension district on the grounds of the lack of guidelines for the improvement, operation, maintenance, management, management, and management of the relevant legal system, the occurrence of efficiency problems and management expenses, the occurrence of local government due to the replacement of facilities, the mitigation of the Seoul Metropolitan Area regulation, and the unfavorable conditions of the housing site development project of hot spring suspension district, such as housing site development project. Accordingly, on May 10, 2010, the Defendant expressed his opinion that on May 10, 2010, two automatic collection facilities located in the first-stage district of hot spring suspension district located in the Plaintiff as the automatic collection facilities of hot spring suspension district are located in the hot spring suspension district, and that the installation of automatic collection facilities in the second-stage district

2) After that, on May 31, 2010, the Plaintiff requested Chungcheongnam-do Governor to delete the part regarding the installation of automatic waste collection facilities from the housing site development project plan for the hot spring site development project on the grounds of the reduction of the volume of waste collection, the increase in the development cost, the occurrence of civil petitions, delay in transfer of facilities, etc. On March 29, 2011, the Plaintiff requested consultation on the settlement timing of the amount to be paid for the charges for automatic waste collection facilities installed at the exhaust prevention equipment and the hot spring stop site on March 29, 201, and at the same time requested consultation on the settlement timing of the amount to be paid for the automatic waste collection facilities installed at the one-stage district of the hot spring stop site without installing the automatic waste collection facilities in consideration of high-efficiency costs, civil petitions, excessive maintenance costs, etc. Accordingly, on April 1, 2011, the Defendant stated that “The settlement timing of charges is reasonable after the final completion of the housing site development project for the hot spring stop site development project, and whether the automatic collection facilities are installed

3) On the other hand, on July 27, 2012, the Defendant requested the Plaintiff to temporarily suspend installation of a distribution prevention district and a hot spring suspension district automatic collection facilities on the ground that there was an assembly for installation and opposition of neighboring residents. At that time, the Ministry of Land, Transport and Maritime Affairs established two waste disposal facilities on the one-time hot spring suspension district including each land listed in attached Table 1 paragraph (1) of the list of real estate in attached Table 1, and the Ministry of Land, Transport and Maritime Affairs changed the implementation plan for the housing site development

4) After that, facilities listed in Paragraph (2) of the attached Table 1, which are automatic waste collection facilities, were installed on the ground specified in Paragraph (1) of the attached Table 1, and the inspection of completion was completed on June 25, 2013 (hereinafter “instant facilities” in combination of the above land and facilities constituting the instant automatic waste collection facilities). The instant facilities include general waste compression machines and food waste separation equipment. The instant general waste compression equipment is a system which combines containers connected with continuous waste discharged from the lower court’s separation period with 11kW, and the said general waste compressing is a system which separates them into food wastes transferred to a collection center and foreign materials exceeding a certain standard.

5) Meanwhile, on November 4, 2013, the Ministry of Land, Infrastructure and Transport publicly announced that two-stage housing site development projects were completed.

D. Progress of consultation on transfer and takeover of the instant facilities

1) On April 12, 2013, the Plaintiff requested the Defendant to conduct a joint inspection for the completion of the instant facility. Accordingly, on May 27, 2013, the Defendant conducted a joint inspection for the transfer of the instant facility, and on June 3, 2013, consulted with the Plaintiff on the goods, etc. necessary for the operation after the transfer and takeover. On June 24, 2013, the Plaintiff requested the Defendant to cooperate for the transfer and takeover.

2) However, on August 5, 2013, the Defendant requested the Plaintiff to bear part of the cost of maintaining and managing the instant facilities, and the Plaintiff rejected such request on August 14, 2013. On September 24, 2013, the Defendant requested the same purport at the transfer and takeover meeting held on September 24, 2013. The Plaintiff rejected the request again.

3) From February 5, 2014, the Plaintiff requested the Defendant to transfer the instant facilities as soon as possible, and requested the Defendant to reply to the transfer schedule on January 9, 2015. Accordingly, the Defendant sent to the Plaintiff on January 14, 2015, stating that “if the plan or problem to acquire the instant facilities occurs during the period of September 2015, the schedule may be modified.”

4) Thereafter, on October 6, 2015, the Defendant expressed to the Plaintiff the opinion that “the Plaintiff shall cooperate with the Plaintiff to transfer and take over the tests conducted by the residents, who are the owners of the instant facilities after the approval was granted.”

E. Current status of maintenance and management of the instant facilities

On the other hand, the Plaintiff entered into a construction contract with Tae Young Construction Co., Ltd. and three companies on the construction period for the maintenance and management of the instant facilities from July 26, 2013 to January 31, 2014, setting the contract amount as KRW 121,262,786, respectively. Each of the above companies completed the completion inspection on the said construction around February 6, 2014. In addition, on November 10, 2015, the Plaintiff maintained and managed the instant facilities through the said company from February 1, 2014 through the said company, by entering into a management service contract with the Vietnam Preferred Co., Ltd. to entrust the maintenance and management of the instant facilities.

[Ground of recognition] The fact that there is no dispute, Gap's entries, Gap's 2 through 5, 7 through 11, 15 through 18, 20 through 29, 31, 34, 47, 54 through 57, 65 through 68, 70, and Eul's 4 (including branch numbers if there are any abnormal numbers; hereinafter the same shall apply) and the purport of the whole pleadings and arguments

2. Summary of the parties' arguments

A. The plaintiff

1) Since the instant facility is a public facility, the completion inspection of the instant facility was completed on June 25, 2013 (main claim) or on November 4, 2013 (Preliminary Claim), which was completed and published on November 4, 2013, Article 25(1) of the Housing Site Development Promotion Act and Articles 62(1) and 65(2) and (6) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”).

2) Even if the instant facilities are not public facilities, the Plaintiff and the Defendant agreed to take over the instant facilities from the Plaintiff, and thus, the Defendant is obligated to take over the instant facilities according to the above agreement, and even if there was no such agreement, the Plaintiff and the Defendant erred as to whether the instant facilities are subject to gratuitous reversion. Therefore, the contract should be interpreted as supplementary to the agreement to gratuitously revert the instant facilities to the Defendant in accordance with the good faith principle.

3) Ultimately, the ownership of the instant facility belongs to the Defendant, or the Defendant is obligated to take over its ownership, and the Defendant is obligated to bear the expenses for the maintenance and management of the instant facility. However, the Defendant refused a transfer request and disbursed KRW 959,283,983 for the maintenance and management expenses of the said facility from July 26, 2013 to the date of July 26, 2013. The Defendant, without any legal cause, obtained profits equivalent to the expenses for the maintenance and management of the said facility and thereby, sustained damages equivalent to the same amount

4) Therefore, the Defendant is obligated to take over the procedure for the registration of ownership transfer for the instant facilities from the Plaintiff on June 25, 2013 or for gratuitous reversion (preliminary claim) on November 4, 2013, and to pay the Plaintiff unjust enrichment amounting to KRW 959,283,983, and damages for delay.

B. Defendant

1) Public facilities subject to gratuitous reversion pursuant to the Housing Site Development Promotion Act are limited to public facilities under the National Land Planning and Utilization Act. The instant facilities are not public facilities under the National Land Planning and Utilization Act, and even if the infrastructure under the National Land Planning and Utilization Act is not public facilities subject to gratuitous reversion, they do not constitute infrastructure under the National Land Planning and

2) The instant facilities were not included in the initial plan for the housing site development project of the exhaust prevention area. The Plaintiff voluntarily expanded the waste collection facilities to prevent the distribution of the facilities, and even if the Plaintiff failed to undergo the normal test operation procedure due to the occupants’ opposition, the construction procedure of the instant facilities was reduced unfairly. Therefore, it cannot be deemed that the Plaintiff and the Defendant agreed to acquire the instant facilities.

3) The instant facilities have not been completely operated until now, and the Defendant concluded a separate service contract from September 25, 2008, which was the occupancy date of the distribution prevention district, to the present date and treated domestic wastes at the Defendant’s expense. As such, the Defendant was unable to comply with the Plaintiff’s claim for return of unjust enrichment.

3. Judgment on the claim for acceptance of the transfer registration procedure of ownership

A. Determination as to whether the instant facilities have reverted gratuitously to the Defendant as public facilities

1) Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

2) Determination

A) Article 25(1) of the Housing Site Development Promotion Act provides that “where an implementer installs new public facilities (excluding facilities prescribed by Presidential Decree, such as parking lots and playgrounds) or installs facilities replacing existing public facilities by implementing a taxi development project, Articles 65 and 9 of the National Land Planning and Utilization Act shall apply mutatis mutandis to the reversion of such public facilities.” Article 65(1) of the National Land Planning and Utilization Act provides that “Where a person who has obtained permission for development acts is an administrative agency, where a person who has obtained such permission installs new public facilities or installs new public facilities replacing existing public facilities, notwithstanding the State Property Act and the Public Property and Commodity Management Act, the newly installed public facilities shall gratuitously revert to the management agency which will manage such facilities, and the existing public facilities shall gratuitously revert to the person who has obtained such permission for development.” Article 99 of the same Act provides that “Where public facilities are installed by an urban/Gun planning facility project or public facilities replacing existing public facilities, Article 65 shall apply mutatis mutandis to the ownership of the land newly constructed by the implementer of the housing site development project at the same time as completion inspection and the new public facilities shall revert to the State or local government.

B) With respect to the instant case, the Housing Site Development Promotion Act does not have a separate definition on public facilities. Meanwhile, Article 2 subparag. 13 of the National Land Planning and Utilization Act provides that public facilities mean roads, parks, railroads, tap water, and other public facilities prescribed by Presidential Decree. Article 4 subparag. 1 of the Enforcement Decree of the National Land Planning and Utilization Act provides that “harbors, airports, canals, squares, green areas, public vacant land, utility tunnels, rivers, storage reservoirs, fire prevention facilities, waterproof facilities, waterproof facilities, erosion control facilities, tide control facilities, tide control facilities, tide control facilities, sewerage systems, sewerage systems, etc.” Article 4 subparag. 2 of the Enforcement Decree of the National Land Planning and Utilization Act provides that parking lots, playgrounds, reservoirs, crematoriums, cemeteries, cemeteries, and charnel facilities installed by administrative agencies as public facilities.

However, Article 25(1) of the Housing Site Development Promotion Act only applies mutatis mutandis to the ownership of public facilities (such as parking lots and playgrounds, Article 25(1) of the Housing Site Development Promotion Act shall apply mutatis mutandis to the ownership of public facilities by the implementer through the implementation of a taxi development project, and without applying mutatis mutandis the aforementioned definition provision, Article 2 Subparag. 2 defines “infrastructure prescribed by Article 2 Subparag. 6 of the National Land Planning and Utilization Act and land for installing facilities prescribed by Presidential Decree” as “public facilities site”; and Article 2 Subparag. 2 of the Enforcement Decree of the Housing Development Promotion Act, which defines “facilities prescribed by Presidential Decree” as “the scope of public facilities”; and it appears that this is based on the premise that the above “public facilities site” is to be installed as public facilities. Accordingly, it is reasonable to deem that public facilities subject to gratuitous reversion according to the Housing Site Development Promotion Act include “infrastructure” under the National Land Planning Act.

Meanwhile, Article 2 subparag. 6 (g) of the National Land Planning and Utilization Act and Article 2 (1) subparag. 7 of the Enforcement Decree of the same Act define “waste disposal facilities (including incidental facilities and convenience facilities necessary for the display of functions and use of the facilities in question)” as one of infrastructure. Article 2 subparag. 8 of the Wastes Control Act defines “waste disposal facilities” as “facilities for interim disposal of wastes, terminal disposal facilities, and recycling facilities prescribed by Presidential Decree” respectively. Article 5 subparag. 3 of the former Enforcement Decree of the Wastes Control Act (amended by Presidential Decree No. 28583, Mar. 27, 2018) defines “waste disposal facilities” under Article 2 subparag. 8 of the former Enforcement Decree of the Wastes Control Act as “facilities for interim disposal facilities, terminal disposal facilities, and recycling facilities.” In full view of each of the above provisions, it constitutes “facilities for compression of general wastes included in the instant facilities” under Article 1-1(b) of the former Enforcement Decree of the Wastes Control Act as “facilities for Food and Drug Development Promotion Act”. Accordingly, it constitutes “facilities for Food and Drug Development Promotion Act”

C) Furthermore, the facts that the instant facilities had undergone an inspection of completion on June 25, 2013 under Article 16(1) of the Housing Site Development Promotion Act are the same as the facts on the basis earlier, and the instant facilities are deemed to have undergone an inspection of completion under Article 62(1) of the National Land Planning and Utilization Act on the same day pursuant to Article 16(2) of the Housing Site Development Promotion Act, and were originally reverted to the Defendant pursuant to Article 25(1) of the Housing Site Development Promotion Act and Articles 99 and 65(1) of the National Land Planning and Utilization Act. Accordingly, the Defendant is obliged to take over the ownership transfer registration procedure for the instant facilities from the Plaintiff on the grounds of gratuitous reversion on June 25, 2013.

B. Determination as to whether there was an agreement to gratuitously revert the instant facility to the Defendant

Furthermore, even if the instant facilities do not fall under public facilities subject to gratuitous reversion pursuant to the Housing Site Development Promotion Act, the following facts and circumstances can be acknowledged by comprehensively taking account of the facts, evidence and evidence No. 6, and evidence No. 15, and the overall purport of pleadings, i.e., the Defendant continued consultations with the Plaintiff regarding the transfer of the instant facilities from the time of completion of construction of the instant facilities, and the acquisition of the instant facilities does not deny the transfer of the said facilities itself even after a dispute over whether the instant facilities should be gratuitously reverted to the Plaintiff. ② On April 15, 2010, the Plaintiff requested the Defendant to remove the installation plan of the instant public facilities under the premise that the Plaintiff would not have agreed on the construction of the instant facilities under the premise that the Plaintiff would not have agreed on the construction of the instant facilities under the premise that the Plaintiff would not have agreed on the construction of the instant public facilities under the premise that the Plaintiff would not have made an agreement on the construction of the instant facilities under the premise that the instant facilities would have been installed under the premise that the Plaintiff would not be subject to voluntary removal of the construction plan.

C. Judgment on the defendant's argument

The Defendant asserts that the facility of this case was designed and completed in a volume that can treat approximately 21 tons of domestic waste in part of the sugar stop area by 16.5 tons per day, as well as 4.6 tons of domestic waste in the distribution stop area of the first seven apartment houses. The Plaintiff voluntarily revised the plan and became an inefficient facility that can treat only domestic waste (4.6 tons per day) generated in the distribution prevention area even when the facility of this case was installed in the distribution suspension area. The Plaintiff failed to complete the transfer management procedure, such as the test operation, and the occupants of the distribution prevention area oppose the operation of the facility of this case by organizing an emergency countermeasure committee and filing a civil petition for the problems of the facility of this case. Thus, the Defendant cannot accept the Plaintiff’s liability for damages, etc., or the Defendant’s assertion that the above provision of the Housing Site Development Promotion Act is excluded or against the agreement between the Plaintiff and the Defendant.

D. Sub-committee

Therefore, the defendant is obligated to take over the registration procedure for transfer of ownership from the plaintiff on June 25, 2013 with respect to the instant facilities for free reversion (as long as the main claim is accepted, it shall not be determined separately for the preliminary claim).

4. Determination on the claim for return of unjust enrichment

A. Whether to return unjust enrichment

As seen earlier, since the ownership belongs to the defendant on June 25, 2013, the expenses for the maintenance and management of the facility of this case shall be borne by the defendant after the date of reversion of ownership. However, the defendant refused to accept the facility of this case in spite of the plaintiff's request for transfer of ownership, and accordingly, the plaintiff has paid the expenses for the maintenance and management of the facility of this case until now. The defendant gains a benefit that is equivalent to the above maintenance and management expenses, and thereby incurred a loss equivalent to the same amount to the plaintiff. Accordingly, the defendant is obligated to return it to the plaintiff as unjust enrichment.

B. Scope of return of unjust enrichment

1) As delineated below, from July 26, 2013 to November 12, 2018, the Plaintiff paid public charges, such as property tax and electricity charges, water supply and sewerage charges, etc. for the maintenance and management of the instant facilities from July 26, 2013 to November 12, 2018. In order to directly maintain the said facilities, the Plaintiff concluded a contract for construction works and management services and paid construction costs and service charges, and thus, the amount of unjust enrichment that the Defendant shall return to the Plaintiff is the aggregate amount of the property tax

2) First of all, according to the statements in Evidence Nos. 43, 43, 49, 50, 52, 53, and 62 through 64 regarding property tax and public charges, the Plaintiff paid property tax of KRW 14,190,030, electricity charges of KRW 280,679,350, and water supply and sewerage charges of KRW 1,745,890 in relation to the instant facilities. Therefore, in relation to public charges, the amount of unjust enrichment to be returned by the Defendant is KRW 296,615,270 (= KRW 14,190,030 + KRW 280,679,350 + KRW 1,745,890).

3) Next, according to the evidence of evidence Nos. 34, 38, 42 through 46, 48, and 51 as to the cost of construction and service, it is acknowledged that the actual cost of construction incurred under the construction contract between the Plaintiff and the Plaintiff and the three companies, including Tae Young Construction, constitutes 121,18,616, and that the service cost incurred from the maintenance and management of the instant facilities from February 1, 2014 to September 11, 2018 under the management services contract between the Plaintiff and the Plaintiff was 541,480,097, in total. Accordingly, in relation to the cost of construction and service, the amount of unjust enrichment that the Defendant is obliged to return to the Plaintiff is 62,68,713 won (=121,618,616 won + 541,480,097 won).

4) Therefore, the Defendant’s unjust enrichment amounting to return to the Plaintiff is KRW 959,283,983 (=296,615,270 + KRW 662,668,713).

C. Sub-committee

As to the Plaintiff’s KRW 959,283 and KRW 579,968,206, the Defendant is obligated to pay damages for delay calculated at the rate of 15% per annum from October 8, 2016 following the delivery date of a copy of the complaint of this case, KRW 379,315,77, upon the Plaintiff’s request, for damages for delay calculated at the rate of 15% per annum from November 15, 2018 following the delivery date of the copy of the claim of this case and the application for change of the cause of the claim of this case, which is reasonable to dispute as to the existence and scope of each Defendant’s obligation, from November 15, 2018 to January 22, 2019; the rate of damages for delay calculated at the rate of 15% per annum from the day of delivery of the original claim of this case to the day of full repayment; 209,968,206% per annum from the day of request for restitution of unjust enrichment of this case; 315% per annum from the above.

5. Conclusion

If so, among the plaintiff's claim for acquisition of ownership transfer registration, the primary claim is accepted as reasonable, and the claim for return of unjust enrichment shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as there is no ground. Since part of the judgment of the court of first instance different conclusions is unfair, the judgment of the court of first instance, including the expanded claim in this court, shall be modified as above. It is so decided as per

(attached Form omitted)

Judges Cho Young-jin (Presiding Judge)