August 22, 2019

A. The Defendant shall pay to the Plaintiff the amount of KRW 2,965,325,682 and KRW 2,767,717,879, the amount of KRW 15% per annum from January 27, 2016, KRW 190, KRW 706, and KRW 563, the amount of KRW 60 per annum from August 15, 2019 to September 19, 2019, and KRW 15% per annum 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. The above paragraph 1(a) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 2,97,379,602 won and 1,993,552,887 won with respect to the plaintiff 1,964,871,555 won from January 1, 2014; from April 18, 2014 to the service date of a duplicate of the application for change of the claim and the date of delivery of a copy of the application for change of the claim from August 12, 2019 to the date of full payment; 6% per annum; and 15% per annum from the next day to the date of full payment (the plaintiff extended the claim by this court).

A. The Plaintiff entered into an agreement with the head of the District Education Office of Gangnam-gu Seoul Metropolitan Government and the head of the District Education Office of this case with respect to the installation of school facilities within the instant project district (hereinafter “instant agreement”) around April 2013, as the implementer of the Bogeumjari Housing Project in Gangnam-gu and Seocho-gu Seoul District (hereinafter “instant project district”).

(2) The purpose of this Convention is to provide for the matters necessary for the implementation of this project between Gap and Eul in the instant project district pursuant to Article 4-2 of the School Sites Act. The term "school site" means that the expenses incurred for the construction of school facilities, such as building facilities, gymnasiums, meal facilities, and other facilities, are to be paid within the scope of the existing project site and the charges incurred for the construction of the new school facilities within the scope of the existing project site. (5) The term "school site" means the expenses incurred for the construction of the new school facilities, such as the settlement of accounts, and the charges incurred for the construction of the new school facilities, within the scope of the existing project site. (4) The term "expenses incurred for the construction of the new school facilities" means the expenses incurred for the construction of the new school facilities, such as the settlement of accounts, within the scope of the existing project site and the charges incurred for the construction of the new school facilities, and the charges incurred for the construction of the new school facilities, including the expenses incurred for the construction of the new school facilities.

B. In accordance with the instant agreement, the Plaintiff established ○○ Elementary School, △△ Elementary School, △△ Elementary School, △△ Elementary School, and △△ Elementary School, and handed over the Defendant (hereinafter referred to as “each of the schools”) to the Defendant. In other words, the Plaintiff refers to “○○ Elementary School, ○○○”, and “each of the schools of this case” in this case.

C. In order to install each of the school facilities of this case, the Plaintiff paid each of the “principal” stated in each of the “payment dates” in the attached Tables 1 and 2 to construction business operators. The Defendant paid the Plaintiff the project cost and internal expenses for each of the school facilities of this case as indicated in the following table, and acquired each of the school facilities of this case.

Of the amount paid on the date of transferring and taking over the registered school facilities included in the main sentence, the amount paid on May 15, 2013, 201 among the ○○ Seocho △△△△△△△△△, the number of which is KRW 1,069,320 on April 19, 2013; KRW 1,069,320 on May 27, 2013; KRW 17,256,965,00 on May 28, 2013; KRW 17,256,965,00 on May 28, 2013; KRW 15,54,596,00 on January 15, 2014; KRW 501,50 on April 36, 201, KRW 710 on April 36, 2014; KRW 508,686,97,15 won on May 15, 2014.

D. On November 8, 2013, the Plaintiff filed a claim with the Defendant for the payment of the amount equivalent to the interest on the construction cost disbursed for the installation of the facilities from ○○○ and △△△△△, but the Defendant rejected the payment on the ground of “in the process of a request for statutory quality of construction fund interest interest”, and thereafter, the Plaintiff and the Defendant did not reach an agreement on the payment of the said

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 21, 27, 28, Eul evidence Nos. 8 and 10, the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

The Plaintiff filed a claim for the principal for the installation cost of school facilities and the amount equivalent to the statutory interest thereon, which was already paid in accordance with the instant agreement. Accordingly, the Defendant asserts that, after the instant lawsuit, the Plaintiff and the National Office of Education agreed to have the principal of school facilities under the Act on Special Cases Concerning the Securing, etc. of School Sites (hereinafter “School Sites Act”) as the Plaintiff and to withdraw all the litigation related thereto, the Plaintiff has no interest in the protection of rights.

B. Determination

According to the statement in Eul evidence No. 13, it is recognized that the Gyeonggi-do Superintendent of an Office of Education representing the plaintiff and the National Office of Education of Gyeonggi-do entered into an agreement on April 27, 2017, stating that "the lawsuit seeking revocation of the imposition of charges for school sites and the lawsuit seeking return of unjust enrichment related to Article 2 of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 14604, Mar. 21, 2017) shall be immediately withdrawn, and where school facilities are installed pursuant to Article 4-2 of the same Act, the Office of Education shall establish

However, as can be seen from the text of the above Convention, the above contract to withdraw a lawsuit seeking revocation of the imposition of charges for school site and a lawsuit seeking restitution of unjust enrichment. This is the Supreme Court Decision 2014Du47686 Decided November 24, 2016, Article 2 Subparag. 2 of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015) does not provide for the Act on Special Measures for the Construction, etc. of Rental Housing (wholly amended by Act No. 9511, Mar. 20, 2009) as the basis of the business subject to imposition of charges for school site under the above Act does not include the amount equivalent to the charges for school site, charges for school facilities imposed under Article 2 Subparag. 2 of the above Act, or the charges for restitution of unjust enrichment under the premise that such disposition is null and void, and thus, the Plaintiff can only be construed as the Plaintiff’s claim to resolve the above legal dispute.

In addition, Article 6(1) of the above Convention provides that "where a plaintiff installs school facilities pursuant to Article 4-2 of the School Sites Act, the Office of Education shall establish it through an entrustment contract." However, Article 6(3) of the same Convention provides that "detailed matters such as the commencement time of the entrustment contract shall be separately determined." Thus, it cannot be deemed that the contents of the above Convention on the installation entity of school facilities have any effect on the benefit of protecting the rights of the lawsuit of this case which was filed prior

Therefore, the defendant's defense prior to the merits cannot be accepted.

3. Judgment on the merits

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

According to Article 4-2 of the School Sites Act, each of the instant school facilities costs should be borne by the Defendant. However, as the Plaintiff borne by the Defendant on behalf of the Defendant, the Defendant should pay the Plaintiff the expenses incurred in installing school facilities and the amount equivalent to the statutory interest after the payment date thereof.

In the instant agreement, the Plaintiff and the Defendant separately agreed on the “capital expenses (interest on construction capital)” (Article 11(2) and stipulated that “where there are different opinions on the matters and the interpretation not prescribed in the agreement, the Plaintiff and the Defendant shall consult with each other or shall comply with the provisions of the relevant Acts and subordinate statutes, etc. (Article 12).” Since there was no agreement on the payment of the amount equivalent to the said interest, the Plaintiff and the Defendant sought payment of the expenses for installing school facilities and the amount equivalent to the said interest pursuant to the relevant Acts and subordinate statutes.

2) Summary of the defendant's assertion

Article 4-2 of the School Sites Act provides that the Plaintiff shall bear the expenses incurred in installing each school facility of this case. Thus, the Defendant is obligated to pay the principal to the Plaintiff in accordance with the instant agreement. The statutory interest equivalent to the cost incurred in installing each school facility of this case, which the Plaintiff seeks, is not included in the expenses incurred in installing each school facility of this case, and a separate agreement may be filed pursuant to Article 11(2) of the instant agreement, but no agreement is reached, so the Defendant is not obligated to

Even if the Defendant is liable to pay the above statutory interest amount to the Plaintiff, it can be deemed that the payment period has not yet arrived, or that the extinctive prescription has already been completed, and the interest rate shall also be applied at the rate of 1.77% per annum pursuant to the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party.

(b) Persons liable to bear expenses incurred in installing each school facility of this case under the School Sites Act;

1) Interpretation of the instant agreement

First, since the Plaintiff did not reach an agreement with the Defendant on the payment of the amount equivalent to the interest on the construction cost of each of the school facilities of this case, the Plaintiff asserted that the Defendant sought payment based on the relevant laws and regulations pursuant to Article 12 of the Convention, and the Defendant asserts that there is no obligation to pay the amount unless the agreement on the payment of the amount equivalent to the interest has been reached.

Although the Plaintiff and the Defendant separately agreed on the amount equivalent to the interest on the installation of school facilities under Article 11(2) of the Convention, the fact that no agreement has been reached is as seen earlier.

On the other hand, around May 201, 201, before the conclusion of the instant agreement, the Plaintiff and the Defendant agreed to install each of the instant school facilities on the condition that the Plaintiff would bear the total amount of the expenses (Evidence A7, 8, 11). Accordingly, on July 1, 201, the Plaintiff requested the Defendant to pay the expenses for the establishment of the school in advance pursuant to the said agreement, but not accepted (Evidence A7, 9). After that request the Defendant to pay the expenses for the establishment of the school in advance, the Defendant’s direct establishment, and the payment of the amount equivalent to the capital cost calculated at a certain ratio from the payment to the settlement of the expenses for the establishment of the school, the Plaintiff exchanged opinions several times with the Defendant, but did not reach an agreement thereon, the expenses for the establishment of the school at which the date of payment has arrived shall be paid first, while the agreement was concluded to separately consult on the amount equivalent to the capital expenses (construction interest) for the said amount (Evidence A, 10, 12, 16, and 18).

① As can be seen, the Plaintiff and the Defendant have contested the burden of paying the amount equivalent to the interest on the time of installing school facilities or the Plaintiff’s expenditure for a considerable period prior to the conclusion of the instant agreement. ② Article 12 of the instant agreement provides that the Plaintiff and the Defendant shall consult on matters that are not stipulated in the instant agreement or have different opinions in accordance with relevant Acts and subordinate statutes regarding the payment of the amount equivalent to the interest, and thus, the burden falls under cases where the agreement was not determined in the agreement or there is an opinion on the interpretation thereof, and ③ if the agreement on the payment of the amount equivalent to the interest in the instant case is not concluded, if the agreement on the payment of the amount equivalent to the interest in the instant agreement is interpreted as not always possible, or if it is interpreted as not consistent with the purport of allowing the agreement to be made in favor of the refusal of the agreement, it is reasonable to interpret that the Plaintiff and the Defendant should have the person liable for the payment of the said amount of interest in accordance with the interpretation of relevant Acts and subordinate statutes.

2) Interpretation of the School Site Act

A) In accordance with Article 4-2 of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 11998, Aug. 6, 2013; hereinafter “former School Sites Act”), the Plaintiff and the Defendant concluded the instant agreement to install school facilities in the instant project district (Article 1 of the instant agreement) and the interpretation of the former School Sites Act, which is the relevant statute of the instant agreement.

B) Article 2 Subparag. 2 of the former Act provides, “Development Project” means a project to create and develop land for housing construction exceeding 100 households or to build multi-family housing among projects implemented under the Building Act, Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act.”

As can be seen, Article 2 Subparag. 2 of the former Act does not introduce the former Special Act on the Construction of Bogeumjari Housing, Etc. (amended by Act No. 12251, Jan. 14, 2014; hereinafter “Stwitch Act”). Article 12(1) of the Stwitch Act provides that where an implementation plan for an industrial complex development project is approved, the preparation and authorization of an implementation plan under the Urban Development Act (Act No. 11) and approval of a project plan under the Housing Act (Act No. 20) shall be deemed to have been obtained. However, it is deemed that the approval of an implementation plan for an industrial complex development project is deemed to have been obtained pursuant to the Stwitch Act, and it is difficult to deem that all the provisions of the Urban Development Act and the Housing Act, which are premised on obtaining such approval or approval, apply to the project subject to the imposition, are not applicable to all the provisions of the said Act (see, e.g., Supreme Court Decision 2016Du1664, supra.).

Therefore, the Plaintiff, an implementer of the Bogeumjari Housing Project, is not a development project operator under the former School Sites Act, and thus, it cannot be deemed that the Plaintiff is obligated to install school facilities pursuant to Article 4-2 of the same Act.

C) Nevertheless, the Plaintiff and the Defendant concluded the instant agreement on the premise that Article 4-2 (hereinafter “instant provision”) of the former School Sites Act is applied to the instant case, and thus, the Plaintiff and the Defendant were to bear the burden of installing school facilities under the said provision.

(1) Where development project implementers under the items of Article 4 (3) 1 of the former School Sites Act, which are included in the main sentence of the same Article, perform development projects to supply school sites without compensation in the Seoul Metropolitan area under subparagraph 1 of Article 2 of the Seoul Metropolitan Area Readjustment Planning Act, they shall install school facilities including small parks and landscaped green areas, and supply them without compensation to the Office of Education of Cities/Dos as public property belonging to the special accounts of City/Do educational expenses.

As seen above, Article 5 (5) of the instant case provides that where the installation cost of school facilities exceeds the development gains from green area reduction stations, the difference shall be determined through consultation and the Superintendent of an Office of Education shall share the difference.

In the case of the Bogeumjari Housing Project, there is no dispute between the plaintiff and the defendant as to the fact that there is no development gains of the plaintiff due to the greenbelt reduction, and the plaintiff asserts that the defendant should bear the total amount of the installation expenses of the school facilities exceeding the development gains in such a case, while the defendant asserts that the installation expenses should be shared

The purpose of statutory interpretation should be to find a concrete validity within the scope that does not undermine legal stability. For this purpose, in principle, a reasonable interpretation must be made in response to the request of statutory interpretation as above by additionally using systematic and logical interpretation methods that consider legislative intent and purpose, history of enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes, etc.

Since the provision of this case provides that "the difference shall be determined through consultation and shared by the Superintendent of an Office of Education," in light of the ordinary meaning of the text, it is possible to interpret that the superintendent of an office of education bears the whole amount of the difference as alleged by the plaintiff and share the installation costs, but it is also possible to interpret that the superintendent of an office of education bears some of the difference between

However, in light of the following various circumstances, it is reasonable to interpret that the Superintendent of an Office of Education bears the total amount of expenses incurred in installing school facilities in the event that no development gains accrued from green area reduction exist as in this case.

(1) A local government shall establish elementary schools, middle schools, and special schools that educate all persons subject to compulsory education in its jurisdiction (Articles 9 and 11 of the Framework Act on Education, and Article 12 (2) of the Elementary and Secondary Education). In order to have them bear the obligation to establish such schools, there shall be clear grounds in the Acts, and such Acts shall be strictly interpreted and applied, and they shall not be excessively expanded or analogically interpreted in the direction disadvantageous to the persons subject to compulsory education.

② By prescribing special cases concerning the creation, development, and supply of school sites and the bearing of related expenses, etc., the School Sites Act only prescribed the provision on the supply of school sites for the purpose of facilitating the securing of school sites. However, the instant provision was newly established on May 28, 2009, which is the special provision on the installation of school facilities, as the Act requires the development project implementers to impose not only the school site but also the obligation to bear the expenses for the installation of school facilities. In exceptional cases, the instant provision allows development project implementers to reduce green space ratio in the project district instead of imposing the duty to install school facilities, thereby allowing them to use the development gains therefrom as the installation cost of school facilities.

③ The School Site Act is justifiable within the extent of balancing the public interest that is to ensure equal educational opportunities as an appropriate means to achieve the legitimate legislative purpose of securing new financial resources for securing school sites and the private interest of the developer’s property interest (see Constitutional Court Order 2007HunGa9, Sept. 25, 2008). Therefore, imposing the burden of installing school facilities even without any development gains from green-scale reduction may excessively infringe on the developer’s property rights.

(4) In addition, if a development project operator bears expenses to install school facilities exceeding the development gains from green area reduction stations, the amount equivalent to such expenses can eventually be transferred to housing sale proceeds from the development project, thereby causing the general public to bear expenses to install school facilities and actually violating the principle of free compulsory education.

⑤ If interpreting that the difference between development gains and installation costs should be shared based on the result of consultation, it is difficult to set the criteria for sharing the difference if the consultation between the parties is not achieved smoothly, and it is also difficult to expect that consultation will take place in a substantial equal position by a local government holding a right to authorize and permit a development project, as it comes to the superior advantage of negotiations.

(6) In relation to the construction of each of the school facilities in this case, the Ministry of Education, Science and Technology has taken the position that “the development gains from green belt reduction shall be used as the installation costs of school facilities and the difference between the shortage shall be borne by the Superintendent of an Office of Education.”

C. Defendant’s obligation to pay the amount equivalent to interest

As can be seen, the Plaintiff does not have the duty to establish each of the instant schools under the interpretation of the former School Sites Act, and even if the Plaintiff had the duty to install each of the instant school facilities pursuant to the instant agreement and Article 4-2 of the former School Sites Act, insofar as there is no development gains from green area reduction, the entire cost of installing school facilities shall be borne by the Defendant.

In addition, if the Plaintiff is not a person responsible for installing school facilities or a person responsible for installing school facilities, but the Defendant is obligated to pay the amount equivalent to the statutory interest on the costs incurred by the Plaintiff in accordance with the delegated person’s obligation to reimburse the expenses, and such statutory interest amount is considered to be included in the cost of school construction in a broad sense. Therefore, the Defendant is obligated to pay to the Plaintiff the amount equivalent to the costs of each of the school facilities of this case borne by the Plaintiff in accordance with the instant agreement and relevant statutes and the statutory interest after the payment date thereof (Article 2 of the Commercial Act applies to the commercial activities of public corporations).

In this regard, the Defendant asserts to the effect that, insofar as the time and method of payment of school facilities installation costs are separately prescribed in the instant agreement, the obligation under the instant agreement can be deemed to have been fulfilled by paying the principal of the installation costs accordingly. However, even though the Plaintiff and the Defendant determined the timing and method of payment of the principal of the school facilities installation costs in the instant agreement, as long as they separately agreed on the amount equivalent to the interest on the installation costs, it cannot be deemed that there is no liability for payment of the amount equivalent to

D. Determination on the remainder of the Defendant’s assertion

Article 67(5) of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party provides that "the head of a local government or a contracting officer may return a written request to the other party, specifying the reasons therefor, if he/she finds that the details of request are unreasonable after receiving a request for payment of consideration, and in such cases, the period from the return date to the date of receiving the request shall not be included in the payment period." Article 68 of the Enforcement Decree of the same Act provides that "if the payment is delayed, the period from the return date to the date of receiving the request shall not be included in the payment period." As such, Article 68 of the same Enforcement Decree provides that "the interest applied to the overdue interest rate applied to the loan of general funds by a treasury designated by the head of a local government pursuant to

However, the above enforcement decree is a provision on the timing of payment and overdue interest applied when a local government receives a notification of the completion of the pertinent contract from the counter-party to the contract and pays the price after the completion of the inspection. As seen in this case, it cannot be deemed that the Defendant, a local government, denies its obligation to pay the amount equivalent to the statutory interest on the installation cost of school facilities and refuses the payment thereof (see Supreme Court Decision 2013Da45600, Apr. 24, 2014).

The Defendant asserts that the three-year extinctive prescription for the instant claim was completed on the premise that the instant amount equivalent to the interest falls under the claim for construction cost. However, it is difficult to view the Plaintiff’s claim as a claim for payment of the expenses incurred by the Plaintiff on behalf of the Defendant and the amount equivalent to the interest accrued therefrom, and that the claim constitutes the construction cost. The Plaintiff filed the instant lawsuit on January 11, 2016, which was before the lapse of three years from April 2013, which was the date of conclusion of the instant agreement, which was the date of conclusion of the instant agreement, on which the

(e) Results of settlement following repayment;

The Plaintiff bears the cost of installation as shown in attached Tables 1 and 2 to install each of the instant school facilities, and the Defendant paid the Plaintiff a sum of KRW 50,868,976,151 according to the instant agreement from March 7, 2013 to April 4, 2014, as seen earlier.

The Plaintiff asserted that the amount of repayment was preferentially appropriated for the amount equivalent to the interest on the principal of the above installation costs according to the method of statutory appropriation and filed a claim for the payment of the remainder of principal and interest. However, in light of the fact that the Plaintiff and the Defendant agreed to separately consult on the amount equivalent to the interest on the installation costs under the instant agreement, and that the agreement on the method of payment of the amount equivalent to the interest was not made at the time of payment, and it is difficult to deem that the period of payment for the amount equivalent to the above interest has arrived, it is reasonable to deem that the said amount was paid for the repayment of the principal of the installation costs which has

Accordingly, the principal and interest remaining after the settlement of the Defendant’s repayment amount as described in the attached Table 1, 2, as described in the attached Table 1, 2, shall be KRW 2,013,721,232 for ○○○○○ and △△△△△△△, (i) the principal amount of the installation cost plus KRW 493,721,232), and KRW 954,873,347 for △○○ (i.e., the principal amount of the installation cost plus KRW 2,903,920 + interest 951,969,427) (i) the principal amount of the installation cost plus interest 951,920 + interest 951,969,427), within the scope requested by the Plaintiff, shall be calculated from the following day of the payment of each installation cost to the extent sought by the Plaintiff; and (ii) the completion date for △△○ and △△ for each principal settlement date and April 17, 2017, 2014).

Therefore, the defendant shall pay to the plaintiff the remaining installation costs of KRW 2,965,325,682 ( ① the above KRW 2,010,721,235 with respect to the 2,013,721,232 won with respect to the △△△△△△△, + KRW 954,87,717,879 with respect to the plaintiff's 2,767,717,879, which is the day following the delivery of the copy of the complaint of this case, to the plaintiff from January 27, 2016, KRW 190,706,563, which is the day following the delivery of the purport of the claim and the application for change, to the plaintiff (= the above KRW 2,013,721,435 won with respect to the △△△△△△△△△△△△△△△△△△△△, the defendant shall pay damages for delay by 165% per annum 165,79748.

The Plaintiff sought damages for delay from the day following the last disbursement date of each of the instant school facilities (in the case of ○○○○ and △△△, January 1, 2014, and April 18, 2014, in the case of △△○○○○○, and the case of △△○, April 18, 201), but there is no evidence to prove that the repayment period for the principal and interest of the remainder installation costs has arrived before the instant lawsuit was filed. Therefore, the Plaintiff’s claim for this portion of the claim is without merit (the obligation to pay the interest of this case is a debt with no fixed due date, and there is no evidence to prove that the Plaintiff requested the Defendant to pay the interest after the final settlement of the agreement on the payment. According to the instant agreement, the principal amount was paid within one month from the Defendant upon the Plaintiff’s request for payment along with documentary evidence, and there is no evidence to prove that the Plaintiff requested payment

2. Conclusion

Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance with different conclusions is unfair, it is so accepted in part of the plaintiff's appeal, and it is modified as the judgment of the court of first instance, including the plaintiff's claim extended

(attached Form omitted)

Judges Bo Jae-sik (Presiding Judge)

(1) The Plaintiff claimed damages for delay against KRW 2,958,424,442 of the instant claim amounting to KRW 2,977,379,602 (=1,93,552,887 + 964,871,555).