(영문) 서울고등법원 2015.7.14.선고 2015누36135 판결

The judgment of the court below that Defendant B shall pay to the Plaintiff the amount of KRW 16,026,508 and its amount of KRW 50,956,014 from July 24, 2012; Defendant C shall pay the amount of KRW 50,956,014 from August 8, 2012; Defendant D shall pay the amount of KRW 102,116,121 and its amount of KRW 102,121 from August 10, 2012 to the delivery date of the copy of each complaint of this case; and KRW 5% per annum from the following day to the date of full payment.

2. Purport of appeal

In the judgment of the court of first instance, the part against the Defendants shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed in entirety.

Reasons

1. Scope of the deliberation of the political party;

In the first instance trial, the Plaintiff sought the return of unjust enrichment equivalent to the interest on the moving expenses, the return of unjust enrichment equivalent to the interest on the moving expenses, and the payment of contributions to the Defendant C and D. The court of first instance accepted part of the claim for the return of unjust enrichment equivalent to the interest on the respective moving expenses to the Defendants, and dismissed all the claims for the payment of contributions to the Defendants. Since the Defendants appealed against this claim, the subject of the judgment by this court is limited to the claim for the return of unjust enrichment equivalent to the above moving expenses recognized by the first instance court.

2. Details of the disposition;

The court's explanation on this part is the same as the relevant part, except that the court received "the approval of the management and disposal plan on February 10, 201" on February 14, 201, which was issued on February 14, 201, for the reason of the judgment of the court of first instance No. 3, 201, and that the above approval was publicly notified on February 14, 201." Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. The parties' assertion

A. The plaintiff's assertion

The Plaintiff paid interest on the relocation expenses incurred by some members, including the Defendants, from the financial institution as collateral for the instant real estate in the business zone, and the interest on the relocation expenses shall be borne by each member of the Plaintiff, and the Plaintiff shall pay it by priority. As such, the Defendants are obliged to pay interest from the date of the respective relocation expenses of the Defendants paid by the Plaintiffs as indemnity or unjust enrichment until August 25, 2013.

B. The defendants' assertion

1) The Defendants do not have any of the statutes, the articles of incorporation, the resolution of the general meeting of partners, and the agreement stipulating that the Defendants shall bear financial expenses after the Defendants were converted into cash as a clearing. Thus, the Defendants do not have a duty to pay interest payment to the Plaintiffs.

2) If the Defendants are liable to pay part of the interest payment to the Plaintiff, the Plaintiff asserted that the Defendants used and profit from each real estate owned by the Defendants without title from August 11, 2012, when the Defendants acquired the status of a cash clearing agent, until the date when the expropriation amount was paid or deposited. Therefore, the Defendants asserted that the Defendants set off the Plaintiff’s claim for the repayment of the interest payment against the Defendants’ claim for the return of unjust enrichment equivalent to the rental fee for each real estate owned by the Defendants during the pertinent period.

4. Relevant statutes;

It is as shown in the attached Table related statutes.

5. Facts recognized.

A. The articles of incorporation of the plaintiff

1) The matters concerning the relocation expenses, maintenance project expenses, etc. of the Plaintiff’s articles of incorporation are as follows.

Article 5(1) of the Union members shall invest in kind the land, building or superficies owned by them, and the Union shall supply the housing and appurtenant and welfare facilities by constructing them in accordance with the management and disposal plan authorized under Article 48 of the Act, or by replotting under Article 43(2) of the Act.(1) The Union shall faithfully notify and publicly notify the matters concerning the rights and obligations of the union members (including changes; hereinafter the same shall apply) to the union members and interested parties.Article 9(3)(1) The members of the Union shall be the owners of the land or buildings in the project area or the persons with superficies (hereinafter referred to as the "owners of the land, etc.") (hereinafter referred to as the "owners of the land, etc.").Article 10(Rights and Obligations of the Union members)(1) The members of the Association shall have the following rights and obligations:

(1) A cooperative may impose and collect expenses incurred in implementing a housing project, such as construction expenses (hereinafter referred to as "maintenance project cost"), from its members to meet the expenses necessary for implementing the project. (2) The rearrangement project cost under paragraph (1) may be imposed after the resolution of the general meeting, and the amount shall be adjusted equally in accordance with the management and disposal plan comprehensively taking into account all the circumstances, such as the location, size, and environment of the land, buildings, etc. in the project implementation district, and then circumstances. (3) The cooperative may impose an administrative fine on its members who fail to pay the rearrangement project expenses within the payment period within the scope of the arrears applied by the financial institution, and entrust the head of the Si/Gun with the collection of the rearrangement project expenses under Article 60 (5) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. (1) The cooperative shall expropriate the housing fund to the temporary accommodation facilities for the project implementation period among residents in the project implementation district. (2) The cooperative may arrange the members to enter into an agreement with the financial institution who desire to provide moving expenses into the project district and arrange the housing within 20 days after the project implementation plan.

(1) Where there is a difference between the price of a building site or structure previously owned by a person who has purchased a building site or structure and the price of the building site or structure sold in lots, the cooperative shall collect or pay an amount equivalent to the difference (hereinafter referred to as "settlement money") from the person who has purchased the building site or structure after the date of relocation public announcement: Provided, That where it is separately determined with regard to the collection and payment of liquidation money by resolution of the general meeting, it may collect or pay the liquidation money in installments for a specific period from the date of approval of the management plan to the date of relocation public announcement. (2) In applying the provisions of paragraph (1), the price of the building site or structure previously owned and the price of the settlement money shall be calculated by calculating the arithmetic average of the values of at least two appraisal business entities recommended by the head of the Si/Gun. (3) The subsidies under the provisions of Article 63 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be deducted.

2) On November 16, 2012, the Plaintiff held a general meeting of shareholders and added Article 45(6) to the following provisions.

Article 45 (Application for Parcelling-Out, etc.)* The applicant for parcelling-out shall bear the financial expenses for moving expenses of the association members already incurred on the basis of the following day after the expiration date of the period during which the application for parcelling-out can be withdrawn, and settle in cash after deducting the total amount of financial expenses for moving expenses paid by the association based on the previous appraised value of assets.

B. On August 26, 2010, the Plaintiff sent an official door to the title "the receipt of an application for moving expenses", and the contents thereof are as follows.

A person shall be appointed.

C. Around October 2010, the Plaintiff, GS Construction Co., Ltd. (hereinafter “GS Construction”), the contractor of the instant project, and the new bank Bobadong Branch, entered into a loan agreement with the Plaintiff, GS Construction, and the Korean Bank Bobadong Branch regarding each moving allowance, and all of the above agreements included the following.

○○ Interest on Loan and Redemption of Loan: The City Corporation shall lend the interest on the loan to the Association on the payment date of interest each month and have it paid to the Bank: Provided, That the interest on the additional moving expenses shall be paid directly by a partner on the payment date of interest each month. If a partner is disqualified as a member, the member shall lose the benefit on the basis of the loan.

D. The GS Construction advertised that “the average of KRW 120,000,000,000 and the maximum of KRW 500,000,000 in consideration of the appraised value” for its members.

E. On December 9, 2010, the Plaintiff entered into a contract for the instant project with GS Construction, and the details of the relocation expenses among them are as follows.

5. Contract amount: 3,949,10 won/3.3058С (in accordance with Article 7 of the terms of contract for construction project): pure construction cost: 3,895,762 won/3058 (Value-Added Tax Separate) - Documents attached to the contract for construction project, Article 7 (Amount of Contract for Construction Project) (1) The total amount of construction cost to be paid by the Plaintiff to GSS construction shall be the final authorization by the project implementation authorization authority;

연면적에(순수공사계약금액3,895,762원/3.3058㎡)을곱한금액과분양대행용역비(53,348원/3.3058. 단, 당사 자이 갤러리 사용 조건 금액임)를 합한 금액이며, 동 금액은 원고가 부담해야 할 순수공사비(3,895,762원/3,3058)의 부가가치세액과 분양대행용역비(53,348원/3,3058㎡)의 부가가치세액은 별도로 하고, 기본 이주비 금융비용은 제외되었다.| 제13조(거주자의 이주 및 철거)① 사업구역 내 거주자의 이주 및 철거는 최초 이주비 대여일로부터 14개월 이내에 원고의책임하에 완료하여야 하며, GS건설은 적극 협조하여야 한다.(④) 공가처리, 잔토처리, 지장 및 지하 지장물 제거 및 이주 철거 불응 거주자에 대한 철거행정대집행절차 및 이행은 원고의 책임과 비용으로 한다.| 제14조(사업추진비)① 본 사업의 사업추진비는 다음 각 호와 같으며, GS건설은 금융기관을 알선하여 원고가 조달할 수 있도록 협조하거나 GS건설은 원고에게 별도로 정하는 대여조건에 따라 대여할수 있다.11. 기본 이주비 금융비용| 제15조(이주비의 대여)① 원고의 조합원 이주비는 기존 재산권 내역에 따라 아래와 같이 정하고, 원고와 GS건설이협의하여 원고의 조합원이 이주비를 금융기관으로부터 직접 차입하기로 하며, GS건설은이주비 차입에 필요한 금융기관의 업무협약 등의 지원을 하여야 한다. 만약 이주비 차입에 필요한 업무협약이 이루어지지 않을 경우에는 GS건설이 원고의 조합원 이주비를 대여하여야 한다.

* The interest on the basic moving expenses is adjusted according to the property rights description. ② The GS Construction will treat the interest on the basic moving expenses as the project promotion expenses in accordance with article 14, paragraph 1, and the GS Construction will recover the amount of the loan separately from the construction expenses, provided that the interest on the additional moving expenses will be paid by the plaintiff's union member according to the interest rate set by the financial institution providing the moving expenses.Article 18 (Suspension of Loan, etc.) ① If the plaintiff or the plaintiff's union member fails to complete the construction within the fixed period of all the schedule (this note, completion of management and disposal contract, authorization of the management and disposal contract, application for the allotment of union members, general allotment contract) set forth in this contract, or delays the payment of the construction contract amount, the GS Construction will notify the payment within one month, and if the implementation is not completed even after the expiration of that period, the lending of all the business promotion expenses (including

F. As a result, Defendant B borrowed 28,60,000 won from our bank on November 11, 201, 111, 114,400,000 won on July 4, 201, Defendant D paid 54,00,000 won from a new bank on September 26, 201, and Defendant C paid 16,00,000 won from a new bank on September 26, 201, and 25,200,000 won from a new bank on April 14, 2011, and 10,80,000,000 won on April 15, 2011. The Plaintiff paid interest on loans to the bank as follows.

A person shall be appointed.

G. The purport that the Seoul Regional Land Tribunal does not hold an agreement on the liquidation money between the plaintiff and the defendants after the revocation of the application for parcelling-out by the defendants, and thus, the payment of each acceptance ruling amounting to KRW 288,526,820 to Defendant B, KRW 221,471,980 to Defendant C, and KRW 451,640 to Defendant D is paid.

the ruling was made.

[Ground of recognition] Unsatisfy, Gap evidence 10, 13, 16 through 18, Eul evidence 1, 2, 5 through 7, and all of the arguments 6. Determination by issue

(a) Whether an indemnity or unjust enrichment equivalent to the interest substitute payment has been recognized;

In full view of the following circumstances acknowledged as a whole, namely, ① the Plaintiff announced its members to apply for the loan of the basic moving expenses to the Plaintiff without interest to promptly implement the redevelopment project by shortening the period of relocation of its members, ② the Plaintiff agreed to repay the interest of the basic moving expenses by borrowing the money from the contractor without interest to the Plaintiff, ③ the Plaintiff agreed to recover the interest of the basic moving expenses separately from the Plaintiff, excluding the financial expenses of the moving expenses from the contract amount when concluding the construction contract with the contractor, ③ the Plaintiff agreed to recover the interest of the basic moving expenses separately from the Plaintiff. (Article 45(6) of the Articles of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of the Plaintiff, which was revised as of November 16, 2012, which did not affect the Defendants since the Defendants was newly established after the Plaintiff lost its membership status and did not exist.

Therefore, it is merely a performance of the above agreement that the Plaintiff paid interest accrued until August 10, 2012, which was before the Plaintiff lost its membership. Thus, it cannot be deemed that the Defendants acquired the right to claim restitution of unjust enrichment or the right to claim reimbursement of unjust enrichment with such nature. On the other hand, with respect to the interest payment on behalf of the Defendants from August 11, 2012, which was after the Defendants lost its membership status, the Plaintiff shall be deemed to have repaid the Defendants’ obligation as a third party, and accordingly, it shall be deemed to have acquired the right to claim restitution of unjust enrichment or the right to claim reimbursement with such nature (asmuch as the right is recognized under the Civil Act, it can be recognized that the provisions of the articles of incorporation, the resolution of the general meeting of partners

If so, the interest that the Defendants paid on the specific amount from August 11, 2012, after the Defendants lost their membership, is KRW 6,358,290, KRW 6,093, KRW 212, KRW 12,059, and KRW 12,059,979, as seen earlier (the Plaintiff asserted that it paid interest exceeding it and up to August 25, 2013, there is no evidence to acknowledge it).

Furthermore, the Plaintiff sought damages for delay from the date of withdrawal of each of the above payments by the Defendants, but the claim for restitution of unjust enrichment or the claim for reimbursement with its nature may result in delay from the date of receipt of the claim for performance. Thus, the part of the claim for damages for delay exceeding the damages for delay from the day following the date of delivery of a copy of the complaint acknowledged that the Plaintiff requested performance against the Defendants cannot be accepted.

Ultimately, it is reasonable for the Plaintiff to dispute as to the existence and scope of each of the above Defendants from July 3, 2013, which is the day following the delivery date of a copy of the complaint, and from July 2, 2013, which is the day following the delivery date of a copy of the complaint, Defendant C is obligated to pay 6,093,212 won, and from July 2, 2013, which is the day following the delivery date of a copy of the complaint, and from July 2, 2013, the day following the delivery date of a copy of the complaint, and from July 2, 2013, which is the day following the delivery date of a copy of the complaint, 5% per annum as stipulated in the Civil Act until January 27, 2015, which is recognized as the delivery date of the copy of the complaint.

B. Determination as to the defendants' defense that offsets against the claim for return of unjust enrichment

1) Relevant legal principles

The purport of Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents who have failed to apply for parcelling-out or withdrawn land, etc. to the owners of land, etc. who have made an investment by a reconstruction association, is to make cash settlement in cases where a partner is to be liquidated by losing his/her status as a partner after performing the obligation of investment in kind in accordance with the articles of association, it shall be deemed that the said partner is to have determined to pay in cash without recognizing the return of the goods he/she has made an investment (see, e.g., Supreme Court Decision 2012Da

Meanwhile, Article 48-2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents may remove the previous buildings after the approval of the management and disposal plan is obtained, and Article 49(6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Persons with superficies, Persons with Chonsegwon, Lease Rights, Lease Rights, etc. shall not use or benefit from the previous land or buildings until the date of the public announcement of relocation under Article 54. Ultimately, when the public announcement of the approval of the management and disposal plan is made under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, use or benefit from the previous land or buildings by the right holder, such as owners, superficies, persons with superficies, lease rights, etc., of the previous land or buildings, shall be suspended and the project implementer may use or benefit from the previous land or buildings (see, e.g., Supreme Court en banc Decision 91Da22094, Dec. 22, 192; Supreme Court Decision 2007Da83

However, according to Articles 38, 40(1), and 47 of the former Act, and Article 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas, etc., a project developer for a housing redevelopment project shall liquidate land, buildings, or other rights within 150 days from the date on which the project developer fails to apply for parcelling-out among the owners of land, etc. or becomes a person subject to cash liquidation due to the withdrawal of application for parcelling-out, etc. among the owners of land, etc., within 150 days from the date on which he/she becomes eligible for cash liquidation, and the liquidation amount shall be calculated in consultation with the person subject to cash liquidation, and if an agreement is not reached, the project developer shall pay the full amount of compensation before the commencement of construction for the relevant public works. In full view of these provisions, Article 62 of the Public Works Act provides that the project developer shall pay the landowner and person concerned the full amount of compensation before the commencement of construction for the relevant public works. In order to receive the land or buildings within the rearrangement zone owned by a member

Notwithstanding Article 49(6) of the former Act, a person subject to cash settlement may not seek the delivery of land or buildings against the person subject to cash settlement (see, e.g., Supreme Court Decision 2008Da91364, Jul. 28, 201).

2) Specific determination

In full view of the facts acknowledged earlier and the purport of the entire pleadings as above, even if the Plaintiff used and made profits from the real estate owned by the Defendants for the instant business prior to the payment of liquidation money to the Defendants, it cannot be deemed that the Plaintiff used and made profits from the real estate owned by the Defendants without title. Therefore, it is reasonable to deem that the Defendants cannot seek a return of unjust enrichment against the use and profit.

① The Defendants maintained the status of the Plaintiff’s union members by filing an application for parcelling-out within the period for application for parcelling-out as stipulated in Article 46 of the Urban Improvement Act and the articles of incorporation after the public announcement of authorization for the implementation of the instant project.

② As to the instant business based on the premise that the Defendants applied for sale, the Plaintiff

On February 10, 201, after obtaining authorization of a management and disposal plan on February 14, 201, the above authorization was publicly announced. Accordingly, since the date of the foregoing public announcement, the Defendants’ right to use and profit from the real estate owned by the Defendants was suspended, the Plaintiff was able to use and profit from the instant real estate owned by the Defendants for the instant business, and the Defendants’ right to remove the buildings among the real estate owned by the Defendants was also granted. As long as the Defendants were not the subject of cash settlement at the time of the said public announcement, the Plaintiff used the real estate owned by the Defendants. In making profits, consultation or acceptance procedures with the Defendants

③ The Defendants voluntarily transferred the real estate owned by the Defendants before and after the authorization of the management and disposal plan (at least before the Defendants were granted the moving expenses, the Defendants failed to submit the key to the entrance prior to the Plaintiff’s moving expenses to the Plaintiff, and notified the Plaintiff to pay the moving expenses after confirming the possible status of the transfer. Thus, the Defendants performed the obligation of investment in kind to the Plaintiff, and the Plaintiff was able to actually use and profit from the real estate owned by the Defendants. ④ After the authorization and public notice of the management and disposal plan regarding the instant project, the Defendants provided the Plaintiff with an opportunity to leave the instant project after setting the alteration period for the application for parcelling-out, thereby allowing the Plaintiff to withdraw from the Plaintiff. However, even if the Defendants already withdrawn from the Plaintiff after the authorization and public notice of the management and disposal plan that included them, deeming that the Defendants’ right to use and profit from the real estate already reverted to the Plaintiff was temporarily returned to the Defendants, and thus, reverted to the Plaintiff by performing the Defendants’ obligation of transfer of ownership is unreasonable in light of the validity of the management and disposal plan that recognizes the authority of the Plaintiff’s right to use and profit.

⑤ Therefore, even if the Defendants lost their membership ex post, it is reasonable to view that the Defendants may use and benefit from the said real estate for business purposes in accordance with the validity of the management and disposal plan already received, as in the previous case. Between the Defendants and the Defendants, only the issue of cash settlement for the said real estate under Article 47 of the Urban Improvement Act is left behind. It accords with the purport of the cash settlement system under the Urban Improvement Act or with

3) Sub-determination

Therefore, the defendants' defenses against the plaintiff on the premise that there is a claim for return of unjust enrichment equivalent to the rental fee for real estate owned by the defendants against the plaintiff are no longer reasonable (the defendant asserted that the plaintiff can seek a payment of interest for the amount of the expropriation ruling from the time when he acquired the status of a cash clearing agent pursuant to Article 47 of the Urban Improvement Act to the time when he/she paid the expropriation ruling or the amount of the expropriation ruling, and set off a set-off against the plaintiff's claim for interest for the amount equivalent to the amount of the redemption for the interest of the plaintiff with the automatic claim.

However, Article 47 of the Urban Improvement Act provides that a project implementer shall liquidate in cash within 150 days from the time when he acquires the status of a cash liquidation agent. Since the Plaintiff’s articles of incorporation does not specifically provide for interest, if the liquidation amount is not paid so that the maturity period of the obligation to pay the liquidation amount may expire, the Defendants may seek interest or delay damages in accordance with the statutory interest rate pursuant to separate procedures. However, the above assertion is a new argument that is different from the set-off objection with the claim for return of unjust enrichment as mentioned earlier. However, the above assertion was not asserted at all prior to the conclusion of the pleadings, and there was no submission of materials to know the timing of the payment of the liquidation amount or the maturity period. Thus, no further

7. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is just in this conclusion, the defendants' appeal is dismissed as it is without merit, and it is so decided as per Disposition.