Distribution 2 Complex Housing Reconstruction and Improvement Project Association (Law Firm Square, Attorneys Southern-pack et al., Counsel for the defendant-appellant)

Seocho-gu Seoul Metropolitan Government (Law Firm Haak, Attorney Kim Yong-si, Counsel for the plaintiff-appellant)

June 1, 2012

Seoul Central District Court Decision 2010Gahap15313 Decided October 13, 2011

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be revoked, and the plaintiff's claim corresponding to the revoked part

The defendant shall pay to the plaintiff 5,160,422,810 won and 3,129,398,500 won with 5% per annum from September 6, 2006 to February 26, 2010; 20% per annum from the next day to the day of full payment; 5% per annum from July 16, 2009 to August 17, 2012; and 20% per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The defendant and Seoul Special Metropolitan City (the Seoul Special Metropolitan City was the co-defendants of the first instance court and the first instance court, but the part on the Seoul Special Metropolitan City among the plaintiff's claims in this case was finalized as the plaintiff did not raise any objection to the settlement recommendation decision as of June 19, 2012) shall be jointly and severally 26,560,680 won and 5% per annum from July 16, 2009 to February 26, 2010; 20% per annum from the next day to the day of full payment; 5,169,276,360 won; 3,129,398,50 won among them; 2,039,000 won from September 6, 2006 to the day of full payment; 2,039,87,860 won from the next day to February 26, 2010 to the day of full payment; 30% per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: "The person who was the owner" of No. 3 of the judgment of the first instance court, followed by inserting "the public property and the Commodity Management Act (amended by Act No. 8423 of May 11, 2007) which had been enforced at the time of the completion of the registration of ownership transfer in the future of the plaintiff," and the part "the scope of the duty to return unjust enrichment" from No. 7 of the judgment of the first instance to No. 14 of the judgment is as stated in the reasoning for the judgment of the first instance except for the following:

[Completioned Parts]

B. Scope of return of unjust enrichment

The plaintiff asserted that even if the plaintiff paid the above settlement amount to the defendant in accordance with the defendant's settlement amount imposition, the defendant and Seoul Special Metropolitan City paid the defendant 5,195,837,040 won in total to the defendant on September 6, 2006 and July 16, 2009, it is impossible to separately calculate the settlement amount between the defendant and Seoul Special Metropolitan City, and it is impossible to individually calculate the settlement amount between the defendant and the Seoul Special Metropolitan City. The settlement amount of the part owned by the defendant and the Seoul Special Metropolitan City has the same economic purpose as the settlement amount of the purchase amount of the existing infrastructure. The plaintiff asserts that even if the plaintiff paid the above settlement amount to the defendant, the defendant and Seoul Special Metropolitan City are jointly and severally liable to return the above settlement amount to the plaintiff as unjust enrichment.

The plaintiff paid 5,195,837,040 won to the defendant on September 6, 2006, in accordance with the defendant's imposition of the settlement amount (the contract deposit), and 5,06,438,540 won on July 16, 2009, although there is no settlement amount to be paid to the defendants as the purchase cost for the existing infrastructure. Thus, the defendants, the owners of the existing infrastructure, should return to the plaintiff the settlement amount and the unjust enrichment equivalent to the damages for delay, unless there are special circumstances.

Article 10 (1) of the Enforcement Decree of the Public Property and Commodity Management Act (amended by Presidential Decree No. 20741 of Feb. 29, 2008) provides that "the head of a local government shall manage public property under his/her jurisdiction and may delegate his/her public property to the head of a Si/Gun/Gu, and the Special Metropolitan City Mayor, Metropolitan City Mayor or Do governor may delegate his/her public property to the head of a Gun/autonomous Gu to manage the relevant property." Article 10 (1) of the Enforcement Decree of the Public Property and Commodity Management Act (amended by Presidential Decree No. 20741 of Feb. 29, 2008) provides that "when the Special Metropolitan City Mayor, Metropolitan City Mayor or Do governor delegates the management and disposal of public property to the head of a Si/Gun/autonomous Gu pursuant to the provisions of Article 14 of the Act, 20 percent of the proceeds of sale of public property and the proceeds of sale of public property to the head of a Si/Gun/autonomous Gu, 10 percent or less of the following portion shall be forfeited:

In full view of the above provisions and the facts of recognition, the defendants can be deemed to have a delegation relationship with the purport that the Seoul Metropolitan Government delegates the authority to sell and sell the land in the city park of this case to the defendant, and to distribute a certain amount of remuneration under the above Enforcement Decree to the defendant. Thus, among the settlement amount in this case, the person to whom the benefit corresponding to the land in the city park of this case belongs among the settlement amount in this case shall be deemed to be the delegating Seoul Metropolitan Government. Since the person to whom unjust enrichment belongs shall be the party to unjust enrichment, the party to whom unjust enrichment belongs shall be the party to the settlement amount paid to the defendant, the parties to whom unjust enrichment belongs shall be deemed to be the party to unjust enrichment. Thus, the parties to the settlement amount paid by the plaintiff to the plaintiff shall be liable to the plaintiff ( even if the amount actually paid to the Seoul Metropolitan Government is the 26,560,680 won, this is merely the amount settled by the defendants' internal relations, and in relation to the plaintiff, the Seoul Metropolitan Government, which is the party to whom unjust enrichment belongs to the land in this case shall be returned).

Therefore, among the settlement amount paid by the Plaintiff to the Plaintiff, the Defendant has an obligation to pay 5,160,422,810 won [3,129,398,50 won + 2,031,024,310 won (2,066,438,540 won-35,414,230 won)] and its 3,129,398,50 won (3,129,398,500 won) from September 6, 2006 to February 26, 2010, the record clearly shows that the date when the complaint of this case was served to the Defendant, 5% per annum under the Civil Act, and 20% per annum from the following day to the date of full payment, 2,031,024,310 won per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, and 20% per annum from July 28, 2016.

2. Conclusion

Therefore, the plaintiff's claim against the defendant shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit. Among the judgment of the court of first instance, the part against the defendant exceeding the above amount ordered to be paid shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and the remaining appeal by the defendant shall be dismissed as it is so decided as per Disposition.

Judges Lee Han-ju (Presiding Judge)