2013da89006 Unlawful gains

It is as shown in the attached list of plaintiffs.

Korea Land and Housing Corporation

Seoul High Court Decision 2012Na66855 Decided October 17, 2013

February 27, 2014

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the ground of appeal on the cost of establishing basic living facilities

A. According to Article 78 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665, Jan. 10, 2007; hereinafter “former Public Works Act”), a project operator shall establish and implement the relocation measures for persons subject to the relocation measures as prescribed by the Presidential Decree, or pay the resettlement funds as prescribed by the Presidential Decree (Paragraph 1). The details of the relocation measures include the installation of basic living facilities in accordance with the relevant local conditions, such as roads, water supply facilities, drainage facilities, and other public facilities in the resettlement settlement area, and the cost necessary therefor is borne by the project operator (main sentence of Paragraph 4). Accordingly, if a project operator transfers the cost of the basic living facilities that he/she should bear to the person subject to the relocation measures, he/she shall be obligated to return them

B. Based on its stated reasoning, the lower court determined that the site cost and appurtenant work cost of the water supply site, the pressure plant, the sewage treatment plant, and the traffic plaza constituted the cost of establishing basic living facilities.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the scope of the cost of installing basic living facilities. Meanwhile, although the court below determined that the cost of installing basic living facilities constituted the cost of installing basic living facilities, it is difficult to accept

If a project operator supplies a site corresponding to the area of the relevant electric facilities to a person who supplies electricity for a cost more than the cost of housing site development, the cost of the site shall not be deemed to have been transferred to the sale price, and it shall not be included in the cost of installing basic living facilities.

However, according to the statement of Eul evidence No. 7, there is sufficient room to view that the defendant, the main agent of the housing site development project of this case, has supplied the transformation site to the Korea Electric Power Corporation, which is the power supplier.

Nevertheless, the court below, without examining the above properly, determined that the land cost is included in the cost of basic living, on the premise that the land for a substation was supplied without compensation. In such a case, the court below erred by misapprehending the legal principles on the scope of the cost of basic living facilities or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal that points out this out

2. As to the argument in the grounds of appeal on the starting point of interest in arrears

A. The lower court determined that the Defendant is liable to pay the Plaintiffs unjust enrichment calculated by the method as indicated in its holding by adding statutory interest rate of 5% per annum as stipulated in the Civil Act to the date following the date of final payment of the sales price in the instant sales contract, which is reasonable for the Defendant to the date of final payment of the sales price in the

B. However, the lower court’s determination is difficult to accept for the following reasons.

Article 748(2) of the Civil Act provides that a malicious beneficiary shall compensate for any loss, if he/she returns the profit with interest added thereto, and Article 749(2) of the same Act provides that a bona fide beneficiary shall be deemed a malicious beneficiary from the time when the lawsuit is brought against the bona fide beneficiary. In such cases, the fact that the beneficiary is a bona fide beneficiary shall be proved by the claimant, and "when a lawsuit is brought" refers to when a copy of the complaint has been delivered to the defendant.

Therefore, if the Defendant’s return of unjust enrichment against the Plaintiffs is partially recognized, the lower court should have examined whether there is evidence to acknowledge that the Defendant was maliciously, and if it is difficult to recognize it, the lower court should have ordered the Defendant to pay interest or delay damages from the time when the duplicate of the instant complaint was served on

Nevertheless, the court below did not properly examine this, and judged that the defendant is liable to pay legal interest from the day after the date of the final payment of the purchase price under the contract for sale in this case on the premise that it is bad faith. Thus, the court below erred by misapprehending the legal principles on the starting point of interest to be returned together with unjust enrichment or by failing to exhaust all necessary deliberations, which affected the conclusion

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Yang Chang-soo

The Chief Justice Park Jae-young