2014Da60590 Unlawful gains

2014Da60606 (Consolidated) Return of unjust enrichment

2014Da60613 (Consolidated) Return of Unjust Enrichment

The list of plaintiffs (Appellants) is as shown in the attached Table.

20.N;

21. A Q.

22, AT

23. AV;

24.AZ.

25. BA

26,BF

27. BH.

Es. Es.S.P

Seoul High Court Decision 2014Na4639, 2014Na4646 (Joint) decided July 23, 2014;

2014Na4653 (Consolidated Judgment)

September 24, 2015

The part of the judgment of the court below against the defendant against the plaintiff N, Q, AT, AV, AZ, BA, BF, and BH shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiffs' appeals are dismissed.

The costs of the remaining plaintiffs except the plaintiffs N, Q, AT, AV, AZ, BA, BF, and H are assessed against the other plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by the plaintiff P, AJ, K, AL, AM, AO, AP, ASS, AS, AU, AY, AY, BB, BD, BE, BG, and BI

A. Article 78(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter referred to as the "former Land Compensation Act") provides that a project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for persons who are deprived of their base of livelihood as a result of providing residential buildings due to the implementation of public works (hereinafter referred to as "persons subject to relocation measures"). Meanwhile, Article 40(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20722 of Feb. 2, 2008; hereinafter referred to as the "former Enforcement Decree of the Land Compensation Act") provides that "the owners of buildings who have not resided continuously from the date of public announcement, etc. under the relevant Act and subordinate statutes for the public works to the date of conclusion or adjudication of expropriation shall be excluded from the persons subject to relocation measures (hereinafter referred to as "unresident owners"), but it is permitted to establish the scope of persons subject to relocation measures as prescribed by the Act.

However, even if a project implementer is included in a person subject to relocation measures beyond the scope of a person subject to relocation measures under Article 78(1) of the former Land Compensation Act and Article 40(3) of the former Enforcement Decree of the Land Compensation Act, the relocation measures provided to a non-resident owner, etc. who is not a person subject to relocation measures as prescribed by the Act and subordinate statutes shall be deemed mutually beneficial, not as a duty under the Act and subordinate statutes. Therefore, it cannot be deemed that a project implementer is obliged to install basic living facilities for such non-resident owners pursuant to Article 78(4) of the former Land Compensation Act (see Supreme Court Decision 2012Da109811, Sept. 4, 2014).

B. The lower court determined as follows: (a) even if the buyers who comprehensively transferred the claim for return of unjust enrichment arising in relation to each of the instant sales contracts to some of the Plaintiffs or the rest thereof are designated as the subject of relocation measures according to the Defendant’s relocation criteria, and thus, (b) they were specially sold, Article 40(3)2 of the Enforcement Decree of the Land Compensation Act.

On the ground that "the owner of a building who does not continue to reside in the building from the date of public notification under the relevant laws and regulations for public works to the date of conclusion of the contract or the date of adjudication on expropriation" is not a person subject to the relocation measures under the former Land Compensation Act, the establishment of the right to claim restitution of unjust enrichment equivalent to the cost of installing the basic living facilities included in

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the validity of designation of a person subject to relocation measures

2. As to the grounds of appeal by the Plaintiff N, Q, AT, AV, AZ, BA, BF, and BH

A. The lower court determined that among infrastructure installation costs, the cost of building roads connecting main entrances of roads outside a housing complex with main entrances of a housing complex cannot be deemed as the cost of building roads, and rather, the cost of building roads, etc. installed outside a housing complex constitutes construction cost of roads, etc. installed outside a housing complex, and that such cost does not constitute “basic living facilities according to the relevant regional conditions” under Article 78(4) of the former Land Compensation Act, which should be naturally provided to a person subject to relocation measures

B. Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles or incomplete hearing as alleged

3. As to the Defendant’s ground of appeal

A. As to the ground of appeal on roads

(1) A road that a project implementer is required to provide basic living facilities to a person subject to relocation measures shall, notwithstanding its length or width, include roads corresponding to arterial facilities as stipulated in Article 2 subparag. 8 of the Housing Act, namely, roads linking roads outside the relevant housing complex to roads of the same kind outside the relevant housing complex. A road installed within a public works zone by a project implementer, which is in charge of the entrance of a housing complex, etc. in the relevant housing complex, and other functions connected to roads outside the relevant project district, shall also be included in such roads (see Supreme Court Decisions 2012Da3303, Sept. 26, 2013; 2013Da29509, Jul. 23, 2015).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, we affirm the judgment of the court below that all roads newly constructed by the defendant in order to connect roads within a housing complex to roads of the same kind outside the housing complex during the implementation of an urban development project constitutes roads requiring relocation measures to be provided as basic living facilities to the person subject to relocation measures, and there is no error of law such as misunderstanding of legal principles as to the scope of roads falling under basic living facilities and violation

(2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s determination that the road site cost and the road packing cost were included in the sale price is just and acceptable. In so doing, it did not err by misapprehending the legal principles as to the duty to return unjust enrichment related to the road site cost and the road packing cost

(3) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s determination that the site cost for the overlapping part with the existing road among the newly constructed roads was included in the sale price is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the calculation of the cost of basic living facilities where the newly constructed roads overlap with the existing roads

B. As to the ground of appeal on the costs of underground facilities, the lower court determined that the costs of underground facilities are included in the cost of installing basic living facilities according to the regional conditions, as the ground of appeal on the costs of underground facilities is general, around 2003 for which the development plan of the project of this case is to be approved.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, the legal principles as to the costs of underground facilities installed.

There is no error of misunderstanding of the rules of evidence, violation of the rules of evidence, etc.

(1) According to Article 23 of the former Urban Development Act (amended by Act No. 8376, Apr. 11, 2007; hereinafter the same), Article 78(1) of the former Land Compensation Act, and Article 40(3)2 of the former Enforcement Decree of the Land Compensation Act, a project implementer shall establish and implement relocation measures or pay resettlement funds (hereinafter referred to as "establishment of relocation measures") for persons who lose their base of livelihood as a result of providing residential buildings due to the implementation of an urban development project, as prescribed by the Enforcement Decree of the former Land Compensation Act, for those who lose their base of livelihood as a result of providing residential buildings due to the implementation of an urban development project. However, the owner of a building who fails to continuously reside from the date of public notice, etc. under the relevant Act and subordinate statutes to the date of conclusion or the date of adjudication of expropriation shall be excluded

Meanwhile, Article 21(2) of the former Urban Development Act provides that the Land Compensation Act shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project, except as otherwise provided for in the above Act. While the former Land Compensation Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree, the main text of Article 78(4) provides that "the details of relocation measures shall include basic living facilities at a normal level (hereinafter referred to as "basic living facilities"), such as roads, water supply facilities, drainage facilities, and other public facilities, in the resettlement area (including a housing complex constructed by the implementation of relocation measures), and directly provides that the project operator shall bear the expenses incurred in establishing and implementing relocation measures."

In cases where the Land Expropriation Act is to be applied mutatis mutandis to the land expropriation procedure in addition to the public announcement of project approval under the relevant Act, the public announcement of the project approval may be included not only in the public announcement of the project approval but also in the public announcement date (see, e.g., Supreme Court Decision 2007Du13340, Feb. 26, 2009). However, the standard for determining whether a person is a person subject to relocation measures as prescribed by the relevant Act and subordinate statutes should be individually specified in accordance with the relevant Acts and subordinate statutes based on each public project. Since the application of the Act and subordinate statutes regarding the establishment, etc. of relocation measures, it is reasonable to interpret the legal base date for relocation measures as one of the criteria for each individual Act and subordinate statutes. If the project operator can choose one of them as a matter of mind, it is not desirable that the criteria for each project would lead to confusion and undermine equity.

In addition to these circumstances, in full view of the procedures for the progress of public works under the former Urban Development Act and the policy needs to prevent speculative transactions due to the implementation of such projects, it is reasonable to deem that the legal relocation measures corresponding to the "date on which the public notice, etc. is made under the relevant Acts and subordinate statutes for public works" in an urban development project is the date of public inspection as to the designation of an urban development zone under Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18738, Mar. 12, 2005); based on this, it is reasonable to deem that the designation

Article 78(4) of the former Land Compensation Act, which requires a project operator to install basic living facilities and bear the expenses, shall not be deemed to apply to a person subject to measures for resettlement as prescribed by the Act (see Supreme Court Decision 2015Da14672, Jul. 23, 2015).

(2) Nevertheless, the court below did not set July 9, 2003, which was the date when the Seoul Special Metropolitan City Mayor made the public inspection announcement for the designation of AE city development zone in accordance with Article 7 of the Urban Development Act and Article 9-2 of the Enforcement Decree of the Urban Development Act, as the statutory relocation measures base date for which the defendant made the public announcement of the compensation plan on October 8, 2004 as the statutory relocation measures base date. Thus, the court below erred by misapprehending the legal principles on "the date when the public announcement, etc. under Article 40 (3) 2 of the former Land Compensation Act was made in accordance with the Public Works Act", which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

D. As to the grounds of appeal on the point of time for calculating the cost of housing site creation, which served as the basis for determining the sale price

(1) According to the reasoning of the lower judgment and the record, the following facts are revealed: (a) the modification of the development plan and the modification of the implementation plan of the GL AE Urban Development Zone announced by the Seoul Special Metropolitan City on April 9, 2009 after October 2008, which entered into each of the instant sales contracts with respect to the persons subject to relocation measures, and the change of the road area to 162,670 square meters, and the pedestrian road area to 2,792 square meters.

According to the above facts, after calculating the cost of housing site development in the project district of this case, the road area was changed to 162,670 meters according to the development plan and implementation plan, and the area of pedestrian road was changed to 2,792, and such change did not affect the calculation of the sale price. Therefore, it is reasonable to deem that the calculation of the defendant's unjust enrichment should not be considered.

(2) Nevertheless, the court below calculated road site costs on the premise that the road area is 162,670 meters and pedestrian road area is 2,792 meters. In so doing, the court below erred by misapprehending the legal principles on the base point of time for calculating the cost of basic living facilities, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

E. As to the ground of appeal on the calculation method of road site cost

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is reasonable that the court below applied the ratio of the road area, which deducts a square of the remaining area from the total road area of a project district after deducting 64,459 square meters of the retained area from the total area of a project district in calculating the site cost for basic living facilities, to the total area of a project district on the land utilization plan. There is no error in the misapprehension of legal principles as to the calculation method of

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant against the plaintiff N, Q, AT, AV, AZ, BA, BF, and BH is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal is dismissed. The costs of appeal against the plaintiff, N, Q, AT, AV, AV, AZ, BA, BF, and B are assessed against the remaining plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Park Sang-hoon

A person shall be appointed.

A person shall be appointed.