[1] Whether the area of the preserved site should be excluded from the total project area when calculating the basic site cost for living facilities in the public works (affirmative)

[2] In a case where a project proprietor of a public works project included a site corresponding to the site in the cost supply area at the time of calculating the cost of housing site development in order to provide the gas supplier with a site for gas supply facilities, etc. to the relevant area (negative in principle)

[3] Whether the total amount of the cost of construction for the installation of basic living facilities in the public works project constitutes the cost of construction for the installation of basic living facilities (affirmative), and the method of calculating the cost of construction for the installation of basic living facilities in the remainder of the cost of construction for the public works project / Where the amount of the cost of construction for the basic living facilities, such as roads and waterworks and sewerage, is unclear, the method of calculating the cost of construction for the basic living facilities

[4] The requirements and scope of the cost of housing site development to be included in the cost of basic living facilities and the burden of proof (=person claiming that the cost of basic living facilities is the cost of basic living facilities)

[1] The retention site is a site that the executor of a public-service project considers that there is no obstacle to the development project even if he/she fails to relocate or remove existing buildings or other facilities in the project district, and is excluded from the object of acquisition through consultation, expropriation, or free acquisition, and is not included in the object of free reversion for the installation of public facilities. As the cost of housing site development is calculated by the method of “total project cost ± collectively owned area,” the cost of housing site development is not substantially implemented. The existence or size of the retention site does not affect the calculation of the cost of housing site development; if the area of the retention site is included in the total project area, it is reasonable to exclude the area of the retention site from the total project area when calculating the cost of the basic housing facilities depending on the area of the retention site even if all the contents of the project are identical, in full view of the following:

[2] In a case where a project undertaker included a site corresponding thereto in the cost supply area at the time of calculating the cost of housing site development in order to provide a person who supplies gas, heating, or electricity to the relevant area as a site for gas supply facilities, integrated energy supply facilities, substations, etc., the cost of housing site development should not be charged to the cost of housing site construction, barring any special circumstances.

[3] Since roads and waterworks and sewerage facilities constitute a basic living facility, the total amount of the cost for road construction and packing construction, and the cost for waterworks and sewerage construction constitutes the cost for construction for the installation of basic living facilities. Of the total cost for civil construction, the remaining cost excluding the cost for construction for the installation of basic living facilities constitutes the cost for construction for the installation of basic living facilities within the scope of the ratio of the area for the installation of basic living facilities to the total project area, i.e., the cost for installation of basic living facilities within the scope of the area for the total project area. In addition, in cases where the amount of the cost for installation of basic living facilities, such as roads, waterworks and sewerage, is unclear, it is inevitable to estimate the cost for installation of the basic living facilities within the scope of objectivity and rationality within the extent that does not go against logical and empirical rules. However, the method of estimating the cost for installation of the basic living facilities within the scope of the area for the total project area among the total cost for civil construction works can be calculated at least the amount calculated in accordance with the above calculation method.

[4] The cost of the item included in the cost of housing site development in the cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of basic living facilities, namely, the relevant cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of basic living facilities, within the percentage of the cost of cost of cost of

[1] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007) / [2] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007) / [3] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007), Article 202 of the Housing Act / [4] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007), Article 288 of the Civil Procedure Act

[3] Supreme Court Decision 2012Da30823 Decided September 26, 2013 (Gong2013Ha, 1932)

As shown in the List of Plaintiffs and Intervenors (Attorney Kim Sung-won, Counsel for the plaintiff-appellant)

Plaintiff (Withdrawal) 1 and 3 others

Korea Land and Housing Corporation (Law Firm, Attorneys Lee Jae-type et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na44398 decided July 18, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the disposal of the retention site area in calculating the cost of basic living facilities

In order to calculate part of the cost of sites for basic living facilities and the cost of creating the relevant basic living facilities, the lower court, using the method of multiplying the total cost of site or the cost of creating the relevant infrastructure ± the installation area of basic living facilities ± the entire area of the instant project district, including the retention site area, was regarded as the “total project area.”

(1) However, the retention site is a site that is deemed as not impeding a development project even if a project implementer fails to relocate or remove existing buildings or other facilities in the project district, and is thus excluded from the object of acquisition through consultation, expropriation, or gratuitous acquisition, and is not included in the object of gratuitous reversion for the installation of public facilities, and thus, the project implementer actually implements the project. ② The cost of housing site creation is calculated by the method of “total project cost ¡Àcollectively owned area,” and thus the existence of the retention site or the size of the area does not affect the calculation of the cost of housing site creation; ③ If the area of the building site is included in the total project area, it is reasonable to exclude the retention site from the total project area, taking full account of the fact that there is an unreasonable result that the cost of housing facilities installation varies depending on the area of the retention site even if all the contents of the project are identical, excluding the area of

Nevertheless, the lower court erred by misapprehending the legal doctrine on the method of calculating the cost of installing basic living facilities, thereby adversely affecting the conclusion of the judgment.

2. Regarding the scope of the basic living facilities and their installation costs

A. As to the traffic plaza

For the reasons indicated in its holding, the lower court determined that the remainder of the station square, excluding the intersection square that can be seen as part of a road among the transport squares, cannot be deemed as the basic living facilities.

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 there is no error in the misapprehension of legal principles as to the scope of basic living

The Supreme Court precedents cited in this part of the grounds of appeal are inappropriate to be invoked in this case, since they differ from this case.

B. As to the cost of integrated energy supply facilities, substations, and sewerage land

If a project undertaker includes a site corresponding to the site for gas supply facilities, integrated energy supply facilities, transformation stations, etc. in a cost supply area at the time of calculating the cost of housing site development in order to provide the supplier of gas, heating, or electricity to the relevant area as a site for the supply of gas, heating, or electricity, the cost of the site is not transferred to the sale price, barring any special circumstances. Therefore, it shall not be included in the cost of construction of basic facilities

According to the reasoning of the judgment below and the records, the defendant can find out the fact that part of the site for collective energy supply and substation and sewerage are included in the cost supply area at the time of calculating the cost of the construction of the housing site and that the project operator supplied the cost at least the cost of the construction of the housing site. Therefore, the court below's exclusion from the cost of the site from the cost of the basic living facilities is justifiable in accordance with the aforementioned legal principles, and there is no

C. Regarding the urban infrastructure construction cost

(1) The lower court determined that: (a) the Defendant’s confession with respect to road construction expenses is lawfully revoked; (b) the instant urban infrastructure construction expenses consisting of housing site preparation expenses, road construction expenses, water supply and sewerage construction expenses, and other construction expenses; (c) the instant urban infrastructure construction expenses consist of the water supply and sewerage construction expenses, and the water supply and sewerage construction expenses, but the Defendant cannot specify road construction and packing construction expenses due to the failure to classify the amount by detailed item; (d) the amount equivalent to the ratio of the area of road construction to the total project area to the total project area, out of the amount excluding the water supply and sewerage construction expenses; and (e) the estimated road construction and packing construction expenses and the water supply and sewerage construction expenses specified as the basic facilities installation expenses; and (e) the remainder of the urban infrastructure construction expenses, other than those, cannot be deemed to include the basic facilities installation expenses for roads and water supply and sewerage; and therefore, the amount of the basic living facilities installation expenses, which can be additionally recognized from the urban infrastructure construction expenses (civil engineering).

(2) Judicial confession refers to a statement of facts unfavorable to himself/herself, consistent with the allegations by the other party on the date of pleading or on the date of preparation procedure, and confession of indirect facts is not binding upon the court or the party (see, e.g., Supreme Court Decision 2013Da213823, Mar. 13, 2014).

In the instant case where the Plaintiffs seek return of unjust enrichment on the grounds that the cost of basic facilities was fully paid to the sale price of a resettled housing site that was specially supplied at 70% of the development cost, the establishment of unjust enrichment and its scope are determined through mutual relations, such as whether the sale price exceeds the remainder after deducting the amount of the cost of basic facilities from the development cost. Therefore, it is difficult to view that the amount by detailed item of the civil construction cost, which is merely a basis for calculating the cost of installation of basic facilities, is a major fact. In light of the records, it is recognized that the Defendant’s statement on the amount of construction cost is contrary to the truth and due to mistake. Accordingly, the part of the grounds for appeal on the ground that the Defendant’s confession on the amount of the construction cost, among the allegations in the grounds for appeal

(3) However, it is difficult to accept the judgment of the court below for the following reasons.

As roads and waterworks and sewerage facilities constitute a basic living facility, the total amount of the cost of construction for the construction for the construction of basic living facilities falls under the cost of construction for the construction of the basic living facilities. Of the total cost of construction for civil works, the remainder of the cost of construction excluding the cost of construction for the construction of the basic living facilities falls under the cost of construction for the construction of the basic living facilities within the scope of the ratio of the area where the basic living facilities are installed for the total project area (see Supreme Court Decision 2012Da30823, Sept. 26, 2013). In addition, in cases where the amount of the cost of construction for the basic living facilities, such as roads, waterworks, and sewerage, is unclear, it is inevitable to estimate the cost of construction for the basic living facilities among the total cost of construction for civil works by a method with objectivity and rationality within the extent that does not go against logical and empirical rules, but the method of estimating the cost of construction for the basic living facilities to the extent of the area where the basic living facilities are installed among the total cost of construction for civil works can always be calculated as above.

According to the reasoning of the judgment below and the record, ① the data on the contract cost of the civil construction work (Evidence B No. 3-2) that was the basis of the preparation cost submitted by the Defendant is divided into the contract cost portion and the non-contract portion between the contract cost and the contract amount of the non-contract amount of KRW 2,12.1 billion among the contract amount of KRW 286.3 billion among the contract amount of the contract amount of KRW 286.1 billion, and ② the Defendant submitted the contract document (Evidence B-1, 2) accompanied by the detailed statement in relation to the urban-based construction cost. Thus, the Defendant is likely to retain the contract amount of the construction work cost of the civil construction work and its detailed statement, and it appears that the amount of the contract amount of the road construction cost and the construction cost of the road construction work included in KRW 2,12.1 billion can be determined at least.

Nevertheless, the lower court acknowledged the amount equivalent to the ratio of the area of road construction to the total project area among the urban infrastructure construction cost (excluding the construction cost for road construction and packing in the original adjudication) construction cost (hereinafter in this part, referred to as “civil construction cost”) without specifically examining the construction cost for road construction and packing among the urban infrastructure construction cost (civil engineering), on the grounds stated in its reasoning that the Defendant did not divide the amount by specific items. In addition, the lower court determined that the portion of the construction cost for road construction to the total project area is not included in the civil construction cost at the time of original adjudication, while recognizing that the construction cost for road construction and packing is also included in the civil construction cost at the time of original adjudication, the lower court did not include the construction cost for the construction of basic living facilities in the remainder, other than the road construction cost and packing construction cost anticipated from the cost of original adjudication. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of

D. As to the public charges on the Korean War

Of the cost of housing site development, the cost of the item appropriated for the cost of housing site development shall be recognized as the cost of the cost of the cost of the basic living facilities, namely, the relationship between the cost of the cost of the basic living facilities and the cost of the cost of the basic living facilities, but the cost of the basic living facilities shall be included in the cost of the basic living facilities within the ratio of the cost of the basic living facilities to the total or total project area, and the burden of proof

Examining the reasoning of the judgment below in light of the above legal principles and records, in this case where there is no evidence to acknowledge the relevance between the public charges and the installation of the basic living facilities in Korea, the conclusion of the court below that the public charges in Korea are not included in the installation cost of the basic living facilities is just and acceptable. In so doing, contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the scope of the installation cost of the basic living

E. Regarding direct personnel expenses, sales expenses, general management expenses, and capital expenses

The lower court calculated the direct personnel expenses, sales expenses, general management expenses, and capital expenses, respectively, corresponding to the cost of basic living facilities installation in a certain proportion to the total amount of site expenses and creation expenses for basic living facilities.

However, as seen earlier, when calculating the cost of the site for basic living facilities and the cost of the creation thereof, the scope of the “total project area” should be excluded from the “total project area,” and the cost of the construction of the basic living facilities among the urban-based construction cost should be re-calculated. Accordingly, the amount by each item should be re-calculated accordingly.

In conclusion, the judgment of the court below on this part is erroneous by misapprehending the legal principles on the calculation of cost of basic living facilities, etc.

3. Conclusion

Therefore, the lower judgment is reversed, and 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.

[Attachment] List of Plaintiffs and Intervenors succeeding to Plaintiff: Omitted

Justices Jo Hee-de (Presiding Justice)