[1] Where the operator of a public-service project sets the sales price of a re-resident's housing site at a certain amount at a discount from the cost of housing site development, the standard for determining whether the cost of basic living facilities is included in the sale price and the scope thereof, and the method for calculating the "amount calculated by deducting the cost of basic living facilities from the cost of housing site development / Whether the actual applied area should be the standard for determining the cost of housing site development, which is used as the basis of the determination of the cost of housing site

[2] In a case where a road installed in a public project zone cannot be deemed as an essential facility for the achievement of functions of a housing complex, etc. in the project zone and for the passage of all residents, whether the operator of the public project is included in the basic living facilities required to provide relocation measures (negative)

[3] Where the operator of a public-service project separately determines the sales price of the unsettled housing site by applying the gap within the discretionary scope, the gap rate to be reflected in the development cost of the individual unsettled housing site, the basic living facilities installation cost, and the reasonable sales price based thereon (=the difference between the development cost of the entire unsettled housing site subject to the secondary allocation and the per unit area of the individual unsettled housing site as a result of differential allocation)

[1] Where an executor of a public project sets the sale price of a re-resident's housing site at a discount of a certain amount, the determination of whether the sale price includes the cost of basic living facilities in the sale price through mutual relations, such as whether the sale price exceeds the amount obtained by deducting the cost of basic living facilities from the cost of creating the housing site. In this case, Article 78 (4) 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 "former Land Compensation Act") prohibits a project executor from paying the cost of basic living facilities to a person subject to the relocation measures, but does not stipulate the expenses that the project operator is able to actively bear or receive from the person subject to the relocation measures, and thus, it is not necessary to newly calculate the cost of basic living facilities from among the cost of creating the housing site which the project executor had used as the basis for the determination of the sale price of the housing site by deducting the cost of basic living facilities from the cost of creating the housing site.

In addition, the issue of whether the cost of creating a housing site, which is used as the basis for the determination of the cost of selling the housing site of migrants, should be excluded from the cost of building a housing site, is merely a dispute over the legitimacy of the calculation of the cost of building a housing site. Therefore, it cannot be said that there is a relationship between the cost of installing a basic living facility for those subject to relocation measures, and the project operator does not violate Article 78(4) of the former Land Compensation Act. Therefore, in calculating the amount of unjust enrichment equivalent to the cost of installing a basic living facility included in the cost of selling the housing site of migrants, the cost of building a housing site should be determined based on the amount actually applied when the project operator calculates the cost of building a housing site, which is used as the basis for the determination of

[2] Notwithstanding the length and width of a road for which a project executor is required to provide the basic living facilities to a person subject to relocation measures, a road corresponding to an arterial facility as stipulated in Article 2 subparagraph 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009), that is, a road located outside the relevant housing complex, includes a road that connects a road located outside the relevant housing complex with a same kind of road located outside the relevant housing complex, and also includes a road that a project executor is in charge of connecting a road located outside the relevant housing complex, etc. located outside the relevant housing complex within a public project zone, but it cannot be deemed that such road is an essential facility for the achievement of functions of the housing complex, etc. in the relevant project zone and for the passage of all residents.

[3] If the operator of a public-interest project individually determines the sale price of a multi-resident housing site by applying a gap within the discretionary scope, the development cost of the entire multi-resident housing site may be deemed to have been differentiatedly allocated to each multi-resident housing site in accordance with the conditions of the location. Therefore, when calculating the development cost and basic living facilities installation cost of each multi-resident housing site and the legitimate sale price based thereon, the relevant gap shall be calculated by reflecting the relevant gap. The purport of reflecting the gap lies only in maintaining equity among those who purchase multi-resident housing site and does not change the existence or scope of unjust enrichment to be returned to all those who are subject to relocation measures by reflecting the gap. Thus, the difference in this context should be the difference between the amount of the development cost of the entire multi-resident housing site subject to differential allocation and the amount per unit area of the individual multi-resident housing site, which is the result of differential allocation.

[1] Article 78 (1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 741 of the Civil Act / [2] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 2 subparagraph 8 (see current Article 2 subparagraph 10) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) / [3] Article 78 (1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 741 of the Civil Act

[2] Supreme Court Decision 2012Da3303 Decided September 26, 2013 (Gong2013Ha, 1937), Supreme Court Decision 2013Da29509 Decided July 23, 2015 (Gong2015Ha, 1202) / [3] Supreme Court Decision 2014Da6572 Decided August 20, 2014 (Gong2014Ha, 1801)

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

Plaintiff (Withdrawal)

Korea Land and Housing Corporation (Attorney Ansan-sik et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 2012Da84233 Decided January 23, 2014

Seoul High Court Decision 2014Na11842 decided November 21, 2014

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

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 on whether the housing site development cost is excluded from reserve funds, some underground lanes, bridges, and tunnels, and the disposal of the reduction area of urban support facilities site

A. In a special supply contract for a housing site concluded between a person subject to relocation measures and a project operator, if a person subject to relocation measures was to pay the project operator the cost of installing the basic living facilities as stipulated in Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Land Compensation Act”), thereby including the cost of installing the basic living facilities in the sale price, the portion of the special supply contract that included the cost of installing the basic living facilities in the sale price is invalid as it violates Article 78(4) of the former Land Compensation Act, which is a mandatory law (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

Meanwhile, in cases where a project operator sets the sales price of a re-resident at a certain amount at the cost of housing site development, whether the sales price exceeds the “amount obtained by deducting the installation cost of basic living facilities from the cost of housing site development” and the scope thereof should be determined. Article 78(4) of the former Land Compensation Act prohibits a project operator from paying the installation cost of basic living facilities to a person subject to relocation measures, but does not stipulate the expenses that the project operator may actively require the person subject to relocation measures or the details of the sales price that he/she may receive from the said person. As such, Article 78(4) of the former Land Compensation Act prohibits a project operator from paying the installation cost of basic living facilities to a person subject to relocation measures, and does not provide for the details of the sales price that he/she may receive from the person subject to relocation measures. As such, a project operator should calculate the “amount obtained by deducting the installation cost of basic living facilities from the cost of housing site development by means of deducting it from the cost of housing site development.” This does not

In addition, it is nothing more than dispute over whether the cost of creating a housing site, which is used as the basis for the determination of the cost of selling the housing site of migrants, should be excluded from the cost of constructing a housing site for the purpose of the calculation of the cost of building a housing site. Therefore, it cannot be said that there is a relation between the cost of installing a basic living facility for those subject to relocation measures, and the project operator does not violate Article 78(4) of the former Land Compensation Act. Therefore, in calculating the amount of unjust enrichment equivalent to the cost of installing a basic living facility, which is used as the basis for the determination of the cost of building a housing site for the sale of a housing site of migrants, the actual applied area should be the basis for the calculation of the cost of building a housing site for the purpose of calculating the cost

B. The lower court calculated “the amount obtained by deducting the cost of installing basic living facilities from the cost of creating the housing site,” which is compared with the sale price, by excluding the reserve fund, part of underground tea, bridge, and tunnel construction cost from the cost of creating the housing site without excluding the cost of creating the housing site from the cost of creating the housing site, and excluding the reduced cost of urban support facilities from the cost of supplying the housing site at a cost.”

The above decision of the court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the calculation of the cost of housing site formation or the cost of supply, nor in the misapprehension of legal principles as to the calculation of the cost of housing site formation,

Furthermore, the argument in the grounds of appeal that if urban support facilities reduced area was excluded from the paid supply area, the road site area should be calculated for the installation cost of basic living facilities including the installation area of basic living facilities, is the first assertion in the final appeal, and it cannot be a legitimate ground of appeal.

2. As to the grounds of appeal on the basic living facilities and the scope of their installation costs

A. As to the motorway

A road for which a project operator is required to provide a basic living facility to a person subject to relocation measures, notwithstanding its length or width, includes a road corresponding to an arterial facility defined in Article 2 subparag. 8 of the Housing Act, that is, a road connecting a road located outside the relevant housing complex with the same kind of road located outside the relevant housing complex (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road which is installed in a public-service zone by a project operator and is in charge of connecting a road located outside the relevant housing complex, etc. within the relevant project zone with the entrance of the housing complex, etc. and other roads located outside the relevant project district, but it cannot be deemed that it is included in a basic living facility, if there are special circumstances not to be deemed an essential facility for the achievement of functions of the housing complex, etc. and the passage of all residents (see Supreme Court Decision 2013Da29509, Jul. 2

Examining the reasoning of the judgment below in light of the above legal principles and records, although the reasoning of the judgment below is somewhat inappropriate, the conclusion of the court below that the light-line highway and the light-level Seoul Expressway installed in the project district of this case did not constitute a basic road for living facilities is just and acceptable, and there are no errors in the misapprehension of legal principles as to the scope of basic living facilities and violation of the Supreme Court precedents, as alleged in the grounds of appeal

In addition, the binding force of the judgment of remand is limited to the factual and legal judgment rendered by the court of final appeal on the grounds of reversal (see, e.g., Supreme Court Decisions 64Da1260, Jan. 19, 1965; 95Da12828, Jan. 26, 1996). After remanding the case, the lower court determined that the motorway did not constitute the basic living facilities as seen above does not conflict with the judgment of the court that reversed the judgment of the lower court on the grounds of the misapprehension of the legal principles on the binding force of the judgment of remand, etc., as alleged in the grounds of appeal. The lower court did not err by misapprehending the legal principles on the binding force of the judgment of remand, contrary to what is alleged in the grounds of appeal.

B. Regarding the expenses incurred in the items of roads, packings, street lamps, underground parking roads, tunnels, bridges, bridges (river bridges, etc.)

(1) The lower court determined that only the amount equivalent to the ratio of the road area, which is the basic living facilities to the total road area in the instant project district, among the construction cost of the road, appropriated as the construction cost of the housing site, and the construction cost of the packaging, street lamps, underground parking roads, tunnels, bridges, bridges (rivers, etc.), and bridges (hereinafter referred to as “road-related construction cost” in this part) appropriated as the construction cost of the housing site, among the total road area in the instant project district, constituted the basic living facilities installation cost.

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

According to the records, among the metropolitan transport measures (No. 36) the portion bearing financial resources (No. 36) stated that the name of the Yongsan-do Highway is changed to that of the project operator, and the co-implementers of the project of this case including the defendant, etc. bear the amount of KRW 40 billion out of the construction cost. ② The defendant appropriates the cost of KRW 40 billion in the item of the "Yuk-Yuk-Jak-Jak Road" in addition to the construction cost related to the road, in the housing site development cost. ③ The defendant argued that the cost related to the metropolitan roads or the roads should be excluded from the construction cost of basic living facilities. According to the details, the defendant stated that the construction cost of the road should be excluded from the construction cost of the underground roads, tunnels, bridges, and bridges (rivers) which is appropriated for the construction cost of the housing site, and that the construction cost of the road is not used at all. The construction cost of the road related to the road is not related to the construction cost of the road and the entire cost of the road.

Nevertheless, the court below did not properly examine this and determined that only a part of the construction cost related to roads is included in the construction cost of basic living facilities for the reasons stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on the scope of the installation cost of basic living facilities, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

C. As to the costs of building construction, cultural heritage inspection and excavation, wild tree planting construction, construction waste disposal, reserve items

Of the cost of housing site development, the cost of the item appropriated for the cost of housing site development is recognized to be related to the cost of the cost of the construction of basic living facilities, i.e., the cost of the cost of the construction of basic living facilities, and the cost of the cost of the construction of basic living facilities within the ratio of the cost of the whole or total project area of the cost of the construction of basic living facilities. The cost of the relation is deemed to be included in the cost of the cost of the basic living facilities within the scope of the cost of the construction of basic living facilities, and the burden of proof of the relation is the party asserting that

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below's determination that the expenses of structures, cultural heritage investigation and excavation expenses, wild tree planting construction expenses, and construction waste disposal items are not included in the cost of establishing basic living facilities on the grounds as stated in its reasoning is just and acceptable. In so doing, contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles

However, the lower court determined that the cost of the reserve fund item is not included in the cost of establishing basic living facilities, but it is difficult to accept such determination for the following reasons.

According to the records, it can be known that the cost of reserve fund item is an item of expenses appropriated in preparation for unexpected construction works at the time of calculating the cost of construction of housing site among the construction of housing site. Therefore, it is reasonable to deem that the expense of construction of basic facilities equivalent to the ratio of the cost of construction of basic facilities out of the total project area is the cost of construction of basic facilities. This part of the judgment of the court below is erroneous in the misunderstanding of legal principles as to the scope of

3. As to the grounds of appeal on the method of reflecting the gap rate

Where a project operator separately determines the sales price of a resettled housing site by applying a gap within the discretionary scope, the development cost of the entire resettled housing site may be deemed to have been differentiatedly allocated to each resettled housing site in accordance with the conditions of the location. Therefore, when calculating the development cost, basic living facilities installation cost, and reasonable sales price for an individual resettled housing site based thereon (see Supreme Court Decision 2014Da6572, Aug. 20, 2014). The purport of reflecting the gap lies only in maintaining equity between the persons subject to the relocation measures who purchase the resettled housing site, and the existence or scope of unjust enrichment that the project operator should return to all the persons subject to the relocation measures is not different due to the reflection of the gap. Thus, the difference that should be reflected in this context should be the difference per unit area between the amount of the development cost of the entire resettled housing site subject to differential allocation and the amount of the purchase price of the individual resettled housing site, which is the result of differential allocation.

According to the reasoning of the judgment below and the record, ① the Defendant determined the unit price for supply of the housing site for the migrants (hereinafter referred to as “the unit price for the housing site for the housing site for the housing site for the housing site for the housing site for the housing of the individual migrants” as KRW 1,691,804 per 1 square meter, and calculated the “area subject to the gap rate” by multiplying the area of the housing site for the individual migrants by the gap rate calculated through comparison with the standard price for the housing site for the housing site for the housing of the individual migrants (hereinafter referred to as “distance difference rate”). The Defendant determined the unit price for the housing site for the individual migrants by the proportion occupied by the “area subject to the gap rate” of the total area of the housing site for the entire area for the housing site for the entire area of the migrants by the unit price for the housing site for the housing of the individual migrants, and ② as above, there is a difference between the distance rate used in the process of determining the unit price for the individual housing site for the housing site for the individual migrants.

Examining these facts in light of the legal principles as seen earlier, the gap rate to be reflected in the process of determining whether the cost of basic living facilities was included in the sale price of the individual migrants of this case is not the remote difference rate but the adjustment gap rate.

Therefore, the lower court’s judgment that determined whether to transfer the cost of the basic living facilities by reflecting the adjustment gap rate is justifiable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the method of reflecting the gap in the calculation of unjust enrichment.

4. 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)