Jung-dong District Housing Development and Improvement Project Association (Law Firm Cheongn Law, Attorney Choi Chang-il, Counsel for defendant-appellant)

Korea

July 2, 2009

Busan District Court Decision 2008Gahap3250 Decided February 5, 2009

1. Of the judgment of the court of first instance, the part of the plaintiff's failure corresponding to the money ordered to be paid below shall be revoked.

The defendant shall pay to the plaintiff 327,537,00 won with 5% interest per annum from August 8, 2008 to August 13, 2009, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

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

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 327,537,00 won with 20% interest per annum from the day after the delivery date of the complaint of this case until the day of complete payment.

1. Basic facts

The court's reasoning for this part is that "No. 14 and No. 15 of the judgment of the court of first instance" was stated as "No. 11, 14, and 15 of the judgment of the court of first instance" and "The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "Urban Improvement Act")" as "the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7678 of Aug. 4, 2005)" and "the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "Urban Improvement Act")" as "the latter Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "Urban Improvement Act")", and the latter Act on the fourth part after the third part of the judgment of the court of first instance presented an appraisal on July 12, 2006, which is the date of the public notice of the project approval of the project of this case."

2. The plaintiff's assertion

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and therefore, it refers to the corresponding part of the reasoning of the judgment of the court of first instance.

3. Determination

A. Whether the sales contract of this case is null and void as a violation of mandatory law

1) First of all, Article 66(4) of the Act on the Maintenance and Improvement of Urban Areas provides that the State-owned or public property in the rearrangement zone may be sold or leased to the project implementer, occupant or user by means of a free contract prior to the expropriation of the State-owned land in accordance with Article 38 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas. This is a measure that the project implementer may take prior to the expropriation of the State-owned land in this case. Contracts entered into pursuant to the provision in this case are private trade in its nature. Thus, in determining the purchase price, the contracting party can freely determine the price

However, the former part of the main text of the provision of this case provides that the evaluation of state-owned or public land to be sold for the purpose of a rearrangement project under Article 66 (4) of the above Act shall be conducted on the basis of the date of public announcement of authorization for project implementation. The latter part of the provision provides that the sale price shall be 80/100 of the above evaluation amount in the case of a residential environment improvement project. Considering the literary interpretation of the provision of this case, the order and structure of the provision of this case following Article 6 (4) of the Act, and the legislative purpose of the Act, the former part shall not be simply the evaluation of state-owned or public land, but the price assessed under the purport of the above provision shall be determined as the sale price. As seen earlier, in the case of sale under private law, the provision of state-owned or public land shall be deemed to be the sale price of state-owned or public land, and the purpose of the provision of the Act on the Evaluation of State-owned or public land shall be deemed to be unreasonable and to prevent the sale price of state-owned or public land from being sold.

2) Therefore, the appraisal result of this case calculated a price higher than the appropriate level by based on the land to be used in the future in violation of the instant provision, which had to evaluate the state-owned land as of the date of public notice of project implementation authorization, based on the current usage status as of the date of public notice of project implementation authorization. The part of the instant sales contract, which determined the purchase price according to the appraisal result, exceeding the appropriate

B. Establishment of claim for restitution of unjust enrichment and scope of the amount of profit to be returned

1) If a part of a juristic act is null and void, the whole juristic act must be null and void, but if such null and void part is deemed to have been engaged in the juristic act even if there is no such null and void part, the rest shall not be null and void (Article 137

Since it is reasonable to view that the Plaintiff Union, even if there was no such invalid portion, has concluded the instant sales contract within a reasonable scope of the sales price, the instant sales contract is valid within a reasonable scope of the sales price, and the Defendant is obligated to return the sales price corresponding to the invalid portion to the Plaintiff Union as unjust enrichment.

2) As to the amount of unjust enrichment that the Defendant is obligated to return to the Plaintiff Cooperative, it is reasonable to view that the amount of the pertinent State-owned land is KRW 135,513,000,00, which is calculated on July 12, 2006, which is the date of public announcement of authorization for project implementation pursuant to the instant provisions, as the price base (i.e., the date of public announcement of authorization for project implementation pursuant to the instant provisions, as the current status of the use of the instant State-owned land (i.e., the 358,500,000, which is an arithmetic average of the respective appraisal results of the Dong State’s appraisal and the ASEAN appraisal x 378 square meters x 378 square meters). As such, the amount of unjust enrichment that the Defendant is obligated to return to the Plaintiff is 327,537,000,00

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the amount of unjust enrichment of KRW 327,537,00 and damages for delay calculated by the ratio of 5% per annum as stipulated in the Civil Act from August 8, 2008, which is the day following the delivery date of the complaint of this case, to August 13, 2009, the date when the defendant rendered a substantial judgment to dispute the existence and scope of the right to claim the return of unjust enrichment of this case, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair, it is ordered to revoke the part of the plaintiff's plaque corresponding to the above payment order among the judgment of the court of first instance to order the defendant to pay the above amount, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition

Judge Han-chul (Presiding Judge)