(영문) 대법원 2017.12.22.선고 2015다202292 판결

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. 11017, Aug. 4, 2011; hereinafter “former Public Works Act”), a project operator for a person who is deprived of his/her base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter “person subject to relocation measures”), as prescribed by the Presidential Decree, for the person who is deprived of his/her base of livelihood due to

The relocation measures shall be formulated and implemented or the resettlement subsidies shall be paid (paragraph (1)), and the details of the relocation measures shall include the basic living facilities at an ordinary level, such as roads, water supply facilities, drainage facilities, and other public facilities, for the resettlement area, and the expenses incurred therein shall be borne by the project operator (the main sentence of paragraph (4)).

The purpose of the above provision is to provide the person subject to the relocation measures with the basis of living.

Therefore, “Basic Living Facilities” under the foregoing provision shall be deemed to mean key facilities, such as roads, water supply and drainage systems, electric facilities, communications facilities, gas facilities, and district heating facilities, which are to be installed by a project proprietor who implements a housing construction project or a housing site development project pursuant to the relevant statutes, such as Article 23 of the former Housing Act (amended by Act No. 11243, Jan. 26, 201) (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 201).

A plaza is not included in the items of the basic living facilities prescribed by the former Public Works Act or the main living facilities prescribed by the former Housing Act, and does not constitute the basic living facilities, barring any special circumstance. Provided, That a plaza is included in or attached to the basic living facilities or facilities falling under the items of the main living facilities, and can be assessed as a whole, it may be deemed that it is included in the basic living facilities. Therefore, in the case of a traffic plaza, which is attached to a road recognized as the basic living facilities and can be assessed together with the roads, it may be deemed as the basic living facilities. However, it is difficult to deem that a traffic plaza, such as a traffic plaza attached to a general plaza or a national expressway not falling under the basic living facilities, falls under the basic living facilities (see, e.g., Supreme Court Decisions 2012Da95301, Nov. 16, 2014; 2015Da19063, Nov. 26, 2015).

B. The lower court determined as follows: (a) the traffic plaza No. 1 ② of the Appendix No. 5 square drawing of the lower judgment determined as follows: (b) the display plaza constitutes a traffic plaza and thus constitutes a basic living facility. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is justifiable and did not err by misapprehending the legal doctrine on the scope of basic living facilities

C. The lower court determined as follows: (1) through (5) the display plaza, which is equivalent to the traffic plaza provided for the prevention of traffic congestion and convenience, such as smooth flow of various vehicles, evacuation of accident vehicles, driver’s rest, etc., connected to the major roads, and determined as constituting a basic living facility.

However, such determination by the lower court is difficult to accept for the following reasons.

According to the reasoning of the judgment below and the evidence duly admitted, the above 11 to 15 display squaress are located in the area of EK - Mak, luminous and nyang, and are installed in the area of the second-class expressway or the second-class highway and the second-west coast high speed (EK), and there is a lot of room to view it as a traffic plaza attached to the national expressway that does not fall under the basic facilities.

Nevertheless, the lower court, without examining it properly, determined that the above ① or 1 p.m. display squares corresponds to the traffic plaza annexed to the road and constitutes the basic living facilities.

The lower court erred by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the scope of basic living facilities, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit.

2. Whether the charges for electric power plant, public charges, and other facilities, and the waste disposal charges fall under the cost of establishing basic living facilities (ground of appeal No. 2)

A. The lower court determined that the charges for public charges, charges for other facilities, and charges for waste disposal of the instant case were included in the cost of installing basic living facilities on the following grounds, and determined that the amount corresponding to the ratio corresponding to the size of the installation of basic living facilities among the total project district area constituted the cost of installing basic living facilities.

(1) Although the instant public charges are included in the “other creation cost” item among the creation cost, the name of each item alone is not clearly distinguishable from the cost of creating a basic living facility area or the cost of creating an area unrelated to basic living facilities, and there is no evidence to deem that the instant public charges are irrelevant to all basic living facilities, as alleged by the Defendant, since it was paid at the time of filing an application for electricity supply in the project district.

(2) The evidence submitted by the Defendant alone is insufficient to recognize the Defendant’s assertion that the instant contributions to the other facilities are expenses incurred in relation to the establishment of malodor reduction measures in the EL sewage treatment plant located outside the instant business district. Since the said contributions to the other facilities are organized in the item of “infrastructure installation expenses,” the said contributions to the other facilities are deemed to include the expenses incurred in relation to the construction of basic living facilities.

(3) At the sixth day for pleading of the lower judgment, the Defendant stated that there was no dispute that the part corresponding to the ratio of the size of the basic living facilities among the waste disposal contributions in this case constitutes the installation costs of the basic living facilities, and there is no evidence to prove that the confession was contrary to the truth and due to mistake. Even if the Defendant’s claim for revocation of confession was reasonable, the waste disposal contributions are included in the item “construction costs of the infrastructure facilities,” but the name of the individual item alone does not clearly distinguish whether the cost of creating the basic living facilities is the cost of creating the area of the basic living facilities or the cost of creating the area unrelated to the basic living facilities. Therefore, the waste disposal contributions can be deemed as the share of waste disposal related

B. However, it is difficult to accept the above determination by the lower court for the following reasons.

(1) Of the cost of housing site development, the cost of the item included in the cost of the construction of the housing site is recognized as having been spent for the relevant cost of the cost of the construction of the basic living facilities, namely, the relationship between the cost of the construction of the basic living facilities and the cost of the cost of the construction of the basic living facilities. However, the cost of the basic living facilities is included in the cost of the basic living facilities within the percentage of the area of the basic living facilities installed of the total or total project area. The burden of proof of the relevance lies in the assertion that the cost of the relevant item is the cost of the basic living facilities (see, e.g., Supreme Court Decisions 2014Da85391, Jul. 9, 2015;

(2) According to the records, the public charges of the instant case are classified into “other creation cost”; the charges for other facilities are classified into “infrastructure installation cost; the charges for waste disposal are classified into “infrastructure installation cost”; however, there is no evidence to acknowledge that the said expenses were paid for the installation of basic facilities in the instant project district. However, if there is no possibility that some of the said expenses would have been disbursed for other purposes unrelated to the installation of the basic facilities or the creation of the entire site, the said expenses may not be ruled out. Thus, some of the said expenses may not be included in the cost of creating the basic facilities. Furthermore, the said expenses shall not be included in the cost of creating the basic facilities, as they refer to the statement of facts unfavorable to themselves as they conform to the allegations alleged by the other party at the date of judicial confession or preparation proceedings; and the confession of indirect facts is not binding upon the court or the party concerned (see, e.g., Supreme Court Decision 2013Da213823, Mar. 13, 2014).

The Plaintiffs seek return of unjust enrichment on the ground that the cost of basic living facilities was fully paid to the sale price of the housing site that was specially sold due to the relocation measures for the housing site development project of this case.

In such a case, the establishment and scope of unjust enrichment ought to be determined depending on whether the sale price exceeds the remainder, excluding the amount of the cost of the basic living facilities from the development cost. Therefore, it is difficult to deem that the specific item of waste disposal contributions, which is merely the basis for calculating the cost of the installation of the basic living facilities, as major facts (see Supreme Court Decision 2014Da391, Jul. 9, 2015). In light of the records, the Defendant’s statement on the amount of waste disposal contributions, as to the records, seems to be contrary to the truth and due to mistake

(3) Nevertheless, the lower court included the amount equivalent to the size of the basic living facilities out of the Korea-Japan’s public charges, other facility charges, and waste disposal contributions in the installation cost of the basic living facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the installation cost of the basic living facilities, the burden of proof, and the subject and revocation of confession, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

The judgment of the court below is reversed without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices