[1] Whether the charges for metropolitan transport facilities under Article 11 of the former Special Act on the Management of Metropolitan Transport in Metropolitan Areas constitute the installation costs of basic living facilities to be provided to a person subject to relocation measures as a basis for living (negative)

[2] In a case where a development project operator included the amount equivalent to the above charges in the sales contract concluded with the person subject to relocation measures as a result of calculating the charges for metropolitan transportation facilities in the process of building a housing site and constructing a housing site, whether the development project operator's unjust enrichment of the sales price equivalent to the charges or the act of transferring the sales price to the sale price constitutes tort (negative in principle)

[1] Article 2 subparags. 1 and 2, Article 11 subparag. 1, and Article 11-4(1) of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6939 of Jul. 25, 2003), 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) / [2] Article 11-2(1)3 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6939 of Jul. 25, 2003) (see current Article 11-2(1)4), Articles 741 and 750 of the Civil Act

Plaintiff 1 and two others (Attorneys Kim Jong- full, et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na2182 decided February 21, 2012

The part of the lower judgment against the Plaintiffs regarding the civil engineering cost is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the Plaintiffs and the Defendant’s appeal are dismissed.

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

1. Regarding the plaintiffs' grounds of appeal

A. Part of the civil construction cost

According to the reasoning of the judgment below, the court below recognized the facts that the total project area of the housing site development project of this case is 219,457 square meters, among them, the area of the road which is a basic living facility is 59,907 square meters, and the total civil construction cost spent for the project of this case is 15,201,194,000 square meters, and calculated the amount of the civil construction cost for the installation of basic living facilities spent for the project of this case as KRW 15,201,194,00 with the total amount of the civil construction cost of KRW 15,207,219,457 with the ratio (219,457 square meters) to the total project area of the site of the basic living facilities.

However, according to the evidence adopted by the court below, among the total civil construction cost spent for the housing site development project of this case, the facts that include items such as "road construction and packing construction cost," "water supply and waterworks construction cost," "sewage construction cost," etc. Thus, roads and water supply and sewerage facilities constitute the basic living facilities under 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 Public Works Act"). Thus, it is reasonable to view that at least the "road construction and packing construction cost," "water supply and waterworks construction cost," and "sewage construction cost" are included in the total civil construction cost for the installation of basic living facilities.

Nevertheless, the court below calculated the civil construction cost for the installation of basic living facilities in the way as seen earlier without examining the detailed details of the total civil construction cost spent for the housing site development project of this case. In this regard, the court below erred by misapprehending the legal principles on the scope of the installation cost of basic living facilities and the calculation method, etc., and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of

(b) Shares of metropolitan transport facility contributions;

1) Under the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6939, Jul. 25, 2003; hereinafter “former Intercity Transport Act”), a person who implements a housing site development project under the Housing Site Development Promotion Act in a metropolitan area prescribed by Presidential Decree among metropolitan areas shall pay charges for intercity transport facilities to construct and improve intercity transport facilities (Article 11 subparag. 1); and the charges for metropolitan transport facilities shall be imposed and collected by the Mayor/Do Governor of the area in which the project is implemented (former part of Article 11-4(1)). Here, the term “metropolitan area” means the area prescribed by Presidential Decree among the areas in the Seoul Special Metropolitan City, Metropolitan Cities, and their cities under Article 2(1)1 of the Local Autonomy Act, and the areas in the same traffic life zone as the cities (Article 2 subparag. 1); the term “wide transport facilities” means transport facilities covering two or more Special Metropolitan Cities, Metropolitan Cities, and Dos, which meet the requirements prescribed by Presidential Decree, including urban railroads or railroad facilities over two or over two or more cities.

In light of the relevant provisions of the former Metropolitan Transport Act including these provisions, the charges for metropolitan transport facilities only imposed in metropolitan areas are required for the construction and improvement of metropolitan transport facilities in metropolitan areas, and the expenses incurred in raising the value of the housing site and housing in metropolitan areas are imposed on the project operator by the Mayor/Do Governor. In view of the fact that those subject to relocation measures who are supplied with the housing site for migrants in metropolitan areas have profits from the construction and improvement of metropolitan transport facilities, the charges for metropolitan transport facilities cannot be deemed to constitute the installation costs of basic living facilities to be provided to the person subject to relocation measures as a basis

2) Article 11-2(1)3 of the former Metropolitan Transport Act provides that no metropolitan transport facility charge shall be imposed on a housing site and a housing construction project in accordance with the implementation of relocation measures under Article 8 of the Act on Special Cases concerning the Acquisition of Land for Public Use and the Compensation Therefor. However, this provision provides that the Mayor/Do Governor, who is the authority imposing charges for metropolitan transport facilities, shall not impose metropolitan transport facility charges on the land for the creation of housing site and the construction of housing in accordance with the implementation of relocation measures, to reduce the burden of the operator of the development project on the responsibility to pay the charges for metropolitan transport facilities. In a case where the operator of the development project actually paid the charges for metropolitan transport facilities in the course of the creation of housing site and the construction of housing, even if the number of buyers includes the person subject to relocation measures, the charges for metropolitan transport facilities actually

Therefore, even if an operator of a development project includes the amount equivalent to the metropolitan transport facility charges in the sale price entered into with the person subject to relocation measures according to the determination of the actual cost of the transportation facility charges and the sale price, barring special circumstances, such as the law or agreement to exclude it from the sale price, the portion equivalent to the charges for metropolitan transport facilities out of the sale price agreed under the sale contract cannot be deemed null and void. Thus, it is difficult to view that the operator of a development project gains, without any legal ground, the sales price equivalent to the charges for metropolitan transport facilities in relation to the person subject to relocation measures

3) According to the reasoning of the judgment below, the court below rejected all of the grounds for appeal that the defendant's act of including or transferring the shares in metropolitan transport facilities falling under the cost of the basic living facilities in the plaintiffs' apartment sale price constitutes invalid or tort in violation of Article 78 (4) of the former Public Works Act or Article 11-2 (1) 3 of the former Intercity Transport Act, and thus, the defendant is obligated to return unjust enrichment or compensate the losses to the plaintiffs. The court below rejected all of the grounds for appeal that there is insufficient evidence to prove that the shares in metropolitan transport facilities imposed on the defendant in relation to the housing site development project of this case were reflected

According to the evidence adopted by the court below, the defendant, who is the implementer of the housing site development project of this case, imposed the share of 2,359,801,00 won for metropolitan transportation facility charges of this case, and the defendant determined the purchase price for the apartment of this case including the purchase price for the apartment of this case, and there is no difference between the sale price for the apartment of this case and the sale price for the apartment of general apartment sold to the persons subject to relocation measures including the plaintiffs. Thus, the part of the court below determined that there is insufficient proof that the burden imposed on the defendant on the transportation facility charges of this case was transferred to the plaintiffs is reasonable. However, in light of the above legal principles, even if the metropolitan transportation facility charges imposed on the defendant were included in the purchase price for the apartment of this case and the burden was transferred to the plaintiffs, it cannot be viewed as the

2. As to the Defendant’s ground of appeal

The Defendant’s argument in the grounds of appeal is not only asserted until the closing of argument in the lower court, but also, even if examining the content thereof, it is justifiable in light of the relevant legal principles that the lower court recognized a road of 59,907 square meters in the instant housing site development project district as a basic living facility on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the scope of basic living facilities and the burden of proof

3. Conclusion

Therefore, the part of the judgment below against the plaintiffs regarding the civil construction cost is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiffs and the defendant's appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)