[1] The validity of imposing development charges on members of the housing association at the time when the former Restitution of Development Gains Act enters into force (negative)

[2] Whether a partner of a dissolved association shall be liable to pay development charges for which the requirements for imposition have been completed prior to the enforcement of the revised provision that provides that a partner shall be liable to pay development charges when the partnership is dissolved (negative)

[3] Where a disposition imposing development charges is null and void, the subject and scope of the obligation to return unjust enrichment on the collected development charges

[4] Whether the imposing authority can be deemed a malicious beneficiary in a case where the imposing authority erroneously interpreted the statute and imposed and collected development charges on the members of a housing association (negative)

[5] The case holding that it is reasonable to dispute the existence or scope of the obligation to return unjust enrichment in case where a housing association has filed a lawsuit claiming the return of the individual development charges paid by the association members after obtaining the authorization of dissolution

[1] Where a housing association which has obtained authorization for establishment under the Housing Construction Promotion Act constructs an apartment with the approval of the project plan for the apartment zone development project, the person liable for payment of development charges under Article 6 (1) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) is the housing association that is the project operator and its members are not its members, and thus, the disposition imposing development charges on the members who are not the person liable for payment is null and void because the defects

[2] Article 6 (2) of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; Article 6 (2) of the same Act provides that "where the person liable to impose the development charges is the association prescribed by the Presidential Decree and the association is dissolved, the association member shall pay the development charges." Even if a provision was newly established, the person liable to pay the development charges, for which the requirements for imposition have been completed prior to the enforcement of the above provision, does not change

[3] A beneficiary who becomes the other party to a claim for return of unjust enrichment shall be the subject of actual benefit. According to Articles 3(1), 5, and 14 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), and Article 21(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), the imposition and collection of development charges imposed by a local government shall be limited to the execution of state affairs by delegation by the Minister of Construction and Transportation, but the amount equivalent to 50% of the collected development charges shall belong to the local government to which the land where the development gains accrue belongs. Since only the amount equivalent to 50% of the development charges paid shall be attributed to the National Treasury, unjust enrichment shall accrue to the State.

[4] The imposition authority's wrong interpretation of the relevant statutes to impose development charges directly on the members of the housing association, which is the real beneficiary of development gains, and even if part of the collected charges were unjustly reverted to the State, it shall not be deemed that the State accrued profits from the fact that there was no legal ground.

[5] The case holding that if the housing association obtained the authorization of dissolution from the competent authority and then filed a lawsuit claiming the return of the development charges paid individually against the country, the State recognizes that it is reasonable to dispute the existence or scope of the obligation to return the unjust enrichment to the association members until the decision of the appellate court is rendered, the association members received the issue of the development charges imposed individually by paying the development charges, and ultimately received the issue of the development charges imposed

[1] Article 6(1) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993); Articles 16 and 17(3) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993) / [2] Article 6(2) of the former Restitution of Development Gains Act / [3] Articles 3(1), 4(1) and 14 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993); Article 21(1) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993); Article 741 of the Civil Act / [4] Article 16(2) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 1395163, Jun. 16, 197) of the Restitution of Development Gains Act

[1] [2] Supreme Court Decision 94Nu5755 delivered on September 9, 1994 (Gong1994Ha, 2653), Supreme Court Decision 95Da2891 delivered on November 14, 1997 (Gong1997Ha, 3789), Supreme Court en banc Decision 95Da26476 delivered on April 23, 1998 (Gong198Sang, 1329) / [1] Supreme Court Decision 93Nu13278 delivered on November 23, 1993 (Gong194Sang, 208), Supreme Court Decision 94Nu6291 delivered on July 29, 194 (Gong194Ha, 2241) / [3] Supreme Court Decision 95Da26479 delivered on April 25, 1995

Plaintiff 1 and 119 others (Attorney Hong-ju, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 95Na5099 delivered on May 18, 1995

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the period for supplemental appellate brief).

1. First, we examine the defendant's grounds for appeal.

A. As to the obligor of the development charges

Where a housing association which has obtained authorization for its establishment under the Housing Construction Promotion Act constructs an apartment after obtaining approval for a project plan for an apartment zone development project, the person liable for payment of development charges under Article 6 (1) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter referred to as the "Act") is the housing association that is the project implementer and is not its members, and thus, the person liable for payment of development charges is not its members. The disposition imposing development charges on the members who are not the person liable for payment is invalid because the defects are significant and obvious (see, e.g., Supreme Court Decisions 93Nu13278, Nov. 23, 1993; 94Nu6291, Jul. 29, 194; 94Nu5755, Sept. 9, 194).

In addition, even if the Act was amended by Act No. 4563 on June 11, 1993 and Article 6 (2) provides that "if the person liable to impose the development charges is the association prescribed by the Presidential Decree and the association is dissolved, the member concerned shall pay the development charges." The development charges in this case are completed before the above amended provision was enforced, so the requirements for imposition are completed before the above amended provision was enforced, so the person liable to pay the development charges does not change (see Supreme Court Decision 94Nu5755 delivered on September 9, 1994).

The judgment of the court below to the same purport is just, and there is no error of law such as misunderstanding of legal principles as to the obligor of development charges.

B. As to the return of unjust enrichment

According to the reasoning of the judgment below, as long as the imposition of development charges against the plaintiff et al. who are union members is null and void, the court below held that the defendant is obligated to return the profits earned from the disposition of imposition to the plaintiffs as unjust enrichment. In light of the fact that all of the associations of this case is a non-corporate association and its union members are not directly responsible for union obligations with its own property and the union members are not immediately liable for the share ratio without internal decision-making such as the general meeting of union members, and the union members are not immediately liable for the share ratio to the union, such decision of the court below is just, and there is no error of law by misunderstanding the legal principles of

2. Next, we examine the plaintiffs' grounds for appeal.

A. As to the first ground for appeal

A beneficiary who becomes the other party to a claim for return of unjust enrichment shall be the subject of actual benefit. Accordingly, according to Articles 3(1), 5, and 14 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), and Article 21(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), the imposition and collection of development charges against the plaintiffs by the head of Pyeongtaek-gu, the imposing authority of this case, merely dealt with the defendant's business by delegation by the Minister of Construction and Transportation, but the amount equivalent to 50% of the collected development charges belongs to the local government to which the land has accrued. Accordingly, as long as only the amount equivalent to 50% of the development charges of this case belongs to the National Treasury, there is no error in the misapprehension of law as to the other party's claim for return of unjust enrichment (see Supreme Court Decision 94Da51253 of Dec. 22, 1995).

B. Regarding ground of appeal No. 2

(1) According to the reasoning of the judgment below, the court below held that even if the imposing authority erroneously interpreted the relevant statutes and imposed individual charges directly on the members who are the actual beneficiaries of development gains and imposed some charges collected based on such charges on the defendant unfairly belongs to the defendant, the defendant cannot be deemed to have accrued profits with knowledge that there was no legal ground from the beginning, and there is no other evidence to acknowledge that the defendant is a malicious beneficiary. According to the records, this decision of the court below is justified and there is no room to apply the provisions of Article 52 of the Framework Act on National Taxes and Article 30 (2) of the Enforcement Decree of the same Act, which provide for the additional payment of national taxes, and there is no room to apply to this case, and therefore,

Supreme Court Decision 85Meu571 Decided September 10, 1985 cited by the theory of the lawsuit is not appropriate to invoke the refund of customs duties overpaid or erroneously paid.

(2) Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings, which provides for special cases concerning statutory interest rates in calculating the amount of damages due to the default of monetary obligations, shall be excluded from the application to the extent of considerable extent when it is deemed reasonable for the obligor to resist the existence or scope of the obligation under Article 3(2) of the same Act. Here, the term "when it is deemed reasonable for the obligor to resist the existence or scope of the obligation" means the time when the obligor’s assertion in dispute as to the existence or scope of the obligation is acknowledged to have considerable grounds for the obligor’s assertion. Thus, whether the dispute is reasonable or not is related to the fact-finding and evaluation of the court in the instant case (see, e.g., Supreme Court en banc Decision 86Meu1876, May 26, 1987).

According to Article 44 of the Housing Construction Promotion Act and Article 42 (1) 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13850 of Feb. 20, 1993), where a housing association intends to authorize dissolution, it shall require the housing association to submit a statement of accounts with the consent of the association members to complete liquidation procedures including the collection of contributions from the association members and the settlement of accounts such as the payment of public charges before dissolution. In this case, the records show that the four housing associations of this case filed the lawsuit of this case seeking the return of development charges already paid by the competent government office until April 25, 1994, and there is no reasonable ground for the decision of the court below to acknowledge the existence or absence of the obligation to pay damages for delay to the defendant at the rate of 1.5 percent per annum from the next day of the day after the date of issuance of the development charges imposed individually by the plaintiffs, and there is no reasonable ground for appeal as to the existence or absence of the obligation to pay damages for delay to the others in the lawsuit of this case.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)