2015Da27330 Unlawful gains

1. A;

2. B

3. C.

4. D;

5. E.

7. G.

8. H;

6. F;

9. I

10. J

11. K;

person

Es. Es.S.P

Seoul High Court Decision 2012Na97606 Decided March 31, 2015

October 15, 2015

The part of the lower judgment against the Defendant against Plaintiff F, Plaintiff I, J, and Plaintiff K is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiffs' appeals are dismissed.

The costs of appeal by Plaintiffs A, B, C, D, Plaintiff E, Plaintiff G, and Plaintiff H are assessed against the said Plaintiffs.

The grounds of appeal are examined.

1. Article 78(1) 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 referred to as the "former Public Works Act") provides that a project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by the Presidential Decree for a person who is deprived of his/her base of livelihood due to the provision of residential buildings (hereinafter referred to as a "person subject to relocation measures") (hereinafter referred to as "person subject to relocation measures"), which is not a person subject to relocation measures under the former Act and subordinate statutes, since Article 40(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20722, Feb. 29, 2008; hereinafter referred to as the "Enforcement Decree of the Public Works Projects Act") provides that a project operator shall not be deemed a person subject to relocation measures under the former Act and subordinate statutes, but shall not be deemed a person subject to relocation measures (see Article 90(2) of the former Act).

(2) On the grounds indicated in its reasoning, the lower court did not recognize the establishment of a claim for return of unjust enrichment on the amount equivalent to the cost of installing basic living facilities included in the sale price of each of the above plaintiffs on the ground that the buyer constitutes "the owner of a building who does not continuously reside in the relevant building from the date of public notification under the relevant Acts and subordinate statutes for the public works to the date of conclusion of the contract or the date of expropriation decision" under Article 40 (3) 2 of the former Enforcement Decree of the Public Works Act.

(3) Examining the records in accordance with the above legal principles, the above determination by the court below is justifiable. In so doing, it did not err by misapprehending the legal principles as to the unconstitutionality of Article 40(3) of the former Enforcement Decree of the Public Works Act, by violating the Supreme Court precedents as to the designation of a person subject to relocation measures or the validity of the criteria for relocation measures established by the defendant under the former Public Works Act, or by misapprehending the legal principles as to the designation of

2. On the grounds of appeal by Plaintiff F, Plaintiff I, Plaintiff J, and Plaintiff K, the lower court, based on its stated reasoning, determined that among infrastructure installation costs, the cost of creating roads connecting main entrances in a housing complex with roads outside a housing complex and main entrances in a housing complex cannot be deemed as the cost, and rather, the cost of installing main arterial road opening facilities, etc. is not included in the cost of installing basic living facilities, on the ground that such cost of installing main arterial roads, etc.

Examining the records in accordance with the relevant legal principles, the above determination by the court below is justifiable. In so doing, there is no error of law by misapprehending the legal principles as to road opening facilities for the main line.

3. As to the Defendant’s ground of appeal

(1) With respect to the grounds of appeal on the scope of roads falling under the basic living facilities, a female project implementer is required to provide a person subject to relocation measures with basic living facilities, including roads falling under arterial facilities prescribed by Article 2 subparag. 8 of the Housing Act, i.e. roads within a housing complex, which connect roads located outside the relevant housing complex to roads of the same kind located outside the relevant housing complex, notwithstanding their length or width (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road installed within a public-service project zone by a project implementer, which is an essential facility for the achievement of the functions of a housing complex, etc. in the relevant housing zone and the passage of all residents therein, except in extenuating circumstances (see Supreme Court Decision 2013Da29509, Jul. 23, 2015).

Examining the record in accordance with the aforementioned legal principles, the lower court’s determination that all 1,2, and 3 roads in a housing complex were newly built by the Defendant to connect a road outside the relevant housing complex with the same kind of roads outside the relevant housing complex during the implementation of an urban development project constitutes a road that requires the project operator to provide the basic living facilities to the person subject to relocation measures. In so doing, the lower court did not err by misapprehending the legal doctrine on the scope

(2) As to the grounds of appeal on road site costs. Based on its stated reasoning, the lower court rejected the Defendant’s assertion that road site costs were not included in the total project cost, and determined that the road site costs were included in the total project cost by calculating the cost of basic living facilities. Examining the records in accordance with the relevant legal principles, the lower court’s determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the duty to return unjust enrichment in relation to road site costs, or by failing to

(3) As to the grounds of appeal on the costs of undergroundization of electric facilities, the lower court determined that, around 2003, the development plan for the project of this case was approved, the costs of undergroundization of electric facilities were included in the cost of installing basic living facilities according to the regional conditions.

Examining the record in accordance with the relevant legal principles, the said judgment of the court below is justifiable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the costs of emulation

(4) According to Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007; hereinafter the same), Article 78(1) of the former Public Works Act, and Article 40(3)2 of the former Enforcement Decree of the Public Works Act as to the grounds of appeal on the "date on which a public notice, etc. under the relevant Acts and subordinate statutes for the public works" under Article 40(3)2 of the former Public Works Act is given, a project operator shall either establish and implement the relocation measures or pay resettlement funds (hereinafter referred to as the "establishment, etc. of relocation measures") for the person who is deprived of his/her base of livelihood as a result of the implementation of an urban development project for the purpose of providing residential buildings due to the implementation of an urban development project, but the owner of a building who fails to continuously reside from the "date of public notice, etc. under the relevant Acts and subordinate statutes for the public works project to the date of conclusion or adjudication of expropriation."

Meanwhile, Article 21(2) of the former Urban Development Act provides that the Public Works Act shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project except as otherwise provided for in the above Act. While the former Public Works Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree, the main text of Article 78(4) provides that "the details of relocation measures include basic living facilities at a normal level (hereinafter referred to as "basic living facilities"), such as roads, water supply facilities, drainage facilities, and other public facilities, in the resettlement area (including a housing complex constructed by the implementation of relocation measures), and directly provides that the project operator shall bear the expenses incurred in establishing and implementing relocation measures."

In cases where the relevant Act that requires the application of the Public Works Act to land expropriation procedures is scheduled to make a public announcement for residents, etc. in addition to the public announcement of project approval, the “date of public announcement, etc. under the relevant Act and subordinate statutes for public projects, which serve as the basis for a person subject to relocation measures,” not only the date of public announcement, but also the date of public announcement (see Supreme Court Decision 2007Du1340, Feb. 26, 2

However, the criteria for determining whether a person is subject to measures for resettlement as prescribed by the laws and regulations should be individually specified in accordance with the relevant laws and regulations for each public project. Since the application of the Act on the Establishment, etc. of Measures for Relocation, which is mandatory provisions, must be consistent, it is reasonable to interpret it as one of the criteria for measures for resettlement of individual laws and regulations. If a project operator can choose one of them in mind, it is not desirable that the criteria for each project are different, causing confusion and is contrary to equity.

In addition to these circumstances, in full view of the procedures for the progress of public works under the former Urban Development Act and the policy needs to prevent speculative transactions due to the implementation of such projects, it is reasonable to deem that the legal relocation measures corresponding to the "date on which the public notice, etc. is made under the relevant Acts and subordinate statutes for public works" in an urban development project is the date of public inspection as to the designation of an urban development zone under Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18738, Mar. 12, 2005). Based on this, it is reasonable to deem

Article 78(4) of the former Public Works Act, which requires a project operator to install basic living facilities and bear the expenses, shall be particularly applicable to a person subject to the relocation measures prescribed by this Act, as the content of the relocation measures only for a person subject to the relocation measures prescribed by this Act, and shall not be deemed to have been applied to a person subject to the mutually beneficial relocation measures (Supreme Court).

See Supreme Court Decision 2014Da14672 Decided July 23, 2015

Nevertheless, the court below did not set on July 9, 2003, when the Mayor of Gangdong-gu Seoul Metropolitan Government made a public inspection announcement for the designation of the Lane development zone in accordance with Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act, and instead set on October 8, 2004, the compensation plan was announced by the defendant as the legal base date for relocation measures, which was set on October 8, 2004. Thus, the court below erred by misapprehending the legal principles on "the date when the public announcement, etc. is made in accordance with the relevant Acts and subordinate statutes for public works" under Article 40 (3) 2 of the former Public Works Act, which affected the conclusion of the judgment.

(5) As to the grounds of appeal on the point of time for calculating the cost of housing site creation, which served as the basis for determining sale price

According to the records, the following facts are revealed: (a) the modification of the development plan and the modification of the implementation plan of the YL Urban Development Zone announced by the Seoul Special Metropolitan City on April 9, 2009 after October 2008 after the conclusion of each contract for the sale of each of the instant items for special sale to persons subject to relocation measures; and (b) the modification of the road area to 162,670

According to such factual basis, the cost of housing site development in the project district of this case is calculated, and the road area is changed to 162,670 meters according to the development plan and the implementation plan, and such change does not affect the calculation of the sale price. Therefore, it is reasonable to deem that the calculation of the defendant's unjust enrichment should not be considered.

Nevertheless, the court below calculated road site costs on the premise that the road area is 162,670. In so doing, the court below erred by misapprehending the legal principles on the base point of time for calculating the cost of basic living facilities, which affected the conclusion of the judgment.

(6) Examining the record of the grounds of appeal as to the method of calculating road site costs in accordance with the relevant legal principles, it is justifiable to apply the ratio of the lower court’s application of the ratio of the road area remaining after deducting 3,853 square meters of the preserved area from the total road area on the land use planning among the business districts which deduct 64,459 square meters of the preserved area in the entire area of the project district in calculating the road site cost for basic facilities for living. In so doing, there is

4. Conclusion

Therefore, among the judgment of the court below, the part against the defendant against the plaintiff F, 1, J, and Ha is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal is dismissed. The costs of appeal against the plaintiff F, 1, 1, 2, 3, 4, 5, 5, 7 are assessed against the above plaintiffs. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok