(영문) 대법원 2016.5.12.선고 2013다210947 판결

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeals are dismissed.

Reasons

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

In full view of the adopted evidence, the lower court recognized that the construction cost actually invested in the instant apartment was KRW 105,003,507,715.

Examining the reasoning of the lower judgment in light of the record, the fact-finding by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the actual construction cost and burden of proof, or by failing

2. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

1) Article 21 of the former Rental Housing Act (amended by Act No. 9863, Dec. 29, 2009; hereinafter the same) provides that, where a rental business operator constructs housing with funds from the National Housing Fund or constructs housing on a housing site developed by a public project after the expiration of the mandatory rental period, the rental business operator shall preferentially convert the leased housing into lots (Paragraph 1) and matters necessary for the method, procedure, price, etc. of such conversion into lots shall be prescribed by Presidential Decree (Paragraph 10). Accordingly, Article 23(8) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 21892, Dec. 16, 2009; hereinafter the same shall apply) provides that the sale price of the housing site (excluding publicly constructed housing under each subparagraph of Article 13(5)) shall be calculated within the scope of the standard for calculating the pre-sale conversion price of the housing site, such as the supply of the housing site to the public institution before and after the merger of the housing site (Article 20).

Meanwhile, the instant attached Table, etc. does not have any provision regarding how to calculate the cost of the housing site and reflect it on the pre-sale conversion price when the Defendant and other public institutions directly construct the publicly constructed rental housing on the housing site developed by themselves. However, in light of the Defendant’s purpose of existence, scope of duties, and equity in supplying the housing site to the private rental business operators who intend to build, lease, and sell the publicly constructed rental housing, it is reasonable to deem that the housing site cost directly reflected on the pre-sale conversion price of the publicly constructed rental housing on the housing site developed by the Defendant is a housing site supply price subject to the discount rate set forth in the Housing Site Development Promotion Guidelines (see, e.g., Supreme Court en banc Decision 2009Da97079, Apr. 21, 201).

However, in addition to the language and purport of related Acts and subordinate statutes, such as the former Act and subordinate statutes, including the Housing Site Development Promotion Act, ① the supply price of the housing site which is developed and supplied under the Acts and subordinate statutes, such as the Housing Site Development Promotion Act, is limited to the housing site cost. ② Article 18(3) of the former Housing Site Development Promotion Act (amended by Act No. 6916, May 29, 2003; hereinafter the same shall apply), Article 11 [Attachment Table] of the former Enforcement Rule of the Housing Site Development Promotion Act (amended by Ordinance No. 292, Aug. 7, 200) provides that the housing site development cost cannot be calculated at the development cost at the time of the completion of the construction work, and the Act and subordinate statutes does not prohibit the supply of the housing site at the development cost at the time of the construction cost before the completion of the construction work, and the provisions on the presumption of supply price at the time of the housing site development project can not be applied to the housing site development project at the time of the construction cost.

2) When concluding a contract for conversion for sale in lots with the Plaintiffs, the Defendant calculated housing site expenses based on the estimated development cost which was not deducted among the contributions included in the initial estimated development cost. In light of the above legal principles, even if the actual development cost was not executed because some of the contributions included in the estimated development cost was not executed, the method of calculating the housing site expenses out of the estimated development cost cannot be deemed unlawful on the sole basis of such circumstance. The presumption development cost and the actual development cost cannot be deemed null and void to the extent that the difference between the estimated development cost

3) Nevertheless, the court below held that the amount of the charge which was not executed by the defendant among the charges included in the presumed development cost calculated by the defendant should be deducted from the development cost of the above housing site, based on its stated reasoning, and determined that the construction cost of the above housing site shall be deducted from the amount calculated by multiplying the total of KRW 17,650,000 (17,650,000,000, total of KRW 15,650,000,000, total of the construction cost of the wide-area electric power building, which can be deemed that there is no room to pay in the future from the development cost of the above housing site, by a certain ratio (92,265 square meters and Dong-dong area of the apartment site of this case). In so doing, the court below erred by misapprehending the legal principles on the calculation of the development cost of the housing site among the elements of the pre-sale conversion price, which affected the conclusion of the judgment. The defendant's ground of appeal assigning this error is with merit.

B. As to the ground of appeal No. 2, the upper limit price of construction costs is determined as the price separately publicly notified by the Minister of Land, Transport and Maritime Affairs (hereinafter “standard construction cost”). It is clear that the standard construction cost refers to the upper limit price of construction costs reflected in the pre-sale conversion price, and it is clearly distinguishable from the construction cost, and that the construction cost, which is the basis for the calculation of the pre-sale conversion price, is not the standard construction cost, but the construction cost. Thus, it is reasonable to interpret that the construction cost, which is the basis for the calculation of the pre-sale conversion price, means the construction cost actually invested within the scope of the standard construction cost and not the standard construction cost (see, e.g., Supreme Court en banc Decision

In the same purport, the lower court was justifiable to have determined that the construction cost reflected in the pre-sale conversion price of this case refers to the construction cost actually invested within the scope of the standard construction cost, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the calculation of construction

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.