2018 Gohap25225 Reimbursements

O comprehensive construction in a corporation

Attorney Lee Jae-soo*

Ulsan Metropolitan City Urban Corporation

소송대리인 법무법인 @@

담당변호사 ##,$$

October 17, 2019

November 7, 2019

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the plaintiff.

Defendant 394,997,00 won and a copy of the complaint of this case from August 14, 2018 to Plaintiff 394,997,000

Until the service date, 5% per annum and 15% per annum from the next day to the day of complete payment.

H. D. Payment

1. The facts were based, from the Ulsan Metropolitan City Mayor on April 23, 2009, the Defendant, with the authorization of the development plan and implementation plan for the development project for the urban development project for the Gyeongsan High-speed Railroad Station (hereinafter "development project of this case"). However, on December 31, 2014, the Defendant completed the development project of this case and completed the completion inspection. The Defendant did not enter into a sale contract for the apartment complex of 1678-1, 180 square meters (hereinafter "the site of this case") on the side side of the road of this case (hereinafter "the site of this case") with a height of 11m high, 14m high-rise high-rise road construction project, 14m high-rise road construction project of this case (hereinafter "development project of this case"), but the apartment complex of this case was not constructed for the purpose of 20.29m high-rise apartment complex construction project of this case (hereinafter "the apartment complex of this case") and 40m high-rise road of this case.

D. On October 13, 2015, the Plaintiff filed an application with the head of Ulsan Metropolitan City, Ulsan Metropolitan City for approval of a housing construction project plan to construct a main apartment on the instant land, and the head of Ulsan Metropolitan City, the head of Ulsan Metropolitan City, the head of Ulsan-gu, approved the said housing construction project plan on October 13, 2015, and there is a transparent soundproof wall (H=11m, L =14m) installed by the Defendant on the border highways on the side of the project site under the conditions of approval. However, the noise prevention measures, such as the review of traffic noise at the end of the soundproof wall and the installation of additional soundproof walls, are required to take measures to prevent noise at the high speed of the soundproof wall, and thus, it is necessary to take measures to prevent noise prior to the inspection

E. Since then, on July 10, 2018, the Plaintiff related to the installation of soundproof walls on the instant section from the head of Ulsan Metropolitan City, Ulsan Metropolitan City, Ulsan Metropolitan City, under the above approval conditions, which was leading to the completion of construction by constructing a main apartment on the instant site. As such, it is inappropriate for the Plaintiff to install soundproof walls separately from underground vehicular road construction because the instant section is included in the instant section in the construction site of underground vehicular road, the construction cost would be double entry. As such, the Plaintiff notified that if the above soundproof walls are deposited in Ulsan Metropolitan City, it would be possible to obtain approval for the use of the said main apartment. On August 13, 2018, the Plaintiff paid the amount of KRW 394,97,000, which was imposed by the head of Ulsan Metropolitan City on the instant section.

[Grounds for Recognition] The facts without dispute, Gap evidence Nos. 1, 3, 4, 5, Eul evidence No. 1 (including Serials), the purport of the whole pleadings

2. The plaintiff's assertion

A. Defendant is obligated to develop the instant site in accordance with the guidelines for implementation of district unit planning in the major railway station area in the border mountain basin. The above implementation guidelines provide that soundproof walls shall be installed in the instant section, and the Defendant agreed to install soundproof walls in the instant section to the Plaintiff at the time of the conclusion of the instant sales contract, and the Defendant is obligated to install soundproof walls in the instant section in accordance with the above implementation guidelines and agreement. However, the Defendant was not obliged to install soundproof walls in the instant section. However, the Defendant did not install soundproof walls in the instant section, and the Plaintiff paid KRW 394,97,000 to Ulsan Metropolitan City on August 13, 2018 in order to obtain approval for use of the main apartment. Accordingly, Defendant was obligated to pay the Plaintiff the above soundproof walls installation charges to the Plaintiff as compensation for nonperformance.

B. Since the instant land is a site for constructing apartment complexes and there are design defects that have not been installed with soundproof walls essential to solve noise problems, the Defendant is obligated to compensate for the damages equivalent to the amount paid by the Plaintiff with soundproof walls installed in Ulsan Metropolitan City by supplementing the said defects, i.e., the costs incurred in installing soundproof walls.

3. Determination

A. Comprehensively taking account of the overall purport of the pleadings in each of the statements in Gap evidence Nos. 2, Eul evidence Nos. 2, and Eul evidence Nos. 2 and 3 on April 23, 2009, Defendant A did not provide that a district unit plan implementation guidelines (No. 3; hereinafter referred to as "buffer green land creation guidelines") for the area of the station area of the small high-speed railway station at the time of obtaining authorization for the development plan and the implementation plan for the development project of the development project of this case shall not be included in Article 144 (3) of the Guidelines for the implementation of the district unit plan for the area of the small high-speed railway station station area (No. 2) which appears to have been amended. However, it cannot be acknowledged that the above revised guidelines for the implementation of the development project of this case had to install soundproof walls at the height of 5 meters prior to completion of the development project of this case.

In addition, even if the execution guidelines that appear to have been amended were to have been enforced before the Defendant completed the instant development project, according to the aforementioned evidence, Article 1 of the implementation guidelines of the instant district unit plan applies to the construction sector among the development plan plan for the station area of the small high-speed railway station, which is formulated by the provisions of Article 52 of the National Land Planning and Utilization Act, and the implementation guidelines of the instant district unit plan provide that urban planning facilities in the district unit planning zone and the site, use, density, vacant lot, etc. of buildings in the district unit planning zone shall be explained and stated in the district unit planning plan and the district unit planning contents that are not indicated in the decision shall be specified in the district unit planning plan. Thus, it cannot be deemed that the above implementation guidelines alone impose any obligation as stated therein on the Defendant, and there is no reason to deem that there is no reason to acknowledge that the Defendant had the obligation to install soundproof walls in the instant section solely on the basis of the above implementation guidelines. Moreover, there is no evidence to acknowledge that there is insufficient evidence to acknowledge the installation of soundproof walls in the instant section by the Plaintiff at the time of the agreement.

Therefore, it cannot be said that the Defendant had the obligation to install soundproof walls in accordance with the execution guidelines of the instant case and the agreement at the time of the conclusion of the instant sales contract. Therefore, this part of the Plaintiff’s assertion, which is premised on the Defendant’s obligation to install soundproof walls in the instant section, is without merit.

B. According to the statement in Gap evidence No. 14, the plaintiff and the defendant acknowledged the fact that soundproof walls should be installed in the section of this case in order to satisfy the noise standard level for constructing apartment buildings on the land of this case. However, the following circumstances, which can be acknowledged by considering the facts of the above recognition and the purport of the whole pleading, can not be deemed as having been the duty to install soundproof walls on the section of this case as seen above, and there is no legal ground for the defendant to construct the site of this case to meet the noise standard for constructing the apartment. ② The plaintiff and the defendant concluded the sales contract of this case without soundproof walls on the land of this case. The plaintiff and the defendant did not have any other reason to acknowledge the plaintiff's construction plan of this case, such as the construction of the site of this case, on the site of this case, such as the construction of land, the status and location of the project district, the construction of the site of this case by directly checking the land location, the construction of the building site of this case and the installation of soundproof walls for the purpose of this case, and the plaintiff's construction plan of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge's outstanding shares

Judges Kim Do-young

Judges Southern-Man-Un