Distribution 2 Complex Housing Reconstruction and Improvement Project Association (Law Firm Square, Attorneys Southern-pack et al., Counsel for the defendant-appellant)

Seocho-gu Seoul Metropolitan Government et al. (Law Firm Gyeong & Yang, Attorneys Park Sang-hoon et al., Counsel for the plaintiff-appellant)

September 29, 2011

1. The Defendants jointly and severally pay to the Plaintiff the amount of KRW 5,195,837,040 and KRW 3,129,398,50 from September 6, 2006; KRW 2,06,438,540 from July 16, 2009; KRW 5% per annum from February 26, 2010; and KRW 20% per annum from the next day to the date of full payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. Status of the parties

The Plaintiff is a housing reconstruction and rearrangement project association established pursuant to the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) with 1,66 members, such as apartment owners, etc. in the instant project area, for the purpose of implementing a housing reconstruction project (hereinafter “instant project”) on the distribution-based complex, apartment complex, and commercial building located on the land outside Seocho-gu Seoul Metropolitan Government (hereinafter “instant project”). The Defendant Seocho-gu Seoul Metropolitan Government (hereinafter “Defendant Seocho-gu”) was the owner of each real estate listed in the attached Forms 1 and 2, which are the public property in the instant project area (displacement Improvement Infrastructure), and the Defendant Seoul Metropolitan Government (hereinafter “Defendant Seoul Metropolitan Government”) granted the authority to purchase and sell the said real estate and receive the price thereof to the Defendant, as mentioned in the attached Table 3 list, which is the public property in the instant project area (displacementd rearrangement infrastructure) as follows.

(b) Authorization for project implementation;

(1) On December 31, 2004, the Plaintiff obtained authorization for the project implementation of the instant project from the head of Seocho-gu Office (hereinafter “instant authorization”). The instant authorization was publicly notified on January 3, 2005.

(2) The instant authorization included KRW 67,386,485,50 on the ground of 11,803 square meters within the instant project area in the cost of KRW 67,386,485,50 on the ground of 8,626 square meters, and each of which was installed on the ground of KRW 63,86,69,693,00 on the ground of 8,626 square meters, and the existing maintenance infrastructure installed within the instant project area, which will be disused due to the implementation of the project, included the content of the instant land as KRW 21,543 square meters of the existing road (hereinafter “road site” in the attached Table 1 list), 95,160,679,00,00 and KRW 6,35.5 square meters of the ditches (hereinafter “the instant ditch site”) as KRW 26,565,90,00,000, KRW 13,606 on the ground of this case’s land.

(3) In granting the instant authorization, the head of Seocho-gu did not recognize 4,272,60,000 won (67,386,485,500 won - 63,113,885,600 won), which is the difference between the appraised value of a park newly installed and the appraised value of a park whose use is discontinued, excluding all of the parks that are to be disused due to the implementation of the instant project from those subject to free transfer, while ordering the Plaintiff to bear the condition that the Plaintiff bears the following conditions: 31,293,985,00 won (95,160,679,679,000 won - 63,86,696,693,00 won), and the appraised value of a ditch whose use is abolished, which is the difference between the appraised value of a newly installed park and the appraised value of a newly installed road.

Accordingly, the plaintiff filed a lawsuit seeking partial revocation of the authorization of this case against the head of Seocho-gu, on the ground that the amount of KRW 4,272,600,000, which is the difference in the appraised value of the above park, should be deducted from the costs of installation of public facilities to be borne by the plaintiff, and received the final and conclusive judgment in favor of the Seoul Administrative Court 2006Guhap8343 on May 24, 2006. Accordingly, the head of Seocho-gu, on June 29, 2006, the head of Seocho-gu revised the project implementation plan (hereinafter "the revised authorization of this case"), including the transfer of the site of this case, abolished due to the project implementation of this case

(4) Meanwhile, within the instant project zone, “sewage cancer” was installed on the ground of the site on the north side and the south side, but the head of Seocho-gu added the condition that “the head of Seocho-gu (2.5x 1.9m) shall extend to the distribution channel (3.0 x 2.0m) and build the Gu ship so that more than 2% can be secured by the distribution channel on the north side, and the other south side distribution reservoir flow reservoir, sewage inflow rock (45 x3m x3m) shall be located on the structure for more than 30 years in accordance with the results of the examination of the repair.” The head of Seocho-gu added the condition that “the site currently planned as a park is in order to secure the public site to the sewage site in the ditch, and can be exchanged with the ditch site).”

After that, while carrying out the instant project, the Plaintiff incurred a construction project to remove sewage cancer in accordance with the above authorization conditions. The Plaintiff spent KRW 25,062,48,000 for the construction cost ( KRW 6,309,03,000 for the relocation cost of sewage for North Korea + KRW 18,753,485,00 for the relocation cost of sewage for South and North Korea).

(c) Conclusion, etc. of sales contracts;

(1) Meanwhile, during the process of the instant project, Defendant Seoul Special Metropolitan City demanded the Plaintiff to purchase the pertinent land on the ground that the instant land was owned by Defendant Seoul Special Metropolitan City, by asserting that the instant land was not subject to gratuitous transfer pursuant to Articles 65(2) and 65(4) of the Act on the Maintenance of Urban Areas and Dwelling Conditions for the reason that the instant land was owned by Defendant Seoul Special Metropolitan City. The Plaintiff filed a lawsuit disputing the legitimacy of the instant land (Seoul Central District Court 2006Gahap73954). On February 12, 2007, when the instant lawsuit was pending in the first instance trial, the Plaintiff and Defendant Seoul Special Metropolitan City concluded a sales contract to purchase the instant land’s land’s KRW 1,922,28,520 on the same day, and the Plaintiff did not return the purchase price amount to Defendant Seoul Special Metropolitan City Office’s land’s purchase without permission for the said land’s cancellation of the registration of ownership transfer from the said land’s purchase price.

(2) Meanwhile, with respect to the ditch site of this case, the defendant Seocho demanded the plaintiff to purchase the price of KRW 31,459,725,000 (the appraisal value premised on the use (land) as of June 26, 2006) from the plaintiff. On July 20, 2006, the plaintiff concluded a sales contract to purchase the ditch site of this case from the defendant Seocho-gu and paid the purchase price in full. After that, the plaintiff filed a lawsuit against the defendant Seocho-gu to the effect that the above sales contract was in violation of Article 66 (6) of the Urban Improvement Act and becomes null and void, and the above case continues to exist in the Seoul High Court (Seoul High Court 2009Na89285).

(3) In addition, on July 21, 2006, the day following the date when the sales contract for the instant road site was concluded, the defendant Seocho-gu notified the plaintiff that he would not report the commencement of construction without purchasing the instant road site and park site. Accordingly, the plaintiff would pay the down payment at 10% of the appraised amount by the defendant Seocho-gu on the date of notification of the authorization for completion of construction. The defendant demanded the plaintiff to pay 10% of the purchase price for the instant road site except the instant park site in advance as down payment. The plaintiff secured 3,129,398,50 won (the appraised amount of the instant road site among the fundamental infrastructure whose use was abolished at the time of the authorization of the transfer and the appraised amount of the newly installed road on the condition that the purchase price was 10% of the purchase price was settled on the date of notification of the authorization for completion of construction, and the plaintiff secured 3,129,398,600 won for the instant road site in advance on September 6, 2006.

(d) Imposition and payment of dues for settlement;

(1) After that, the defendant Seocho-gu withdrawn the position that the plaintiff should purchase the road site and park site of this case in advance during the process of the project of this case, and notified the appraisal result on December 31, 2007 on the road site of this case, park site, and newly constructed road and park site of the appraisal result, and notified the "the cost required to include the difference in the cost of appraisal in the land value of the rearrangement infrastructure to be installed newly as of the time of authorization after the appraisal for the free transfer of the rearrangement infrastructure under Article 65 (2) and (4) of the Urban Improvement Act and the appraisal for the calculation of the scope of attribution shall be completed, and the cost of appraisal shall be included in the land value of the rearrangement infrastructure to be installed newly as of the time of authorization after the completion of the rearrangement project and notification of the completion of the completion of the authorization."

(2) According to the above notification, the land price of the road to be installed in the project area of this case is KRW 58,058,564,00; KRW 77,374,322,886,00 in total; KRW 135,432,86,00 in total; the appraisal price of the road site of this case, which is a fundamental infrastructure for the disuse, is KRW 111,394,186,00 in total; the appraisal price of the park site of this case is KRW 70,823,493,00 in total; and the appraisal price of the park site of this case is KRW 182,217,679,00 in total; and the expenses incurred in conducting the appraisal are KRW 427,43,00 in total.

On the other hand, on July 15, 2009, the time when the approval of completion of the project of this case was notified, the defendant Seocho-gu decided that the construction cost for the newly built infrastructure (hereinafter "construction cost for the newly built infrastructure") was KRW 30,526,474,00 as the construction cost for the 25m connecting urban planning road (hereinafter "the road of this case") with the 25m connecting circulation section (hereinafter "the new distribution section") as the 30,526,47,925,00 as the new distribution route, and KRW 6,687,925,00 as the construction cost for the road due to distribution (i) the construction cost for the newly built site (the item falls under the construction cost for the new site), ③ the construction cost for the newly built park (the construction cost for the 3,532,31,000 as the 734,146,000 the construction cost for the development of the distributed water-friendly space.

(3) Accordingly, on July 14, 2009, the defendant Seocho-gu notified the plaintiff of the authorization of completion of the project of this case. On July 15, 2009, on the aggregate of KRW 182,217,679,63,00, the appraisal cost of KRW 427,43,00,00, and KRW 182,645,112,00, which is the value of fundamental infrastructure newly installed in the project of this case, KRW 135,432,86,00,00, KRW 41,480,876,000, KRW 176, KRW 76,76,000, KRW 350, KRW 569, KRW 360, KRW 569, KRW 360, KRW 465, KRW 965, KRW 965, KRW 3065, KRW 965,206, KRW 96365,2065,

(e) Results of the appraisal by this Court;

The non-party appraiser of this court presented the results by dividing the market price of fundamental infrastructure to be abolished or newly established within the project area of this case into the base date of January 3, 2005, which is the date of announcement of the authorization for the implementation of the project of this case, and the purpose of the project is to be changed by the implementation of the project (the site) based on the use (the site) and the previous use (the road, park, etc.).

According to one appraisal result, the roads and parks to be disused are 195,172,162,00 won, the roads and parks to be newly constructed are 134,767,793,000 won, and the roads and parks to be disused are 128,125,279,000 won, and the roads and parks to be newly constructed are 118,16,415,00 won.

On the other hand, the road site of this case was changed to the site on January 26, 2006, and the site of this case was changed to the site on August 21, 2006 and October 31, 2007.

[Ground of recognition] Gap evidence Nos. 1 through 21, Eul evidence Nos. 1 through 8 (including paper numbers, omitted), the testimony of the non-party witness, the result of the non-party’s appraisal, the purport of the whole pleadings

2. Relevant provisions;

(a) The Urban Improvement Act;

Article 2 (Adjustment of Terms)

The definitions of terms used in this Act shall be as follows:

4. The term "maintenance infrastructure" means roads, water supply systems, parks, public parking lots, common parking lots, common utility conduits (referring to the common utility conduits under subparagraph 9 of Article 2 of the National Land Planning and Utilization Act; hereinafter the same shall apply), and other gas supply facilities necessary for residents' living, which are prescribed by Presidential Decree;

5. The term "joint-use facilities" means play grounds, village halls, joint operation places used jointly by residents, and other facilities prescribed by Presidential Decree;

Article 65 (Reversion of Rearrangement Basis Facilities, Land, etc.)

(2) A new infrastructure built in the course of implementing an improvement project by a project implementer, other than the head of a Si/Gun or housing project, shall gratuitously vest in the State or a local government to manage such infrastructure, and a infrastructure owned by the State or a local government to be ceased to be used due to the implementation of an improvement project shall be transferred gratuitously to the project implementer to the extent equivalent to installation costs of

(b) Enforcement Decree of the Urban Improvement Act;

Article 3 (Maintenance Basis Facilities)

The term "facilities prescribed by Presidential Decree" in subparagraph 4 of Article 2 of the Act means the facilities falling under each of the following subparagraphs:

1. Greenbelts;

2. Rivers:

3. Public vacant land;

4. Scenics:

5. Fire extinguishing water supply systems.

6. Emergency shelters;

7. Gas supply facilities;

8. Joint-use facilities under subparagraph 5 of Article 2 of the Act (hereinafter referred to as "joint-use facilities") to be installed in a rearrangement zone under subparagraph 1 of Article 2 of the Act designated and publicly announced for a residential environment improvement project, which are included in the project implementation plan under Article 30 of the Act (hereinafter referred to as "project implementation plan"), managed by the head of the relevant Si/Gun/autonomous Gu (hereinafter referred to as "head of the relevant Si/Gun") (hereinafter referred to as "head of the relevant Si/Gun");

Article 4 (Joint Use Facilities)

The term "facilities prescribed by Presidential Decree" in subparagraph 5 of Article 2 of the Act means the facilities falling under each of the following subparagraphs:

1. Gu board, laundry, toilets, and waterworks for joint use;

2. Facilities for older persons, such as nursing homes, child-care centers, senior citizen halls, etc.;

3. Other facilities used jointly by residents, which are for purposes similar to those referred to in subparagraphs 1 and 2.

(c) National Land Planning and Utilization Act (hereinafter “National Land Planning Act”);

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

9. The term "common ditch" means a facility installed underground to improve scenery, to preserve road structures, and to ensure smooth traffic flows by commonly housing facilities buried underground, such as supply facilities for electricity, gas, and water supply, communications facilities, and sewerage facilities;

3. The parties' assertion

A. The plaintiff's assertion

Although the appraisal of the road site and park site of this case should be based on the current status where the above site was actually used at the time of the public announcement of the project implementation approval as to the road site of this case and park site of this case as the result of the appraisal by the Nonparty, the appraisal based on which the Defendant Seocho-gu calculated the purchase price for the road site of this case and park site of this case is based on the premise of the "site" of this case, which is the use developed (change) due to the project implementation of this case, not the "road" or the "park" of this case, not the "road" or the "park", and there is an error in violation of Article 23 (2) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works (hereinafter the "Public Works Act"). Meanwhile, the construction cost of the newly constructed infrastructure recognized by the Defendant Seocho-gu was omitted from the construction cost of sewage 25,62,48,000 won, and there was an error including the construction cost of this case 25m.

B. The defendants' assertion

Article 23(2) of the Enforcement Rule of the Public Works Act cannot be applied to the housing reconstruction project of this case, which is not a public interest project, and it is legitimate to comprehensively assess the land category by taking into account the factors of land change as factors of land price change. Thus, the market price of the road site and park site of this case shall be calculated by one of the appraisal results of the Nonparty, and the cost of sewage and rocking construction should be borne by the Plaintiff in accordance with the principle of the burden of the person who caused the damage. The authorization of this case imposing the burden of sewage and rocking installation cost of this case was fair and unreasonable. Therefore, the Plaintiff’s assertion disputing the validity of

4. Determination

A. Return of unjust enrichment

(1) The nature of the imposition and payment of settlement;

According to Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, where the value of the newly-built maintenance infrastructure does not reach the value of the existing maintenance infrastructure, the Plaintiff shall gratuitously acquire the existing maintenance infrastructure owned by the Defendants, instead of devolving the newly installed maintenance infrastructure to the Defendants without compensation, within the extent equivalent to the installation cost of the new maintenance infrastructure, and where the value of the newly-built maintenance infrastructure falls short of the value of the existing maintenance infrastructure, the Plaintiff shall pay a balance equivalent to the difference as the purchase cost of the existing maintenance infrastructure. The imposition and payment of the settlement amount between the Plaintiff and the Defendant (including the payment of the down payment in the name of the road site in this case) should be deemed to be the settlement of

(2) Determination criteria for use at the time of market appraisal of the infrastructure subject to disuse

Among the plaintiff's assertion, the appraisal of the road site and park site of this case shall be based on the current status where the above site is actually used at the time of public announcement of project implementation authorization.

In light of the language and text of Article 66(4) and (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the former part of the main sentence of Article 6(6) does not appear to stipulate the method of evaluation as the base date for the evaluation of land sold under a private contract under the provisions of paragraph (4). Even when considering the order, structure, and purpose of special cases for the disposal of State and public property, etc. under the above provision, the above provision purports to stipulate that if a private contract is concluded at any time to prevent any change in the purchase burden according to specific time during which a private contract for the State and public property is concluded, the price shall be determined as the base date for the announcement of the authorization for the project implementation. It is difficult to interpret that the former part of Article 66(4) and the former part of the main sentence of Article 6(6) provides for the method of evaluation to be assessed by the current status of the base date (see Supreme Court Decision 2009Da69548, Jan. 28, 2010).

In addition, if the purport of the entire argument is added to the statement No. 8, the testimony of the non-party witness, and the fact-finding of the non-party of this court, the real estate price is currently valueed based on the current value of future interest generated from the possession of real estate, i.e., future interest. In this case, the land whose use is abolished in the park in this case was used as a housing site, and there was a high possibility of using it as a future site due to diversity of usage, which is the characteristics of real estate, as the neighboring land was used as a housing site. The park site in this case was planned to be used as a whole in accordance with the project in this case. In fact, the park site in this case was intended to be used as a site in this case, and the land category was changed to a site in this case. In light of this, it is not reasonable to evaluate the land price in this case as a park at a certain point in time when the market price of fundamental infrastructure such as the road site and park site in this case is evaluated to be lower than the site price in this case.

(3) Whether the construction cost for relocation of sewage car constitutes “building cost for the maintenance infrastructure newly installed” under the latter part of Article 65(2) of the Act on the Maintenance and Improvement of Urban Areas

In light of the above facts, the sewage cancer constructed by the plaintiff within the project area of this case constitutes a "new infrastructure" under Article 2 subparagraph 9 of the National Land Planning and Utilization Act and Article 2 subparagraph 4 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents" under the former part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Since the aforementioned construction cost of this case constitutes "construction cost for newly installed infrastructure" under the latter part of Article 65 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, it can be known that there were KRW 25,062,48,00 as a relocation construction cost, the above construction cost of this case constitutes "construction cost for newly installed infrastructure" under the latter part of Article 65

The Defendants asserted that since the head of Seocho-gu added the condition that the Plaintiff should bear the cost of installing the sewerage pursuant to Article 32(2) of the former Sewerage Act (wholly amended by Act No. 8014, Sep. 27, 2006) and Article 26(1) of the Seoul Metropolitan Government Ordinance on the Use of Sewerage, the Plaintiff’s cost of installing the sewerage pursuant to the above conditions does not constitute “the cost of installing the new infrastructure installed” under the latter part of Article 65(2) of the Domini Act, and thus, the latter part of Article 65(2) of the Domini Act refers to “the cost of installing the new infrastructure installed” under the former part of the same Article, and the latter part of Article 65(2) of the Domini Act refers to “the cost of installing the new infrastructure installed by the project implementer under the implementation of the improvement project,” and the latter part of the 6th project zone (see, e.g., Supreme Court Decision 2016Do1664, Apr. 16, 2019).

In addition, the defendants asserts that the conditions attached to the burden of the person who incurred the installation of the sewerage at the time of the authorization of this case were not revoked due to administrative litigation, etc., and thus, the above conditions of authorization were generated as fairness and influence, and the above conditions of authorization cannot be deemed null and void as a matter of course. Thus, the plaintiff cannot dispute the validity of the settlement amount imposed

On the other hand, if there is a dispute which has already been determined as the limit of the filing period of a lawsuit by the husband who was attached to an administrative disposition and has already been determined as the result of the dispute, any other legal act such as the sale and purchase under private law, etc., which is separate from the administrative disposition to which the burden has been imposed, shall not be denied its validity. However, the legal act such as the sale and purchase under private law, etc., which is subject to the performance of the burden, shall be judged as to whether the legal act is in violation of social order or compulsory provisions (see Supreme Court Decision 2006Da18174, Jun. 25, 2009, etc.). Thus, since the above conditions of authorization have a conflict of interest, it cannot be asserted as to the validity of the "payment of settlement and payment" of the purchase price of the existing fundamental infrastructure between the plaintiff and the defendants, the above assertion by the defendants is without merit.

(4) Whether the construction cost of the 25m road construction in the instant case is included in the construction cost of the fundamental infrastructure

As to the Plaintiff’s assertion that construction cost of new infrastructure for improvement should be excluded from the construction cost of road construction cost of 25 meters in the instant case, it is reasonable to view that the Plaintiff and the Defendant agreed to be compensated by deducting the cost of road construction cost of the instant 25 meters from the cost of the transfer of the disused infrastructure after the Plaintiff borne the cost of road construction cost of the instant 25 meters from the time of the authorization of the instant case. Therefore, the Defendant’s assertion on this part is rejected

(5) Whether the imposition and payment are effective

In light of the legislative intent of the latter part of Article 65(2) of the Do Government Act, since this is a mandatory provision compelling a transfer of the fundamental infrastructure to be disused within the extent equivalent to the installation cost of the fundamental infrastructure to be newly installed by a private project implementer, it is null and void in violation of the above provision (see, e.g., Supreme Court Decision 2006Da18174, Jun. 25, 2009). As seen earlier, the construction cost of the new fundamental infrastructure recognized by the Defendants is KRW 41,480,876,88,00, and the construction cost of the existing fundamental infrastructure exceeds KRW 25,062,48,00,00, the construction cost of the new fundamental infrastructure installed by the Plaintiff exceeds KRW 36,543,364,00 (the total construction cost of the new fundamental infrastructure to be abolished to the private project implementer + KRW 250,706,379,740,797,709,79,706,79,794,7,7007

Nevertheless, the Defendants did not recognize the construction cost for the new infrastructure facilities installed by the Plaintiff as the construction cost for the new infrastructure facilities for improvement, and recognized only the amount excluding it as the construction cost for the new infrastructure facilities for improvement, and imposed the difference as the settlement amount on the Plaintiff. The imposition of the settlement amount was made to the Plaintiff who did not pay the purchase price for the existing infrastructure facilities for improvement, and thus, it was null and void in violation of Article 65(2) of the Urban Improvement Act.

B. Scope of return of unjust enrichment

Furthermore, as to the amount of unjust enrichment to be returned by the Defendants, the above facts revealed that the Plaintiff did not pay the purchase cost of the existing improvement infrastructure to the Defendant, but the Defendant Seoul Special Metropolitan City, which delegated the authority to purchase and sell the land of the Si Park in the case of this case to the Defendant and the Defendant, jointly and severally liable to return the said money to the Plaintiff according to the imposition of the settlement money by the Defendant Seocho-gu, as the sum of KRW 5,196,837,040 (the sum of KRW 3,129,398,500 + KRW 2,066,438,540,000 (the sum of KRW 3,129,398,50) pursuant to the imposition of the settlement money by the Defendant Seocho-gu.

C. Sub-committee

Therefore, the Defendants are jointly and severally liable to pay to the Plaintiff KRW 5,196,837,040 and KRW 3,129,398,50, whichever is the payment date, KRW 2,066,438,540 on September 6, 2006, and KRW 2,06,438,540 on July 16, 2009, and KRW 5% per annum prescribed by the Civil Act until February 26, 2010, and damages for delay calculated at the rate of 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

5. Conclusion

Therefore, since the plaintiff's claim against the defendants is well-grounded, it shall be accepted respectively, and it is so decided as per Disposition.

[Attachment]

Judges Go Young-gu (Presiding Judge)