[1] Whether a national expressway, such as an expressway, constitutes a basic living facility for a project operator to provide a person subject to relocation measures (negative)

[2] In a case where a project developer supplies a site for facilities to a person who supplies electricity, gas, heating, etc. for a cost higher than the cost for the construction of a housing site, whether the site cost is included in the cost for the construction of a basic living facility

[3] Whether charges for metropolitan transport facilities fall under the cost of establishing basic living facilities (negative)

[4] The requirements and scope of the cost of housing site development to be included in the cost of basic living facilities and the burden of proving the cost (=the burden of claiming that the cost of basic living facilities is the cost of basic living facilities)

[5] Whether the road where a project operator is required to provide the basic living facilities to a person subject to relocation measures includes "road installed in a public project zone by a project operator, which connects roads outside a housing complex, etc. within the relevant project zone to a road located outside the project zone" (affirmative in principle)

[1] Notwithstanding the length and width of a road for which a project operator is required to provide a basic living facility to a person subject to relocation measures, such road includes a road corresponding to an arterial facility as stipulated in Article 2 subparag. 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) (the same as the current Housing Act), or a road that connects a road located outside the relevant housing complex to a same kind of road located outside the relevant housing complex, i.e., a road that connects a road located outside the relevant housing complex. However, a road cannot be deemed as being included in a basic living facility if there are special circumstances where it cannot be deemed that a road is an essential facility in the housing complex, etc. located within the relevant housing complex and it cannot be deemed that it is an essential facility for

[2] In a case where a project developer supplied a site for facilities to a person who supplies electricity, gas, heating, etc. with a cost higher than the cost for building a housing site, the cost for building a site cannot be deemed to have been transferred to the cost for building a basic living facility, and such cost shall not be included in

[3] The charges for metropolitan transport facilities only imposed in metropolitan areas are for the construction and improvement of metropolitan transport facilities in metropolitan areas. As such, the Mayor/Do Governor imposes expenses incurred in increasing the value of housing sites and housing in metropolitan areas on the project implementer. Any person subject to relocation measures who is supplied with a housing site for migrants in metropolitan areas also obtains profits from the construction and improvement of metropolitan transport facilities. Accordingly, the charges for metropolitan transport facilities cannot be deemed as falling under the cost of establishing basic living facilities to be provided to the person subject to relocation measures.

[4] The cost of the item included in the cost of housing site development in the cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of basic living facilities, namely, the relationship between cost of cost of cost of cost of cost of cost of cost of cost of basic living facilities and cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of cost of basic living facilities, but the cost of cost of cost

[5] A road installed by a project operator in a public works zone, which is an essential facility for a housing complex, etc. in the project zone to function as a connecting a road outside the project zone and the entrance of the housing complex, etc. in the project zone, shall be included in the road where the project operator is required to provide the basic living facilities to the person subject to relocation measures, unless there

[1] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 2 subparag. 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) / [2] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007) / [3] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Intercity Transport in Metropolitan Areas (amended by Act No. 8665 of Oct. 17, 2007)

[1] [5] Supreme Court Decision 2013Da29509 Decided July 23, 2015 (Gong2015Ha, 1202) / [1] Supreme Court Decision 2012Da3303, Sept. 26, 2013; Supreme Court Decision 2014Da8997 decided Oct. 15, 2015 (Gong2015Ha, 1653) / [2] Supreme Court Decision 2012Da37374, 37381 Decided January 16, 2014; Supreme Court Decision 2012Da95325 Decided January 23, 2014 / [3] Supreme Court Decision 2012Da84325 decided Oct. 23, 2014; Supreme Court Decision 2013Da841384, Apr. 23, 2014]

Plaintiff 1 and one other (Attorney Park Hong-hoon, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Ansan-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na92090 decided November 25, 2014

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

1. The plaintiffs and the defendant argued in the grounds of appeal that in calculating the unit price of supply of the sites of migrants in the Seongbuk-nam School Site Development Project, they dispute whether the facilities, such as motorways, are included in the basic living facilities.

2. The plaintiffs' grounds of appeal are examined.

(a) Whether the motorway falls under the basic living facilities;

A road that a project implementer is required to provide a basic living facility to a person subject to relocation measures includes a road that falls under an arterial facility prescribed by Article 2 subparag. 8 (amended by Act No. 9405, Feb. 3, 2009) of the former Housing Act (amended by Act No. 9405, Feb. 3, 2009; hereinafter the same shall apply) (see, e.g., Supreme Court Decision 2012Da3303, Sept. 26, 2013). However, a road cannot be deemed a basic living facility if there are special circumstances, including a road that connects a road outside the relevant housing complex to a same kind of road outside the relevant housing complex (see, e.g., Supreme Court Decisions 2013Da29509, Jul. 23, 2015; 2014Da89797, Oct. 15, 2015).

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court is justifiable to have determined that the Gyeong-Seoul Expressway installed in the instant project district does not constitute a basic residential facility. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the area where basic living

(b) Whether the traffic squares attached to an expressway falls under the basic living facilities;

The lower court determined that only the portion of 27,291 square meters remaining 27,291 square meters, excluding the portion of 306,920 square meters and the remaining 27,291 square meters attached to the Gyeong Highway, among the total 334,211 square meters in the instant project district, constituted a road facility

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the area where basic living facilities

C. Whether the general squares falls under the basic living facilities

The lower court determined that a general plaza in the instant project district did not constitute an arterial infrastructure. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on fundamental living facilities, contrary to what is alleged

(d) Whether substations, gas supply facilities, and integrated energy supply facilities are the basic living facilities;

If a project implementer supplies a site for facilities to a person who supplies electricity, gas, and heating for a cost higher than the cost of housing site development, the cost of the site cannot be deemed to have been transferred to the sale price, and thus, it should not be included in the cost of installing basic facilities (see, e.g., Supreme Court Decisions 2012Da37374, 37381, Jan. 16, 2014; 2012Da95325, Jan. 23, 2014).

The lower court acknowledged that the Defendant supplied the respective sites of substations, gas supply facilities, and integrated energy supply facilities to the Korea Electric Power Corporation that supplies electricity, gas, and heating to the instant project district at least the housing site development cost, and rejected the Plaintiffs’ assertion that each of the above sites should be included in the area of basic living facilities on the ground that there is no evidence to deem that the Defendant had paid the site cost to the Plaintiffs, including the sale price.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the area where basic living facilities

(e) Whether railroad facilities, rivers, reservoirs, and automatic waste collection facilities fall under the basic living facilities;

The lower court determined that the railroad facilities fall under the metropolitan transport facilities and do not fall under the basic living facilities, and that the river, reservoir, and waste automatic collection facilities do not fall under the basic living facilities for which the project implementer bears the duty of installation.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the area of installation of basic living

(f) Whether the expenses related to the metropolitan transport facilities (mactu-sea roads, identification line charges, charges for metropolitan transport management, and other expenses) are included in the cost of installing the basic living facilities;

Since metropolitan transport facility charges imposed only in metropolitan areas are for the construction and improvement of metropolitan transport facilities in metropolitan areas, the costs incurred in increasing the value of housing sites and housing in metropolitan areas are to be borne by the Mayor/Do Governor to the project implementer. Any person subject to relocation measures who is supplied with the housing site for migrants in metropolitan areas also gains profits from the construction and improvement of metropolitan transport facilities. Therefore, the metropolitan transport facility charges cannot be deemed to constitute the cost of establishing basic living facilities to be provided to the person subject to relocation measures as a basis for living (see, e.g., Supreme Court Decisions 2012Da84233, Jan. 23, 2014; 2012Da87492, Mar. 13, 2014).

The lower court’s determination is justifiable in that it excludes the costs associated with metropolitan transport facilities (e.g., common morals-yang roads, identification line charges, and other metropolitan transport processing costs) from calculating the cost of creating basic living facilities in accordance with the aforementioned legal doctrine. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or

(g) Whether the expenses incurred in installing basic living facilities are included in the construction cost of a structure hole, a river hole, a reservoir hole, a light crossing river wharf, a waste transport pipe, and a waste incineration plant;

Of the cost of housing site development, the cost of the item appropriated for the cost of housing site development is recognized to be related to the cost of construction of basic living facilities, i.e., the cost of the cost of construction of basic living facilities, but the cost of construction of basic living facilities is recognized to be paid within the ratio of the cost of construction of basic living facilities to the total or total project area. The cost of construction of basic living facilities is included in the cost of construction of basic living facilities, and the burden of proof of such relevance is asserted (see Supreme Court Decision 2014Da85391, Jul. 9,

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and evidence duly admitted, the lower court is justifiable to have determined that the cost of the construction of structures, the river hole, the reservoir hole, the border crossing river, the waste transport pipe, the waste incineration plant, and the cost of the construction of the basic living facilities is not included in the cost of the construction of the living facilities. In so determining, the lower court did not err by misapprehending the legal doctrine on

3. The defendant's grounds of appeal are examined.

(a) Scope of roads included in basic living facilities;

2. As seen above 2. A, roads that a project implementer is required to provide a basic living facility to a person subject to relocation measures include roads that connect a road located outside a housing complex to the same kind of roads outside a housing complex, notwithstanding their length or width. In addition, roads installed in a public-service zone by a project implementer, which connect the entrance of a housing complex, etc. in the relevant project zone and other roads located outside a housing complex within a housing complex, shall be included in such roads, barring special circumstances, as are essential facilities for a housing complex, etc. in the project zone and for all residents to pass (see Supreme Court Decision 2013Da29509, Jul. 23, 2015).

The lower court determined that the remaining State-funded local highways (No. 23 lines and No. 57 lines) and local roads (No. 23 lines and No. 57 lines) among the entire roads within the instant project district constituted the basic living facilities. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the scope of roads, which are basic living facilities, contrary to what is alleged in the grounds of appeal.

(b) Calculation of expenses incurred in establishing basic living facilities related to underground roads, tunnels, bridges, bridges, etc.;

The lower court recognized that both underground roads, tunnels, bridges (rivers, etc.) and bridges (rivers) in the instant project district are installed on roads corresponding to basic living facilities, not national expressways, and determined that the entire construction cost of the said facilities is included in the cost of basic living facilities.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the cost of installing basic living facilities and unjust enrichment, as otherwise alleged in the grounds of appeal.

4. The plaintiffs and the defendant's appeal are all 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 Kim Chang-suk (Presiding Justice)