(영문) 대법원 2015.12.10.선고 2015다21943 판결

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Defendants 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

A. As to the first ground for appeal

A road for which a project operator is required to provide a basic living facility to a person subject to relocation measures, notwithstanding its length or width, includes not only a road corresponding to an arterial facility defined in Article 2 subparagraph 8 of the Housing Act, but also a road connecting a road located outside the relevant housing complex with the same kind of road located outside the relevant housing complex (see, e.g., Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road installed within a public-service zone by a project operator to connect a road located outside the relevant housing complex, etc. within the relevant project zone, including a road in charge of the entrance of the housing complex, etc. and the functions connected outside the project district. However, if there are special circumstances that cannot be deemed an essential facility for the achievement of functions of the housing complex, etc. in the project zone and the passage of all residents, it cannot be deemed that it is included in the basic living facility (see, e.g., Supreme Court Decisions 2013Da29509, Jul. 23, 2015).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is justifiable for the court below to have determined that the Gyeong-Seoul Highway established in the project district of this case does not constitute a basic road as a living facility. In so doing, contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles

B. On the second ground for appeal

1) Of the cost of housing site development, the cost of the item included in the cost of the construction of the housing site is recognized as having been paid for the relevant cost of the cost of the construction of the basic living facilities, namely, the relationship between the cost of the cost of the construction of the basic living facilities and the cost of the construction of the basic living facilities, but the cost of the basic living facilities is included in the cost of the basic living facilities within the ratio of the total or total project area of the cost of the construction of the basic living facilities, and the burden of proof of the relevance is on the part of claiming that the cost of the item is the cost of the basic living facilities (see Supreme Court

2) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court is justifiable to have determined that the cost of the construction of structures, the investigation and excavation of cultural heritage, wild tree plant construction, and construction waste disposal expenses does not constitute the cost of the construction of basic living facilities on the grounds stated in its reasoning. In so doing, it did not err by misapprehending the legal doctrine on the scope of

3) However, although the lower court determined that the cost of the reserve fund does not include the cost of the basic facilities, it is difficult to accept such determination for the following reasons. According to the evidence duly admitted by the lower court, it is reasonable to view that the cost of the reserve fund constitutes the cost of the construction of basic facilities equivalent to the ratio corresponding to the size of the basic facilities out of the total project area in light of the nature of the expenditure, since it can be known that the cost of the reserve fund is an item of the cost calculated in preparation for unexpected construction works at the time of calculating the cost of the construction of the housing site among the construction of the housing site. Therefore, the lower court erred by misapprehending the legal doctrine

C. As to the fourth ground for appeal, the lower court did not have to further examine the part of each of the above construction costs on the premise that only some of the construction costs were included in the basic living facilities installation costs, since the total construction costs of underground lanes, bridges, bridges (rivers, etc.) and tunnels were included in the basic living facilities installation costs.

Furthermore, examining the reasoning of the judgment below in light of the records, the court below is just in holding that the construction cost of underground lanes, bridges, bridges (rivers, etc.) and tunnels cannot be deemed to have been doublely borne by the buyers. Contrary to the allegations in the grounds of appeal, 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 on the scope of the installation cost of basic living facilities.

2. As to the Defendants’ grounds of appeal

A. With respect to the assertion on the scope of roads which are basic living facilities, a project implementer is required to provide a person subject to relocation measures with basic living facilities, the roads constituting arterial facilities as stipulated in Article 2 subparagraph 8 of the Housing Act, i.e., roads located outside the relevant housing complex, notwithstanding their length or width (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). Of course, roads installed within the relevant housing complex by a project implementer, which are essential facilities for the achievement of the functions of the housing complex, etc. in the relevant housing complex and the passage of all residents in the relevant housing zone, are included in the roads (see Supreme Court Decision 2013Da29509, Jul. 23, 2015).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, it is justifiable for the court below to have determined that the high speed roads between the State-funded local highway 23 lines, 57 lines, street crossings, and road between the city-funded local highway installed in the project district of this case constituted the basic facilities for living, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the scope of roads which are the basic facilities

B. As to the assertion on the scope of the cost of installing basic living facilities

The lower court determined that each of the above construction costs is included in the cost of basic living facilities, on the ground that it is a kind of facility for the transportation of underground roads, bridges, bridges, and tunnels and roads, and that part of each of the above facilities is not recognized to have been installed on the Gyeong-Seoul Highway or Tae-Seoul Highway, and that each of the above construction costs is included in the cost of basic living facilities.

Examining the reasoning of the judgment below in light of the records, although there are somewhat inappropriate points in the reasoning of the judgment below, the conclusion of the court below that each of the above construction costs included in the cost of basic living facilities installation is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the scope of

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part against the plaintiffs among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendants' appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices