[1] In a case where an executor of a public project included installation costs of basic living facilities under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects in a special supply contract for a housing site for which the executor of a public project entered into with a person subject to relocation measures, whether such part is null and void because it violates the mandatory law

[2] Where the operator of a public-service project sets the sales price of a re-resident's housing site at a certain amount at a discount from the cost of housing site development, the standard for determining whether the cost of basic living facilities is included in the sale price, and the method for calculating the amount of unjust enrichment equivalent to the cost of basic living facilities, which is included in the sale price of a re-resident's housing site, / Where calculating the amount of unjust enrichment equivalent to the cost of basic living facilities, which is included in the sale price of a re-resident's housing site, whether the project operator should be based on the total project area actually applied when calculating the cost of basic living facilities,

[3] Whether a public project operator’s basic living facilities to be provided to a person subject to relocation measures includes “road connecting roads located outside the relevant housing complex to the same kind of roads located outside the relevant housing complex” (affirmative), and whether the “road installed inside the public project zone by the project operator to connect roads located outside the relevant housing complex, etc. with the entrance of the relevant housing complex, etc. within the relevant project zone” (affirmative in principle)

[4] In a case where the method of calculating the cost of the basic living facilities site is at issue where the existing road and the State and public land, including the water supply part, are gratuitously reverted to the Korea Land Corporation among the project site for the housing site development project implemented by the Korea Land Corporation, the case holding that the judgment below erred by misapprehending legal principles in calculating the cost of the basic living facilities site except for the area equivalent to the ratio of the cost of the basic living facilities

[1] In a special supply contract for a housing site concluded between a person subject to relocation measures and a project operator for a public project, if the person subject to relocation measures was to pay the basic living facilities installation cost as stipulated in Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Land Compensation Act”) to the project operator by including the basic living facilities installation cost in the sale price, the portion of the special supply contract included the basic living facilities installation cost in the sale price is null and void as it violates Article 78(4) of the former Land Compensation Act, which is a mandatory law.

[2] In a case where the executor of a public project sets the sale price of a re-resident's housing site at a certain amount at a discount from the cost of creating the housing site, whether the sale price exceeds the amount obtained by deducting the cost of the basic living facilities from the cost of creating the housing site, and whether the cost of the basic living facilities was included in the sale price through a mutual relation. In this case, Article 78 (4) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter "former Land Compensation Act") prohibits a project operator from paying the cost of the basic living facilities to the person subject to the relocation measures, but does not provide for the particulars of the sale price that can be borne by the person subject to the relocation measures, and thus, it is not necessary to newly calculate the cost of the basic living facilities from the cost of creating the housing site by deducting the items corresponding to the cost of the basic living facilities from the cost of creating the housing site in a way that deducts them.

In addition, it is nothing more than dispute over whether to exclude urban support facilities or exclude the reduced area of urban support facilities from the paid supply area when calculating the cost of housing site development which is used as the basis of the determination of the cost of housing site for migrants. Therefore, it cannot be said that there is a relation to the transfer of cost of the basic living facilities for those subject to relocation measures, and the project operator violates Article 78(4) of the former Land Compensation Act. Therefore, in calculating the unjust enrichment amount equivalent to the cost of the basic living facilities included in the sale price of housing site for migrants, the total project area and project cost actually applied when calculating the cost of housing site development which the project operator uses as the basis of the determination of the sale price of housing site for migrants shall be based on the total project area and the cost of the project and the cost of the cost of the supply.

[3] A road for which a project executor is required to provide a basic living facility to a person subject to relocation measures shall include, notwithstanding its length and width, roads corresponding to arterial facilities as stipulated in Article 2 subparagraph 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009), namely, roads connecting roads located outside the relevant housing complex to roads of the same kind located outside the relevant housing complex, as well as roads which connect a road located outside the relevant housing complex. A road installed within a public project zone by a project executor to connect a road located outside the relevant housing complex, etc. shall also be included as facilities essential for the achievement of functions of the housing complex, etc. in the relevant project zone and for the passage of all residents,

[4] In a case where the method of calculating the cost of the site of the housing site development project implemented by the Korea Land Corporation, including the existing road and the water supply, has been reverted to the Korea Land Corporation without compensation, and where the method of calculating the cost of the site of the basic living facilities is at issue, the case holding that the court below erred by misapprehending legal principles in calculating the cost of the basic living facilities by calculating the cost of the site of the basic living facilities, inasmuch as the amount of unjust enrichment to be returned by the Korea Land Corporation to the persons subject to relocation measures is equivalent to the cost of the basic living facilities included in the sale price of the housing site of the migrants, one of the constituent elements is calculated by multiplying the cost of the basic living facilities by the total cost of the area of the entire land included in the total cost of the site, which is the basis for calculating the sale price, and where there is any portion gratuitously reverted to the Korea Land Corporation in the project site, the area of the gratuitously reverted portion shall also be included in the cost

[1] Article 78 (1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works / [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); Article 741 of the Civil Act / [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 2 subparagraph 8 (1) and (4) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) / [4] Article 78 (1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007)

[1] [1] [3] Supreme Court Decision 2014Da8997 Decided October 15, 2015 (Gong2015Ha, 1653) / [1] [3] Supreme Court Decision 2013Da29509 Decided July 23, 2015 (Gong2015Ha, 1202) / [1] Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201 (Gong201Ha, 140)

Attached 1 List of Plaintiffs (Attorney Kim Jong-tae, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Park Ho-ho et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 2012Da107723 Decided February 13, 2014

Seoul High Court Decision 2014Na12593 decided July 17, 2015

Of the remainder of the judgment below's rejection of the lawsuit, the part concerning each corresponding amount stated in the "amount of appeal" in the attached Form 2 sheet shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on whether the cost of housing site development is excluded from reserve funds, some underground roads, bridges, and tunnels construction costs, and on the treatment of urban support facilities sites and their depreciation area (ground of appeal Nos. 2, 3, and 5 related to the cost of housing site development, points 6, and 7)

A. In a special supply contract for a housing site concluded between a person subject to relocation measures and a project operator, if a person subject to relocation measures was to pay the project operator the cost of installing the basic living facilities as stipulated in Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Land Compensation Act”), thereby including the cost of installing the basic living facilities in the sale price, thereby making the person subject to relocation measures pay the cost of installing the basic living facilities to the project operator, the portion of the special supply contract included the cost of installing the basic living facilities in the sale price in violation of Article 78(4) of the former Land Compensation Act, which is a mandatory law (see, e.g., Supreme Court en banc Decision 2007Da63089, 63096, Jun

Meanwhile, in cases where a project operator determines the sale price of a resettled housing site at a certain amount at the cost of housing site development, whether the sale price exceeds the “amount obtained by deducting the installation cost of basic living facilities from the cost of housing site development” and the scope thereof should be determined. Article 78(4) of the former Land Compensation Act prohibits a project operator from including the installation cost of basic living facilities in the sale price through mutual relations. As such, Article 78(4) of the former Land Compensation Act prohibits a project operator from imposing the installation cost of basic living facilities on a person subject to relocation measures, but does not stipulate the expenses that the project operator may actively require relocation measures or the details of the sale price that he/she may receive from the person subject to relocation measures. As such, since the housing site development cost, which the project operator had used as the basis for the determination of the sale price of the housing site development cost of the actual resettled housing site, is to calculate the “amount obtained by deducting the installation cost of basic living facilities from the cost of housing site development,” and it does not constitute a new calculation of the construction cost that can be imposed on the person subject to relocation (see, etc.

In addition, it is nothing more than dispute over whether to exclude urban support facilities or exclude the reduced area of urban support facilities from the paid supply area when calculating the cost of housing site development which is used as the basis of the determination of the cost of housing site for migrants. Therefore, it cannot be said that there is a relation to the transfer of cost of the basic living facilities for a person subject to relocation measures, and the project operator violates Article 78(4) of the former Land Compensation Act. Therefore, in calculating the unjust enrichment amount equivalent to the cost of the basic living facilities included in the sale price of housing site for migrants, the total project area and project cost actually applied when calculating the cost of housing site development which the project operator uses as the basis of the determination of the sale price of housing site for migrants shall be based on the total project area and the amount of the paid supply area.

B. The lower court calculated the “amount obtained by deducting the cost of installing basic living facilities from the cost of housing site development in comparison with the sale price” by excluding the cost of construction of the housing site from the cost of construction of the housing site and excluding the cost of construction of the urban support facilities, not from the cost of construction of the housing site, as when the Defendant calculated the cost of construction of the housing site based on the determination of the sale price of the unsettled housing site.

The above decision of the court below is just in accordance with the above legal principles, and it does not err in the misapprehension of legal principles as to the calculation of the cost of housing site formation, the area of housing site supply, the area of basic living facilities area, etc., and contrary to the allegations in the grounds of appeal, which affected the conclusion of the judgment in this case due to the violation of the rules of evidence, misconception of facts, mistake of facts, net order of reasons, and double inclusion of the cost of housing site development in the reserve fund and underground tea, bridge and tunnel, etc., and the violation of the principle of equality,

2. As to the grounds of appeal on the cost of installing basic living facilities (the grounds of appeal Nos. 1, 4, and 5 pertaining to the cost of installing basic living facilities)

A. Of the grounds of appeal No. 5, as to the assertion on the cost of installing basic living facilities

The allegation in the grounds of appeal that the total construction cost shall be included in the cost of basic living facilities as well as the total construction cost of the specifications of electrical construction completion, which is KRW 25,115,40,000, and the total construction cost of the specifications of construction completion attached to the transfer agreement, is included in the cost of basic living facilities. Therefore, the allegation in the grounds of appeal that the cost of basic living facilities should be included in the cost of basic living facilities

B. Regarding ground of appeal No. 4

(1) The lower court rejected the Plaintiffs’ assertion that urban support facilities in the instant project district should be included in roads, the basic living facilities of which are 116,024 square meters of roads included in the urban support facilities site, on the ground that the nature as urban support facilities is not different even if Gyeonggi-do constructed a road in part of the urban support facilities site, since it is a road for traffic inside the urban support facilities, it cannot be deemed as a basic living facilities.

(2) However, the lower court’s determination is difficult to accept for the following reasons.

A road for which a project operator is required to provide basic facilities to a person subject to relocation measures shall be included, notwithstanding its length and width, in such roads as correspond to arterial facilities stipulated in Article 2 subparagraph 8 of the former Housing Act (Amended by Act No. 9405, Feb. 3, 2009); that is, roads within a housing complex are connected to roads of the same kind outside the relevant housing complex; as well as roads which connect a road outside the relevant housing complex to roads outside the relevant housing complex; and as roads installed within a public project zone by a project operator in charge of the functions of linking a road outside the relevant housing complex, etc. within the relevant housing complex, etc., and are also included therein (see Supreme Court Decision 2013Da29509, Jul. 23, 2015, etc.).

According to the records, the roads installed in the urban support facilities site by Gyeonggi-do, one of the co-project implementers of this case, are the roads connecting the entrance of some housing complexes (○○-○, △△△-△ Complex, and its neighboring complexes) in the area of the Seog school with the gold soil connected to the roads located outside the business district of this case, the central commercial district centering on the commercial district in the Donggggyeong school area, the roads linking the above gold soil, and other roads connecting the surrounding areas within the urban support facilities site. In light of the legal principles as seen earlier, the roads constructed by Gyeonggi-do in the urban support facilities site are all the basic facilities for living as roads responsible for the function of linking the entrance of the housing complex, etc. in the business district and the roads located outside the business district.

However, in a special supply contract for a housing site concluded between a person subject to relocation measures and a project operator, if the person subject to relocation measures pays the project operator the cost of the basic living facilities to cover the cost of the basic living facilities, the part that included the cost of the basic living facilities in the special supply contract in the sale price is null and void in violation of Article 78(4) of the former Land Compensation Act, which is a mandatory law. As such, the lower court should have deliberated and decided on the amount corresponding to the cost of the installation of the road, which is the basic living facilities, out of the cost of the cost of the construction of the urban support facilities, based on the calculation of the cost of the construction of the housing site, and determined the existence and scope of

Nevertheless, the lower court determined that roads installed in urban support facilities by Gyeonggi-do do not constitute basic living facilities for reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of roads, which are basic living facilities, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. Regarding ground of appeal No. 1

(1) The lower court recognized the fact that among the total project area of this case, the portion of existing road 696,720.7 square meters and the portion of water supply 214,512.68 square meters, including 214,512.68 square meters, were gratuitously reverted to the Defendant. The total area of public facilities related to the project area of this case is 6,036,837 square meters, and among which the total area of public facilities related to the project area of this case is 1,706,629 square meters, the lower court determined that: (a) the land equivalent to the area of basic facilities excluding the portion of gratuitously reverted to the public facilities should be excluded from the area of free reversion; (b) the total area of 30 square meters, 70,706,629, 629, 636, 3796, 97, 3696, 379, 467, 369, 37, 4767, m2.

(2) However, the lower court’s determination is difficult to accept for the following reasons.

Since the amount of unjust enrichment to be returned by the Defendant to the Plaintiffs is equivalent to the cost for basic living facilities included in the sale price of a resettled housing site, the cost for the site for basic living facilities, one of the elements thereof, shall be calculated by multiplying the total area of the entire land included in the total area of the land, which is the basis for calculating the sale price, by the total site cost. If there is any portion gratuitously reverted to the Defendant among the project sites, the free reverted portion shall be included in the calculation of the cost for the site for basic living facilities (see, e.g., Supreme Court Decision 2015Da7428, Apr. 15, 2016).

Nevertheless, for reasons indicated in its holding, the lower court calculated the site cost for basic living facilities except for the area equivalent to the ratio of the area of the basic living facilities installed to the total area of the site for free reversion. In so doing, it erred by misapprehending the legal doctrine on the calculation of the site cost for basic living facilities, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error

3. Conclusion

Therefore, the part of the judgment of the court below regarding the amount corresponding to the "amount of appeal" in the annexed sheet 2 of the amount of appeal shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] Statement of Amount of Appeal: omitted

Justices Kim Jae-hyung (Presiding Justice)