(영문) 대법원 2016.4.28.선고 2014다39701 판결

1. The part of the judgment of the court below against Plaintiff AO is reversed, and the judgment of the court of first instance on this part is revoked, and the lawsuit against Plaintiff AO is dismissed.

2. Of the judgment below, the part against the defendant against the plaintiff CN by the succeeding intervenor of the plaintiff BJ, AK, BT, BL, BM, Q and the plaintiff (Withdrawal) and the part against the plaintiff CK shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

3. The appeal by the plaintiff AS, AX, BR, and AY, and all appeals by the defendant against the plaintiff AO, CK, AS, AS, AX, BR, BJ, AK, BT, BL, BM, BZ, Q, and the plaintiff (Withdrawal) are dismissed.

4. The costs of appeal between the plaintiffs AS, AX, BR, AY and the defendant are assessed against the above plaintiffs. The costs of appeal between the plaintiffs and the defendant are assessed against the defendant except the plaintiff AO, CK, AS, AS, AS, BR, AY, BJ, AK, BT, BL, BM, Q, and the plaintiff (Withdrawal)'s succeeding intervenor CN. The costs of appeal between the plaintiff AO and the defendant are assessed against the plaintiff CB.

Reasons

1. Determination of the grounds of appeal ex officio is made prior to the judgment.

According to the records, it can be recognized that the plaintiff AO died on or around August 11, 2008, prior to the filing of the lawsuit in this case. Thus, this part of the lawsuit filed in the above plaintiff's name, which is the deceased, is unlawful.

Nevertheless, the lower court erred by misapprehending the legal doctrine on capacity of parties, thereby adversely affecting the conclusion of the lawsuit in this case, and thereby dismissing the above Plaintiff’s claim.

2. The grounds of appeal (the supplemental appellate brief was not timely filed by the defendant)

Each statement in the grounds of appeal is examined to the extent that it supplements the grounds of appeal.

A. Regarding the scope of those subject to relocation measures for the Defendant to bear the obligation to install basic living facilities

(1) According to Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007), Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter referred to as the "former Public Works Act"), Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 2072 of Feb. 29, 2008; hereinafter referred to as the "Enforcement Decree of the former Public Works Act"), the owner of a building who has been subject to relocation measures (the above Public Works Act was enforced from Jan. 1, 2003; Article 3 of the Addenda of the Act provides that the person subject to relocation measures, as a matter of principle, shall be excluded from the provisions of the former Act on Acquisition of and Compensation for Land, etc. for Public Works.).

Meanwhile, Article 21(2) of the former Urban Development Act provides that the Public Works Act shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project, except as otherwise provided for in the above Act. The former Public Works Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree. However, the main text of Article 78(4) provides that "the details of relocation measures include basic living facilities at a normal level (hereinafter referred to as "basic living facilities"), such as roads, water supply facilities, drainage facilities, and other public facilities, in a resettlement area (including a housing complex constructed by the implementation of relocation measures), and the expenses incurred therein shall be borne by the project operator."

(2) In a case where the relevant Act that requires the application of the Public Works Act to the procedures for the expropriation of land is scheduled for the public inspection of residents, etc. other than the public announcement of project approval, the “date of public announcement, etc. under the relevant Act and subordinate statutes for the public project,” which serves as the basis for the persons subject to the measures for relocation, may include not only the date of public announcement of project approval but also the date of public announcement of project approval (see, e.g., Supreme Court Decision 2007Du1340, Feb. 26, 2009). However, the standard for determining whether a person is subject to the measures for relocation as prescribed by the Act and subordinate statutes, must be individually specified in accordance with the relevant Act and subordinate statutes for each public project. Since the application of the Act and subordinate statutes for the establishment, etc. of measures for relocation, which are mandatory provisions, should be consistent, it is reasonable to interpret it as one of the basis for the measures for relocation of land under individual statutes. On the contrary, if

In addition to these circumstances, in full view of the procedures for the implementation of public works under the Urban Development Act and the policy needs to prevent speculative transactions following the implementation of such projects, it is reasonable to deem that the legal relocation measures base date falling under Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18738, Mar. 12, 2005) is the public inspection and announcement date of the designation of an urban development zone pursuant to the main sentence of Article 40(3)2 of the former Enforcement Decree of the Public Works Act on the basis of this,

Article 78(4) of the former Public Works Act, which requires a project operator to install basic living facilities and bear the expenses, shall be specifically applied to a person subject to measures for resettlement as prescribed by this Act, and shall not be deemed to have been applied to a person subject to measures for resettlement as well as a person subject to measures for resettlement (Supreme Court).

See Supreme Court Decision 2014Da14672 Decided July 23, 2015, etc.

B. As to the Defendant’s grounds of appeal

(1) As to ground of appeal No. 1

A) As to the Defendant’s assertion that part of the Plaintiffs constitutes grounds for excluding those subject to relocation measures as prescribed by Article 78(1) of the former Public Works Act and Article 40(3)1 and 2 of the former Enforcement Decree of the Public Works Act, the lower court determined that: (a) with respect to an unauthorized building constructed before January 24, 1989 pursuant to Article 6 of the Addenda of the former Enforcement Decree of the Public Works Act (hereinafter “Article 6 of the Addenda”), the Defendant acquired the Plaintiff’s obligation to take measures for resettlement before the date of acquisition of ownership from January 24, 1989; and (b) prior to the date of public announcement, the Plaintiff acquired the Plaintiff’s obligation to take measures for resettlement and the Plaintiff’s non-permission under Article 40(3)1 of the former Enforcement Decree of the Public Works Act before the date of public announcement; (c) before the date of public announcement, the Plaintiff acquired the Plaintiff’s obligation to take measures for resettlement and the Plaintiff’s non-permission under the former Urban Development Act; and (d)

B) Article 6 of the Addenda to the Enforcement Decree of the Public Works Act provides that "the owner of a building constructed without obtaining permission or filing a report as of January 24, 1989 without obtaining such permission or filing a report shall be included in the person subject to relocation measures, notwithstanding Article 40 (3) 1." In light of the language and details of the foregoing Addenda provisions and the background leading up to introduction, and the purport and structure of each subparagraph of Article 40 (3) of the Enforcement Decree of the former Public Works Act stipulating a person ineligible for relocation measures, where an unauthorized building already constructed at the time of January 24, 1989 is an unauthorized building, the above Addenda provisions purport to exclude the owner from the exception of subparagraph 1 of Article 40 (3) of the Enforcement Decree of the former Public Works Act, and it does not mean that not only the time of construction but also the time of acquisition of ownership or right to de facto disposal should be included in the scope of the person subject to relocation measures before January 24, 1989 (see, e.g., Supreme Court Decision 2014).

In the same purport, the court below is just in holding that even if an unauthorized building constructed before January 24, 1989 was acquired after January 24, 1989, it does not constitute a reason for excluding those subject to relocation measures under Article 40 (3) 1 of the former Enforcement Decree of the Public Works Act, and there is no error by misapprehending the legal principles under Article 6 of the Addenda of the Enforcement Decree.

C) However, it is difficult to accept the judgment of the court below that the above plaintiffs are subject to the relocation measures stipulated by the former Urban Development Act and the former Public Works Act, on the premise that they constitute the persons subject to the relocation measures.

According to the records, it can be known that the date on which the above E district was announced for public inspection of residents to designate it as an urban development zone was January 15, 2004. According to the above legal principles, whether it is a person subject to relocation measures under the Urban Development Act and the Public Works Act and subordinate statutes applicable to Article 78(4) of the former Act shall be determined as of the date of public inspection.

However, even according to the facts acknowledged by the court below, most of the above plaintiffs asserted that the defendant does not constitute a person subject to relocation measures under the law were made a move-in report as of January 15, 2004, which was the date of the above public inspection notice. However, the plaintiff CA was made a move-in report in the building only after January 15, 2004. Thus, the plaintiff CA was made a move-in report after January 15, 2004. The court below should further examine whether the plaintiff 2J, AK, BT, BL, BM, BZ, BZ, Q and Q were included in the scope of the persons subject to relocation measures under the law prescribed by Article 78 (4) of the former Public Works Act.

Nevertheless, the lower court determined that eight persons, including Plaintiff BJ, etc., fall under those subject to relocation measures to be subject to Article 78(4) of the former Public Works Act on the ground that Plaintiff BJ, AK, BT, BL, BM, Q, and the Plaintiff ACA withdrawn from each of the relevant districts had filed a relocation report prior to the date of public announcement of the compensation plan for each of

In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for the classification of persons subject to relocation measures prescribed by the former Urban Development Act and the former Public Works Act and the subject of application of Article 78(4) of the former Public Works Act, thereby failing

(2) Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant should calculate the cost of basic living facilities based on the area which deducts a notice of 252,89 meters of the road site which the defendant acquired without compensation from the State or a local government, and recognized the cost of basic living facilities related to the defendant's direct labor cost, sales cost, general management cost, and capital cost incurred by the defendant in relation to the business of this case as the cost of basic living facilities. In light of the relevant legal principles and records, the above judgment of the court below is just and it did not err by misapprehending

(3) As to the third ground for appeal

According to the reasoning of the judgment below, the court below rejected the defendant's assertion on the trust of lawsuit on the ground that there is no evidence to acknowledge that the transfer of the claim for return of unjust enrichment of this case between the plaintiff AK, AL, AM, N, Z, and the successors who acquired the status of the buyer from the plaintiff AK

In light of the records, the above judgment of the court below is just, and there were no errors by misapprehending the legal principles regarding the lawsuit trust or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(4) As to the fourth ground for appeal

The lower court determined that, on the ground that when a bona fide beneficiary was lost, the Defendant is obligated to return the purport of the claim to the Plaintiffs partially accepted the claim as the beneficiary of bad faith from the time of filing the lawsuit, and that the Defendant is obligated to return the claim with legal interest as to unjust enrichment from November 21, 201, the day on which the written application for modification of the purport of the claim indicating partial claim was delivered to the Defendant, while modifying the purport of the claim to seek restitution of unjust enrichment in the lawsuit

In light of the relevant legal principles and records, since the above plaintiffs cannot be deemed to be the beneficiary of bad faith from the time when the above plaintiffs increased the amount of partial claims reserved as above after amendment of the purport of the claim in this case, the above judgment of the court below is just, and there is no error of misapprehending the legal principles as to Article 749(2) of the Civil Act. The grounds of appeal by plaintiffs AS, AX, and B

(1) As to the grounds of appeal Nos. 1 and 2, it is deemed that Article 78(4) of the former Public Works Act, which is a mandatory provision on the burden of the cost of construction of basic facilities, does not apply to a person subject to mutually beneficial relocation measures beyond the scope of the person subject to the relocation measures as stipulated by the Act. In addition, even if a project operator is included in a person subject to the relocation measures beyond the scope of the person subject to the relocation measures as stipulated by the former Public Works Act, the relocation measures provided to a person who is not a person subject to the relocation measures as stipulated by the Act and subordinate statutes, are not a duty under the Act and subordinate statutes, and thus, it cannot be deemed that the project operator bears the duty to install basic living facilities as well as the person subject to the relocation measures (see, e.g., Supreme Court Decision 2012Da109811, Sept. 4,

In light of the above legal principles and records, the court below is just in holding that the plaintiff AS, AX, and BR, which is merely a beneficiary of the timely relocation measures, cannot be granted benefits as stipulated in Article 78 (4) of the former Public Works Act. In so doing, the court below did not err by misapprehending the legal principles on the scope of a beneficiary of the relocation measures, the selection of a beneficiary of the relocation measures, the validity of an administrative disposition, and the special supply. The Supreme Court precedents cited in the grounds of appeal in the grounds of appeal are different from the case of this case, and thus are not appropriate to be invoked

(2) As to the third ground for appeal

According to the reasoning of the judgment below, the court below determined that the evidence in its holding alone is insufficient to recognize that the above plaintiffs had resided in the relevant building prior to the date of the relocation measures stipulated by the Act or failed to reside due to unavoidable reasons, such as employment and school attendance.

In light of the records, the above judgment of the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

D. As to Plaintiff AY’s ground of appeal

According to the reasoning of the judgment below, the court below determined that the above plaintiff's claim for return of unjust enrichment was extinguished by succession of status under the contract for sale in lots to CL, since it is acknowledged that the plaintiff AY again agreed to receive the transfer of unjust enrichment claim and all rights to the claim claim from CL who acquired the status of the buyer of the contract for sale in this case, but CL did not have any evidence to acknowledge that the CL notified the transfer of assignment to the defendant, or that the above plaintiff was delegated with the power to

E. As to Plaintiff CK’s ground of appeal

(1) In light of the lack of evidence to support that Plaintiff CK had resided in the relevant building before the date of the public announcement of the compensation plan, the lower court determined that the said Plaintiff did not have an obligation to install the basic living facilities against the said Plaintiff or to return the amount equivalent to the cost of the basic living facilities as unjust enrichment on the premise that it constitutes “a person excluded from the person eligible for the relocation measures” under each subparagraph of Article 40(3) of the former Enforcement Decree of the Public Works

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① Plaintiff CK transferred from the above CO building around March 5, 1983 to around September 8, 2006, and entered in the resident registration copy. ② The sales contract was concluded between the above Plaintiff and the Defendant to purchase the CP apartment 212 and 803 (exclusive use area of 84.51m) from the Defendant. The sales contract was concluded between the above Plaintiff and the Defendant to purchase the CP apartment 212 and 803m (exclusive use area of 84.5m). The above Plaintiff paid the sales price in full, ③ the Defendant classified the above Plaintiff as a nonresident relocation measure entity, and concluded the sales

However, according to the above legal principles, the issue of whether the Plaintiff constitutes a person subject to measures for resettlement under the Urban Development Act and the Public Works Act, which are specifically applicable Article 78(4) of the former Public Works Act, shall be determined on the basis of the above public inspection announcement date, but such person shall be deemed the owner of the building who has been continuously residing until the date of conclusion of the agreement or the date of expropriation decision. According to the above circumstances, there is sufficient room to deem that the Plaintiff had resided in the above building since January 15, 2004, which was the date of the public inspection announcement. Thus, the court below should have deliberated on whether the Plaintiff owned the above building from the above public inspection announcement date to the date of conclusion of agreement or the date of expropriation

Nevertheless, the lower court determined that the said Plaintiff’s failure to recognize that the said Plaintiff had resided in the said building from March 29, 2005, which was the date of the public announcement of the relevant district compensation plan, constituted “a person excluded from the person eligible for relocation measures” under Article 40(3)2 of the Enforcement Decree of the former Public Works Act. In so doing, the lower court erred by misapprehending the legal doctrine on the criteria for classification of persons eligible for relocation measures under the former Urban Development Act and the former Public Works Act, Article 78(4) of the former Public Works Act, and Article 40(3)2 of the Enforcement Decree of the former Public Works Act

3. Therefore, the part of the judgment of the court below against Plaintiff AO is reversed, and this part of the case is sufficient for the Supreme Court to directly render a judgment. The judgment of the court of first instance as to this part is revoked, and the judgment of the court of first instance as to this part is dismissed, and the part against the Defendant against eight Plaintiffs, including Plaintiff BJ, etc., and the part against Plaintiff CK in the judgment below as to each of these parts is reversed, and remanded to the court below for further proceedings consistent with this Opinion. The appeal by Plaintiff AS, AX, BR, and Y and the appeal by the Defendant against the remaining Plaintiffs except Plaintiff AO, CK, AS, AS, AX, BR, AY, and BJ are all dismissed, and the costs of appeal by the Plaintiff and the Defendant are assessed against the losing party as per the Disposition upon the assent of all participating Justices.