[1] The method of calculating the construction cost for the installation of basic living facilities under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works in the case where the construction cost for road construction and packing, and the construction cost for waterworks and sewerage are included in the total construction cost for the public works

[2] In a case where a development project operator included the amount equivalent to the above charges in the sales contract concluded with the person subject to relocation measures as a result of calculating the charges for metropolitan transportation facilities in the process of building a housing site and constructing a housing site, whether the development project operator's unjust enrichment of the sales price equivalent to the charges or the act of transferring the sales price to the sale price constitutes tort (negative in principle)

[1] Roads falling under arterial facilities under the Housing Act and waterworks and sewerage facilities fall under the basic living facilities under 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). Thus, the cost of installing roads, packing construction, and waterworks and sewerage construction falls under the construction cost for the installation of basic living facilities. Of the total civil construction cost, the remainder of the construction cost falls under the construction cost for the installation of basic living facilities only within the scope of the ratio of the area of the basic living facilities installed to the total project area.

[2] Article 11-2(1)3 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6939, Jul. 25, 2003) provides that no charges for intercity transport facilities shall be imposed on the construction of housing sites and the construction of housing in accordance with the implementation of relocation measures under Article 8 of the Act on Special Cases concerning the Acquisition of Land and Compensation for Loss. However, this provision provides that the Mayor/Do Governor, who is the authority imposing charges for intercity transport facilities, shall not impose the charges for intercity transport facilities on the construction of housing sites and the construction of housing in accordance with the implementation of relocation measures, to reduce the burden of payment of the operator of the development project by preventing the imposition of the charges for intercity transport facilities. In cases where the operator of the development project actually paid the charges for intercity transport facilities in the process of the construction of housing sites and the construction of housing, even if the purchaser includes the charges for relocation measures, it is difficult to view the charges actually paid by the development project operator as a legal provision that excludes the charges for multicity facilities from the sale charges.

[1] 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); Article 23 of the Housing Act / [2] Article 11-2(1)3 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6939 of Jul. 25, 2003); Articles 741 and 750 of the Civil Act

[2] Supreme Court Decision 2012Da203799 Decided September 12, 2013 (Gong2013Ha, 1771)

The list of plaintiffs and successors to the plaintiff is as shown in the attached Table (Attorneys Kim Jong- full, et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na28054 decided February 9, 2012

The part of the lower judgment against the Plaintiffs and the Intervenor succeeding to the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the Plaintiffs and the Intervenor succeeding to the Plaintiff and the Defendant’s appeal are all dismissed.

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 regarding the civil construction cost of the Plaintiffs and the Intervenor succeeding to the Plaintiff (hereinafter “Plaintiffs”)

A. According to Article 78 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 Public Works Act”), a project operator shall either establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for persons who are deprived of their base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter “persons subject to relocation measures”), and include basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities in the resettlement area, and the cost of relocation measures shall be borne by the project operator (the main sentence of paragraph (4)). In light of the purport of Article 78(4) of the former Public Works Act, “basic living facilities in accordance with the relevant local conditions, such as roads, water supply facilities, and drainage facilities,” as prescribed in said Act, “basic residential facilities in accordance with the relevant local conditions, such as roads, water supply facilities, and drainage facilities, etc.” (see Supreme Court en banc Decision 201360Do369.).

B. According to the reasoning of the lower judgment and the record, the total project area of the instant housing site development project is 219,457 square meters; among them, the construction area of a road which is a basic living facility under the Housing Act is 59,907 square meters, and the total civil construction cost spent in the instant housing site development project is KRW 15,201,194,00 in total, and the fact that such construction of a road and packing construction cost and waterworks and sewerage construction cost are included therein.

Since roads and waterworks and sewerage facilities falling under arterial facilities under the Housing Act fall under the basic living facilities stipulated in Article 78(4) of the former Public Works Act, the total amount of the cost of construction falls under the cost of construction for the installation of basic living facilities, and the cost of construction for the construction for the construction of basic living facilities, i.e., the ratio of the cost of construction for the installation of basic living facilities, i.e. the cost of construction for the installation of basic living facilities to the extent of the ratio of the area of the construction of basic living facilities to the total project area.

Nevertheless, the lower court, without examining the detailed details of the total civil construction cost, recognized only the amount equivalent to the ratio of 219,457 square meters of the total project area to the total project area of 15,201,194,000 square meters as the construction cost for the installation of basic living facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the installation cost of basic living facilities and the calculation method under the former Public Works Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to the grounds of appeal on the plaintiffs' charges for metropolitan transportation facilities

A. As seen earlier, the term “basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities” under Article 78(4) of the former Public Works Act refers to key facilities, such as roads, water supply and drainage facilities, electric facilities, telecommunications facilities, gas facilities, and district heating facilities, which are to be installed by a project proprietor who implements a housing construction project or a housing site development project under the relevant Acts and subordinate statutes, such as Article 23 of the Housing Act. Meanwhile, according to Article 2 Subparag. 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009), “arterial facilities” refers to facilities that connect the key facilities within a housing complex (where two or more housing complexes are simultaneously developed, referring to each housing complex), such as roads, water supply and drainage facilities, electric facilities, gas facilities, and district heating

According to the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6939, Jul. 25, 2003; hereinafter “former Intercity Transport Act”), a person who implements a housing site development project under the Housing Site Development Promotion Act in a metropolitan area prescribed by Presidential Decree among metropolitan areas shall pay metropolitan transport facility charges to construct and improve intercity transport facilities (Article 11 subparagraph 1); and a person who charges charges for metropolitan transport facilities in a metropolitan area shall be imposed and collected by the Mayor/Do Governor in the area where the project is implemented (former part of Article 11-4(1)). The term “metropolitan area” in this context means an area prescribed by Presidential Decree among the areas located in the traffic life zones in the Special Metropolitan City, Metropolitan Cities, and the same city under Article 2(1)1 of the Local Autonomy Act (Article 2 subparag. 1); the term “metropolitan transport facilities” means transport facilities for dealing with a wide traffic demand in the metropolitan area that meet the requirements prescribed by Presidential Decree, such as roads covering at least two Special Metropolitan Cities, Metropolitan Cities, and Dos or railroads operated over at least two cities.

In light of the aforementioned legal principles and the relevant provisions of the former Metropolitan Transport Act, the charges for metropolitan transport facilities only imposed in metropolitan areas are required for the construction and improvement of metropolitan transport facilities in metropolitan areas, and the expenses incurred in raising the value of the housing site and housing in metropolitan areas are imposed on the project operator by the Mayor/Do Governor. Accordingly, those subject to relocation measures who are supplied with the housing site for migrants in metropolitan areas also bring profits from the construction and improvement of metropolitan transport facilities, the charges for metropolitan transport facilities cannot be deemed to constitute the installation costs of basic living facilities to be provided to those subject to relocation measures as a basis

B. Article 11-2(1)3 of the former Metropolitan Transport Act provides that no metropolitan transport facility charge shall be imposed on a housing site and a housing construction project in accordance with the implementation of relocation measures under Article 8 of the Act on Special Cases concerning the Acquisition of Land for Public Use and the Compensation Therefor. However, this provision provides that the Mayor/Do Governor, who is the authority imposing charges for metropolitan transport facility, shall not impose metropolitan transport facility charges on the land for the creation of a housing site and the construction of a housing in accordance with the implementation of relocation measures, to reduce the burden of a development project operator’s liability to pay the charges. In a case where the development project operator actually paid the charges for metropolitan transport facilities in the course of the creation of a housing site and the construction of a housing, even if the housing site includes a person subject to relocation measures, it does not mean that the charges for metropolitan transport facility

Although a development project operator includes the amount equivalent to the metropolitan transport facility charges in the sale price entered into between the person subject to relocation measures according to the determination of the actual cost of the metropolitan transport facility charges and the sale price, barring special circumstances, such as the law or agreement to exclude the sale price from the sale price, the part equivalent to the metropolitan transport facility charges cannot be deemed null and void. Therefore, it is difficult to view that the development project operator gains profits from the relationship with the person subject to relocation measures without any legal ground in the sale price equivalent to the metropolitan transport facility charges. The development project operator cannot be deemed as tort in the sale price.

C. The court below rejected all of the plaintiffs' assertion that the defendant's inclusion of the charges for metropolitan transport facilities (the "wide transport facility charges" in the judgment of the court below) corresponding to the cost of the basic living facilities in the sale price of the plaintiffs constitutes invalid or tort in violation of Article 78 (4) of the former Public Works Act or Article 11-2 (1) 3 of the former Intercity Transport Act, and thus, the defendant is obligated to return unjust enrichment or compensate the damage to the plaintiffs. As to the plaintiffs' assertion that the charges for metropolitan transport facilities imposed on the defendant in relation to the housing site development project of this case are not reflected in the final cost of housing site development, and there is insufficient evidence to support that the charges for metropolitan transport facilities are not reflected in the final cost of housing site development, and that the charges for metropolitan transport facilities are transferred to the plaintiffs, and it is difficult to see that the defendant was immediately constituted tort.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, there may be room to view that the part of the judgment below that determined that the plaintiffs' sale price included the metropolitan transport facility charges and the burden was insufficient to find the plaintiffs to have been transferred to the plaintiffs. However, even if the purchase price paid by the plaintiffs includes the nominal amount of the metropolitan transport facility charges, the judgment of the court below that the defendant does not bear the obligation to return unjust enrichment or to compensate for damages on the ground thereof is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there is no error

3. As to the Defendant’s ground of appeal

The Defendant’s assertion in the grounds of appeal is a new argument that leads to the final appeal and cannot be a legitimate ground of appeal. Furthermore, even ex officio, there is no error in the misapprehension of legal principles as to the scope of basic living facilities, such as the Supreme Court’s case, violation of the burden of proof, mistake of facts in violation of the rules of evidence, and incomplete deliberation, etc., as alleged in the grounds of appeal.

4. Conclusion

Therefore, the part of the judgment below against the plaintiffs regarding the civil construction cost is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiffs and the defendant's appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs and Intervenors to the Plaintiff: omitted

Justices Kim So-young (Presiding Justice)