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(영문) 서울고등법원 2015.01.30 2012나32838
채무부존재확인
Text

1. Revocation of the judgment of the first instance against the Plaintiff C, and rejection of the instant lawsuit by the Plaintiff C.

2. Plaintiffs N, P, and Q respectively.

Reasons

1. In the first instance court, Plaintiff N, P, and Q made a claim for return of unjust enrichment against the Defendant on the ground that they paid the sale price in excess of the legitimate sale price under each sales contract between the said Plaintiffs and the Defendant. The first instance court partly accepted the claim for confirmation of existence of each obligation of the said Plaintiffs, and dismissed each of the remaining claims and the claim for confirmation of existence of each obligation and the claim for return of unjust enrichment. It is clear in the record that only the said Plaintiffs appealed the claim for confirmation of existence of obligation and the claim for return of unjust enrichment without any assertion as to the claim for confirmation of existence of obligation, and that there is no extension of the purport of appeal until the closing of argument in the first instance trial.

Therefore, since only the claim for return of unjust enrichment among the above plaintiffs' claims is subject to the judgment of this court, it shall be judged accordingly.

2. We examine whether the Plaintiff C’s lawsuit is legitimate ex officio on the legitimacy of the Plaintiff C’s lawsuit.

Plaintiff

C As the cause of the claim in this case, the defendant calculated the sale price on the sales contract without deducting the basic cost of living facilities from the payment of housing sites to a person subject to relocation measures pursuant to Article 78 (4) of the 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"). The part of the sales contract in which the basic cost of living facilities is included in the sale price is invalid because it violates the above provision, which is a mandatory law, and the defendant's obligation to pay the sale price under the sales contract with the defendant in this case does not exist more than 323,896,03 won after deducting the sale price already paid from the legitimate sale price.

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