[1] Whether the project implementer's duty to pay liquidation money under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the duty to transfer ownership without registration of restriction on rights of landowners are concurrently performed (affirmative)

[2] The time when the project implementer is obligated to pay liquidation money pursuant to Article 47 subparag. 1 and subparag. 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (=the day after the expiration of the period of application for sale) and the time of evaluation of the value of liquidation

[3] In a lawsuit seeking the payment of liquidation money under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether the court shall necessarily calculate the liquidation amount by the method stipulated in Article 48 of the Enforcement Decree of the same Act

[4] Whether a member of a reconstruction and improvement project association is obligated to return retroactively the benefits obtained from the member's status when he/she loses his/her status (negative in principle)

[1] Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 536 of the Civil Act / [2] Article 46, Article 47 subparagraph 1 and 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [3] Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas

[1] Supreme Court Decision 2008Da37780 Decided October 9, 2008 (Gong2008Ha, 1544)

Plaintiff 1 and two others

Plaintiff 4 and one other

Plaintiff 6 et al.

Defendant Reconstruction and Maintenance Project Association (Law Firm Khun, Attorneys Park Im-eat et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na88353, 88360 decided April 8, 2009

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. As to the grounds of appeal by Plaintiffs 1, 2, 3, and 6

In the event that a project implementer fails to apply for a parcelling-out or withdraws an application for a parcelling-out under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the owner of land, etc. under the principle of fairness bears the obligation to transfer the ownership of land, etc. to the project implementer in a state where there is no restriction on rights, and in principle, the obligation to transfer ownership without registration for restriction on rights and the obligation to pay liquidation money to the project implementer is in the simultaneous performance relationship (see Supreme Court Decision 2008Da37780, Oct.

The lower court determined as follows: (a) comprehensively taking account of the adopted evidence, found the following facts: (b) the obligation to relocate expenses of the Plaintiffs regarding the portion of each of the instant real estate as the secured obligation; (c) the registration of creation of a new mortgage on May 28, 2008 was completed; (d) the Defendant subrogated for each of the Plaintiffs’ moving expenses to the National Bank Co., Ltd. and cancelled the registration of establishment of a new mortgage on May 28, 2008; and (e) the Defendant’s obligation to cancel the registration of establishment of a new mortgage and the obligation to pay the liquidation money of the Plaintiffs on the ground that the obligation to pay the liquidation money does not result from delay until May 28, 2008 when the registration of establishment of a new mortgage was cancelled.

In light of the above legal principles and the records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the initial date of payment for delay of liquidation money as alleged in the

2. As to the grounds of appeal by Plaintiffs 7, 8, and 9

A. As to the evaluation base point for the computation of settlement money

Article 47 (1) and (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be liquidated in cash for land, buildings, or other rights within 150 days from the "date falling under the application for parcelling-out" in cases where owners of land, etc. fail to apply for parcelling-out or withdraw the application for parcelling-out pursuant to the procedures prescribed by Presidential Decree. Here, when an obligation to pay liquidation money arises for the owners of land, etc. who failed to apply for parcelling-out or has withdrawn the application for parcelling-out before the expiration of the period for application for parcelling-out, it shall be deemed that the "date after the expiration of the period for parcelling-out application" as prescribed by the project implementer under Article 46 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (see Supreme Court Decision 2008Da37780, Oct. 9, 208). Therefore, it is reasonable to deem

According to the reasoning of the judgment below, the court below calculated liquidation money according to the plaintiffs' share value among the real estate of this case evaluated as of October 22, 2006 as the base point of time. Although the court below calculated liquidation money according to the plaintiffs' share value assessed as of October 22, 2006 as the base point of time, which is not April 9, 2006, but as of October 22, 2006, which is the time when the obligation to pay liquidation money arises, the court below calculated liquidation money according to the price of the plaintiffs' share value. However, on October 22, 2006, which is considered as the base point of time of appraisal, there is no circumstance that the price fluctuation occurred between the base point of time and April 9, 2006, which is the date when the obligation to pay liquidation money was generated. Thus, the court below was just in calculating liquidation money according to the price assessed as of October 22, 2006.

B. As to the method of calculating the liquidation amount

In Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, a project implementer shall liquidate land, buildings or other rights in cash within 150 days from the date of application for parcelling-out or withdrawal of application for parcelling-out according to procedures prescribed by Presidential Decree. Article 48 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that "If a project implementer liquidates land, buildings or other rights of the owners of land, etc. under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, in cash, the liquidation amount may be calculated through consultation between the project implementer and the owners of land, etc., and in such cases, consultation may be made on the basis of the arithmetic mean of

However, since the above provision is only about the method of assessment in a case where a project implementer and a landowner agree on the liquidation amount, in a lawsuit seeking the payment of liquidation amount, the court is sufficient to assess the liquidation amount by appropriate means, and it does not necessarily require to calculate the liquidation amount by such method as stipulated in Article 48 of the Enforcement Decree of the above Act.

According to the reasoning of the judgment below, the court below revealed that the liquidation amount of this case was calculated based on the market price appraisal result of an appraiser selected by the court of first instance. In light of the above legal principles and records, such measures by the court below are just, and there is no error of law such as misunderstanding of legal principles as to methods of calculating liquidation

C. As to the assertion that there is error in the result of performance satisfaction

The lower court determined that, with the Defendant’s deposit for repayment on September 3, 2008, the liquidation amount of KRW 15,217,104 against Plaintiffs 7, 8, and 9 and its delay damages would remain if the Defendant would be paid for the liquidation amount of Plaintiffs 7, 8, and 9, the liquidation amount of KRW 15,054,330 against Plaintiff 8, and KRW 18,943,098 against Plaintiff 9 would remain.

However, according to the calculation method stated in the reasoning of the judgment below, the liquidation money after appropriation of performance is calculated accurately, with respect to the plaintiff 7, 16,218,382 won (140,564,145 won - (124,846,402 won - 50,639), with respect to the plaintiff 8, 15,893,018 won [117,739,084 - - (102,265,410 - 419,344 won)], with respect to the plaintiff 9, 21,527,506 won [362,81,230 won], and with respect to the plaintiff 9, there are errors in the calculation method, as otherwise alleged in the ground of appeal.

However, since such an error in the above calculation constitutes a clear calculation of error in the judgment, it is nothing more than a ground for correction of the judgment and it is not a ground for reversal of the judgment of the court below (see, e.g., Supreme Court Decisions 2007Da30317, Jul. 26, 2007; 96Da40912, Nov. 29, 1996). Therefore, the argument that this point is considered as the ground for appeal cannot be accepted.

3. As to the Defendant’s ground of appeal

A. As to the assertion that there is a misapprehension of the legal principle on cash settlement

The legal relations between a reconstruction improvement project cooperative and its members established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be governed by the relevant Acts and subordinate statutes or the articles of association, resolution of a general meeting of partners or agreement between a cooperative and its members, unless otherwise stipulated by the relevant regulations, resolution or agreement. Thus, even if a member loses his/her status as a cooperative member, the member shall not be obligated

According to the reasoning of the judgment below and the records, the defendant concluded a rebuilding apartment construction contract with the non-party 1 corporation and the non-party 2 corporation, and agreed to bear the interest on moving expenses of its members, including the plaintiffs, while signing a rebuilding apartment construction contract with the non-party 1 corporation and the non-party 2 corporation. The plaintiffs provided real estate owned and relocated for the defendant's implementation of the project. The non-party 1 corporation and the non-party 2 corporation paid the interest on moving expenses of their members, including the plaintiffs, according to the agreement with the defendant to bear the interest on moving expenses prescribed in the construction contract with the defendant. The defendant did not apply for parcelling-out by April 8, 2006, which is the expiration date of the application period for parcelling-out and decided to dismiss the plaintiffs by holding an extraordinary general meeting on October 2

Therefore, the plaintiffs, as the members of the defendant's association, provide the defendant with real estate owned by the defendant and move, while acquiring profits equivalent to the interest on the moving expenses provided by the Si Corporation as the members of the association in accordance with the agreement with the defendant, and as long as there is no provision, resolution, agreement, etc. that if the plaintiffs lose their membership status, they shall return the interest on the moving expenses paid to the plaintiffs retroactively if they lose their membership status, it cannot be said that the plaintiffs are liable to return the profits equivalent to the interest on the moving expenses already acquired as a matter of course to the defendant as a matter of course, because they lost their membership status.

In addition, in light of the fact that the plaintiffs fulfilled their obligations by providing the real estate owned by them and relocating them to implement the projects of the defendant, while they cannot gain profits from the business of the association by losing their membership status, it cannot be said that the plaintiffs violated the principle of equity by holding the profits equivalent to the interest on the moving allowances loans that have been acquired as a member's status as it is, or that the remaining members have transferred the losses equivalent to the interest on the loans to the members.

Meanwhile, according to the records, the method of implementing a construction contract between the defendant and the contractor is the final shares of 1:1, and the defendant and the cooperative members are obligated to pay additional charges for the area exceeding the shares of the union members among the apartment area and for the loans borrowed from the contractor for the promotion of the project, and there is no obligation to pay other expenses to the contractor. The contractor knows that the apartment building is constructed on the land provided by the partnership and the land and buildings of a certain share are sold to the defendant's union members and the remaining household sales and the charges for the excess of the union members are appropriated for the construction cost and the project expense of the whole project cost. Thus, the losses incurred by the moving expenses loan interest paid by the non-party 2 corporation, the contractor after the plaintiffs lost its membership status, shall be returned to the expenses of the non-party 2 corporation, and the defendant or its members shall not return to the defendant or its members. Thus, the defendant cannot seek a return of the amount equivalent

The court below rejected the defendant's assertion that as long as the defendant did not acquire the interest claim, such as acquiring the claim from the contractor who is the creditor on the interest on the moving expenses, the amount equivalent to the interest on the moving expenses loan should be offset against the settlement money against the plaintiffs on the ground that the defendant did not have the right to claim the payment of the interest on the moving expenses. Although the reason was partially different, the decision of the court below is justifiable in rejecting the defendant's objection to the above offset. Thus, the court below did not err in the misapprehension of legal principles as

B. As to the assertion that there was an error in incomplete hearing

The gist of this part of the grounds of appeal is that the court below’s failure to assert and prove the claim is unlawful, even though the defendant alleged that he/she could take over his/her claim at any time, if it conforms to the legal principles that he/she would take over a claim for interest on moving expenses from the contractor at the date of pleading of the court below.

However, according to the records, there is no evidence to support the defendant's assertion as above, and even if based on the argument itself, the defendant's assertion that he had taken over the interest on the moving expenses from the contractor does not definitely prove that he had taken over the interest on the moving expenses from the contractor. Thus, the court below did not examine the argument on the transfer of claims, and there is no

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)