2015Da209026 Undue gains

Korea Highway Corporation

Korea Land and Housing Corporation

Seoul High Court Decision 2014Na2015130 Decided January 22, 2015

Seoul High Court Decision 2014Na2015130-1 Decided February 5, 2015

October 12, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. Of the grounds of appeal by the plaintiff and the defendant, as to whether a binding consultation on the second proposal has been reached between the plaintiff and the defendant

A. On the grounds indicated in its reasoning, the lower court held that the Plaintiff and the Defendant agreed on the method of installing soundproof walls in relation to the construction of each apartment building of this case from July 2004 to around around the instant district, and the Defendant agreed on August 26, 2005 that the noise standards were applied in accordance with the housing construction standards, but as a supplementary plan (No. 2) was made to make the noise level less than 55dB at the night, the Defendant had a binding force on installing soundproof walls. However, contrary to the aforementioned agreement, the lower court determined that the Defendant installed the existing soundproof walls in this case at a level below 65dB (draft 1).

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

(1) According to the reasoning of the lower judgment and the record, the following facts and arguments are revealed.

(A) Facts

① Around May 2007, the Plaintiff, as the managing body of the Southern Sea Highway, performed a construction project for expanding the section from the JC to the JC to the JIC (hereinafter referred to as the “instant road”). On December 21, 201, the Plaintiff completed the construction project on December 21, 201. On December 29, 200, the Defendant was the implementor of the housing site development project with the approval of the implementation plan for the housing site development project on the housing site B site area on the South Sea Highway (hereinafter referred to as the “instant zone”), which newly built each of the instant apartment units within the instant zone, and the residents began to move into the said apartment from October 2005.

② Around July 6, 2004, the Defendant requested the Plaintiff to hold consultation with respect to the issue of installing soundproof walls on the instant road. On July 13, 2004, the Plaintiff requested the Defendant to review the planned traffic volume and target year in relation to the installation of soundproof walls by applying 20 years to the Defendant’s moving-in of the apartment.

③ On September 22, 2004, the Defendant sent reply to the Plaintiff on September 22, 2004, to install soundproof walls after installing soundproof walls, which is a common practice. The Defendant’s installation of the four-lanes in the previous four-lanes, and the Plaintiff’s installation of the four-lanes in the opposite sections, and the planned traffic volume applied the Plaintiff’s estimated traffic volume (20 years after moving into

④ On November 15, 2004, the Plaintiff installed in the instant district by applying the traffic volume corresponding to the planning target year of the eight-lane expansion project (2030), with respect to soundproof facilities, and the construction cost was paid by the Defendant to the Defendant for construction cost for soundproof facilities based on the traffic volume in consideration of the 20-year period after moving into the four-lanes of an expressway, and the cost for construction corresponding to the increase in soundproof facilities due to the eight-lane expansion was borne by the Plaintiff, and then the Defendant consulted on the method of performing construction simultaneously.

⑤ On July 19, 2005, the Defendant applied three noise standards under the Framework Act on Environmental Policy to the Plaintiff in relation to the installation of soundproof walls, i.e., the first proposal to apply noise standards under the housing construction standards (to less than 65dB at night, to less than 5dB at night, to 5.0 to 8.0m high of soundproof walls, to 4.2 billion won of estimated construction cost), and the second proposal to supplement noise standards under the housing construction standards (to below 65dB at night and below 5dB at night, to 8.5 to 12.0m high of soundproof walls, to 6.42 billion won of estimated construction cost, to 3 billion won of estimated construction cost, to install noise standards under the Framework Act on Environmental Policy (to below 65dB at night and below 55dB at night, to meet construction cost of multi-family housing, to 8.5 to 25m25m high of soundproof walls, and to present noise standards under the Framework Act on Environmental Policy to the Plaintiff’s construction cost.

(6) On July 25, 2005, the Plaintiff responded to the Defendant that the Defendant’s request for consultation would not be accepted by being completely contrary to the terms and conditions that the Defendant had already consulted on September 2004, and that the Plaintiff’s request was implemented in accordance with the terms and conditions of the Council as of November 15, 2004 and carried out detailed consultation accordingly.

① On August 29, 2005, the Defendant’s report on the contents of the road works in the district and the consultation. The Plaintiff’s practitioners consulted on the installation of soundproof walls on August 26, 2005 by K and L and M and N belonging to the Defendant. At the time, there are many problems such as excessive installation cost, view right and landscape damage when installing soundproof walls under paragraph 3, and if the Defendant’s practitioners want to install soundproof walls under paragraph 3, they will share the cost as the official document dated July 19, 2005, and the Defendant would want to install soundproof walls under paragraph 2. The Plaintiff’s practitioners agreed that there are many problems in the case of installing soundproof walls under paragraph 3, and that it is difficult for the Plaintiff’s practitioners to consult on the cost of construction as currently, and that there is no long date to move into, the Defendant’s report on the installation of soundproof walls to the effect that each civil petition by the Defendant’s housing construction standards should be made within 205 years.

④ On November 25, 2005, the Plaintiff consistently demanded the implementation of the matters already agreed upon to the Defendant, but there has been no definite answer as to whether the Defendant has performed such matters, and the Defendant is carrying out the installation of soundproofing Walls at will. In addition, the Plaintiff notified the Defendant of the plan to build soundproofing walls and the schedule of the plan to build soundproofing walls currently being promoted and requested to change its position when it differs from the initial agreed

9) On January 4, 2006, the Defendant installed soundproof walls in accordance with the Defendant’s official document as of July 19, 2005, and responded to the Plaintiff’s submission by attaching the schedule for installation of soundproof walls and the materials on the height of installation of soundproof walls. Meanwhile, the Plaintiff’s submission by the evidence No. 13 as of June 2006, indicated that the Defendant’s installation of soundproof walls in the “B Housing Site Area Soundproof plan” as of January 4, 2006, and indicated that the Defendant’s installation condition of soundproof walls in the housing construction machine was 65dB, night less than 5dB, and multi-family housing at the satisfaction of five floors.

4,426,287,787 won and 1,390 meters in length and 8.1 to 12 meters in height (hereinafter referred to as the “existing soundproofing walls of this case”) were installed within the district of this case by the Defendant, which brought about KRW 4,426,287,787.

1) On June 1, 2006, the Plaintiff’s soundproof walls installed by the Defendant to the Defendant are equivalent to the noise level satisfying only the five floors of apartment houses in accordance with the regulations on the housing construction standards, etc. and the noise measurement standards for apartment houses. Accordingly, the Plaintiff’s noise complaint is likely to occur among apartment occupants. Therefore, the soundproof walls built by the Defendant should be modified based on the entire satisfaction level of apartment houses in accordance with the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc., which are matters agreed with the Plaintiff, and the Framework

(12) On the other hand, after completing the construction of expanding the instant road into eight lanes on December 201, the Plaintiff removed the existing soundproof walls installed by the Defendant and newly installed soundproof walls at KRW 7,753,745,906 in length on the roadside of the instant road, taking into account KRW 1,520 in length, and height 9.5 to 15.5 meters in height. (b) Contents of the assertion

① The Plaintiff asserts that, upon consultation between the Plaintiff and the Defendant on the issue of installing soundproof walls, the soundproof walls installed within the instant zone by applying the Plaintiff’s estimated traffic volume for 20 years after the Defendant moved into each of the instant apartment buildings, and thereafter, when the instant road is expanded to eight lanes, the soundproof walls for the four-lane expanded are to be installed by the Plaintiff, and the Defendant’s duty to install soundproof walls refers to installing soundproof walls that meet the noise standards under the Framework Act on Environmental Policy, and that there was no consent or approval of the Plaintiff with respect to the installation of the existing soundproof walls.

② The Defendant asserted that, although the Defendant requested consultations with the Plaintiff to install soundproof walls on the instant road surface, there was no agreement between the Plaintiff and the Defendant with respect to noise standards, such as height of soundproof walls, which must meet the soundproof walls, etc., and eventually, the Defendant had installed the existing soundproof walls meeting the noise standards in accordance with the Housing Construction Standards with the Plaintiff’s consent, and the Defendant fulfilled all the obligation to install soundproof walls. Meanwhile, the Defendant did not agree to install soundproof walls in the instant appellate brief on August 26, 2005, as recognized by the lower court at the time of consultation between the Plaintiff and the Defendant’s working-level, and the Defendant’s report on the contents of consultation with the Plaintiff’s working-level on August 29, 2005 is merely a statement of internal conclusions while reporting the contents of consultation with the Plaintiff’s working-level, and further, it cannot be readily concluded that consultation with the Plaintiff and the Defendant directly affect the Plaintiff and the Defendant.

(2) In full view of the following circumstances revealed in the above facts and the contents of the assertion, it is difficult to recognize that the Plaintiff and the Defendant had legally binding consultation on August 26, 2005 with respect to the installation of soundproof walls by the second proposal.

① According to the documents sent and received by the Plaintiff and the Defendant before August 26, 2005, the fact that the Defendant exchanged each other’s opinion with respect to the issue of installing soundproof walls on the instant road, and that he/she was conducting consultation. However, it is difficult to deem that there was a specific agreement between the Plaintiff and the Defendant with respect to noise standards, such as the height of soundproof walls, etc., which should meet the standards for soundproof walls or soundproof walls.

② The fact that the Plaintiff and the Defendant’s practitioners conducted consultation on the installation of soundproof walls on August 26, 2005 is recognized. However, regarding the measures for which the Defendant requested consultation to the Plaintiff on July 19, 2005, the Plaintiff sent reply that it cannot be accepted on July 25, 2005, and that the consultation prior to August 26, 2005, and the determination of noise standards applicable to the installation of soundproof walls is a critical matter that may determine construction cost of KRW 00 million. In light of the fact that the contents agreed between the Plaintiff and the Defendant’s practitioners at the time are recognized as binding consultation between the Plaintiff and the Defendant, the authority to such consultation on behalf of the Plaintiff and the Defendant ought to be delegated. However, there are no particular circumstances to deem that the Plaintiff and the Defendant’s practitioners were delegated the above authority.

③ In addition, the Plaintiff and the Defendant’s practitioners did not have prepared any document to confirm, or grant binding force on, the matters that had been specifically agreed upon at the time of consultation on August 26, 2005, and the Defendant’s report on the contents of consultation with the “B district road construction” on August 29, 2005 appears to be merely an internal document prepared by the Defendant’s practitioners in order to report the contents discussed at the time of consultation to the upper part. In addition, considering these circumstances, it is difficult to deem that the Plaintiff and the Defendant’s practitioners and the said practitioners were delegated the authority to hold binding consultation. In addition, it is difficult to conclude that the Plaintiff and the Defendant’s practitioners agreed on the noise standards that meet the standards such as the height of soundproof walls or soundproof walls on August 26, 2005.

④ In fact, even after August 26, 2005, the Plaintiff raised an objection against the Defendant’s unilateral installation of soundproof walls, and requested that the Defendant install the soundproof walls to satisfy the noise standards under the Framework Act on Environmental Policy, which is a matter of consultation with the Plaintiff, even after the Defendant installed the soundproof walls, and continuously raised an objection against the Defendant’s installation of the soundproof walls.

(6) On August 26, 2005, the argument that the plaintiff and the defendant reached a binding agreement between the plaintiff and the defendant on the establishment of soundproof walls by the second proposal, as the court below acknowledged on August 26, 2005.

(3) Nevertheless, the lower court recognized that the Plaintiff and the Defendant consulted on August 26, 2005 with the binding force of installing soundproof walls, and determined the existence and scope of the Defendant’s obligation to return unjust enrichment on the premise thereof. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. Conclusion

Therefore, without examining the remaining grounds of appeal by the Plaintiff and the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Jae-chul

Justices Go Young-young

Chief Justice Cho Jae-hee

Justices Kim Jong-il