[1] In a case where a project operator supplies a housing site or a house to a person subject to relocation measures pursuant to the proviso of Article 40(2) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, as well as the case where a person subject to relocation measures, such as the Housing Site Development Promotion Act or the Housing Act supplies a housing site or a house to the person subject to relocation measures, whether the person subject to relocation measures should install a basic living facility under Article

[2] Whether the main text of Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and the main text of Article 78(4) of the same Act stipulating the duty to establish and implement relocation measures is a mandatory law (affirmative)

[3] The meaning of "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 Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[4] In a case where a person subject to the relocation measures, etc., and a project implementer, etc., included the cost of basic living facilities as stipulated in Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects in a special supply contract for a housing site or housing entered into with the person subject to the relocation measures, and thus the person subject to the relocation measures, has paid the cost to the project implementer, etc., whether the project implementer shall return the amount equivalent to the cost of the relocation measures to the person subject to the relocation measures by unjust enrichment (affirmative); and

[1] Article 78(1) and (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 40(2) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 20722 of Feb. 29, 2008); Article 105 of the Civil Act / [3] Article 78(4) and (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 40(2) of the former Enforcement Decree of the Housing Act (amended by Act No. 8665 of Oct. 17, 2007)

[1] [1] [2/3] [4] Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201 (Gong2011Ha, 1440)

Plaintiff 1 and five others (Law Firm Young-soo, Attorneys Lee E-soo, Counsel for the plaintiff-appellant)

Han Forestry Construction Co., Ltd. and one other (Law Firm Filiwon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na35243 decided January 21, 2009

The part of the judgment of the court below regarding Defendant Sung-nam is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the plaintiffs are dismissed. The costs of appeal regarding the dismissed appeal are assessed against the

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

1. Article 78(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”) provides that “A project operator shall 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 Article 40(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 2072 of Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”) provides that “The relocation measures shall be established and implemented in cases where those who wish to move among those subject to relocation measures are more than 10 houses, except in cases where there are inevitable reasons prescribed by the Ordinance of the Ministry of Construction and Transportation, and the cost of relocation and drainage facilities shall be included in the site or housing supply facilities of the relevant project operator pursuant to the Housing Site Development Promotion Act.”

Comprehensively taking account of the above provisions, the supply of housing sites or houses (hereinafter “special supply”) by the project implementer to the persons subject to the relocation measures under the proviso of Article 40(2) of the Enforcement Decree of the former Public Works Act, such as the Housing Site Development Promotion Act or the Housing Act, is a method of taking the relocation measures that the project implementer may choose on the basis of delegation under Article 78(1) of the former Public Works Act. Therefore, it is reasonable to view that the special supply of housing sites should be provided to the persons subject to the relocation measures by installing the basic living facilities under Article 78(4) of the former Public Works Act at the expense of the project implementer, as in the case of providing the relocation settlement site. In this case, the fact that the market price of housing sites or houses acquired by the persons subject to relocation measures

In addition, the purpose of the former Public Works Act is to promote the promotion of public welfare and the appropriate protection of property rights through the efficient implementation of public works by prescribing matters concerning compensation for losses incurred by the acquisition or use of land, etc. required for public works through consultation or expropriation. Measures for resettlement under the said Act is a system that is prepared to restore the previous living conditions to those subject to relocation measures who lose their base of livelihood by providing land, etc. necessary for the implementation of public works and ensure a living worthy of human dignity at the same time. As such, Article 78(1) of the former Public Works Act, which provides for the duty to establish and implement relocation measures, and Article 78(4) of the same Act, which provides for the contents of the measures for resettlement, is a mandatory law that can not be excluded from the application by agreement of the parties

Furthermore, the purpose of Article 78(4) of the former Public Works Act is to provide the person subject to relocation measures with a basis of living. Thus, the term "basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities" under the said provision means roads, water supply and drainage facilities, electric facilities, telecommunications facilities, gas facilities, or district heating facilities, which are installed by a project operator who implements a housing construction project or a housing site development project under the relevant statutes, such as Article 23 of the Housing Act

Therefore, if a person subject to relocation measures was to pay the project operator, etc. the cost of installing basic living facilities as stipulated in Article 78(4) of the former Public Works Act by including the cost of installing basic living facilities in the sale price under a special supply contract for a housing site or housing contract concluded between a person subject to relocation measures and a project operator or a supplier under his/her arrangement, the special supply contract violates Article 78(4) of the former Public Works Act, which is a mandatory law, and becomes null and void. If a project operator directly supplies a housing site or a house, the portion of the cost of installing basic living facilities included in the sale price in the special supply contract for a housing site or a house is exempted from the disbursement of the amount equivalent to the cost of installing basic living facilities to be borne by the project operator in accordance with the above provision. Ultimately, the project operator is obligated to return the amount to the person subject to relocation measures as unjust enrichment (see Supreme Court en banc Decision 2007Da63636, Jun. 23, 2011).

Meanwhile, a person who supplied a housing site or a house to a person subject to relocation measures through a referral of a project operator is not the project operator, and even if such supplier entered into a supply contract at a price that includes the amount equivalent to the cost of the basic living facilities with the person subject to relocation measures, this part of the supply contract cannot be deemed null and void due to the violation of Article 78(4) of the former Public Works Act or the supplier's unjust enrichment equivalent

2. Examining the reasoning of the judgment of the court below in light of the above legal principles, the court below is justified in maintaining the judgment of the court of first instance which dismissed the plaintiffs' claim against the defendant Hanlim Construction Co., Ltd. (hereinafter "Defendant Co., Ltd."), but it is difficult to accept the decision of the court of first instance which dismissed the plaintiffs' claim against the defendant Sungnam-si.

In other words, the defendant company is not the executor of the public works of this case, which is the subject of the duty to establish and implement relocation measures under Article 78 of the former Public Works Act, but merely a person who supplied a house to the plaintiffs who are the subjects of relocation measures upon request from the defendant Sung-nam City for a special supply of housing. The court below's rejection of the plaintiffs' claim against the defendant company in the same purport is just, and there is no error of law such as misunderstanding of legal principles as to the scope of application under Article 78 (4) of the former Public Works Act, lack of reason, and failure of reason

However, as an executor of the instant public works project, Defendant Sung-nam is obligated to install basic facilities by bearing the cost as a part of the relocation measures for the Plaintiffs, who are the objects of the relocation measures. Accordingly, if the Plaintiff and the Defendant Company concluded the instant sales contract at a price which includes the amount equivalent to the cost of the basic living facilities, and thereby, the Plaintiffs were exempted from the disbursement of the amount equivalent to the cost of the basic living facilities to be borne by the Plaintiffs pursuant to Article 78(4) of the former Public Works Act, due to their special supply of the housing, it should be deemed that the Plaintiffs, who are the subjects of the relocation measures, have suffered damages equivalent to the same amount.

Nevertheless, the court below rejected the plaintiffs' claim against the defendant Sung-nam city without further determination on the special supply of the apartment of this case, which was provided to the plaintiffs as part of the relocation measures due to the public works in this case. The court below erred by misapprehending the legal principles on the cost of the basic living facilities to be borne by the project operator in the special supply as part of the relocation measures, and the ground of appeal pointing this out is with merit.

3. Therefore, the part of the judgment of the court below regarding Defendant Sungnam-si 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 are dismissed. The costs of appeal regarding the dismissal of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Cha Han-sung (Presiding Justice)