2019Da300484 Undue gains

Korea Land and Housing Corporation

Law Firm Woo (Law Firm Woo, Counsel for defendant-appellant)

[Defendant-Appellee] Plaintiff 1 and 2 others

Defendant

Law Firm Cheong-soo et al., Counsel for the defendant-appellant

Suwon District Court Decision 2019Na68275 Decided December 5, 2019

July 29, 2021

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Whether the implementer of a housing redevelopment improvement project may file a claim for return of unjust enrichment from the commencement date of expropriation against a person subject to cash liquidation who uses or gains profit from the land or buildings within the project zone;

A. Article 49(6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") shall not use or profit from the previous land or buildings until the date of the public announcement of relocation under Article 54: Provided, That the same shall not apply to the case of a right holder whose project operator's consent or compensation under Article 40 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter referred to as the "Land Compensation Act") has not been completed. This provision is a special provision for Article 43 of the Land Compensation Act, and in order that a project operator intends to transfer the previous land or buildings to a person subject to settlement in cash, it is insufficient to authorization and public announcement.

The main sentence of Article 40(1) of the former Act shall apply mutatis mutandis to expropriation or use for the implementation of a rearrangement project, except as otherwise provided for in the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents. Article 78(1) of the Land Compensation Act provides that "A project operator shall establish and implement relocation measures or pay resettlement funds, as prescribed by Presidential Decree, to a person who is deprived of his/her base of livelihood as a result of the implementation of a public project." Article 41 of the Enforcement Decree of the Land Compensation Act provides that "where a project operator fails to establish and implement relocation measures, or where a person subject to relocation measures intends to move to another area than a resettlement area, he/she shall pay resettlement funds as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport." In addition, Article 78(5) of the Land Compensation Act provides that a resident of a residential building shall calculate and compensate expenses necessary for the relocation of movable property, such as cost and system necessary for the relocation of his/her residence, and the legislative intent and purpose of the amendment thereof, and Article 78(20(3) of the former Act.

B. To complete compensation for loss under the proviso to Article 49(6) of the former Act, compensation for land or buildings, etc. under the Land Compensation Act shall be paid not only for the payment or deposit of compensation for relocation expenses, etc., but also for the payment procedure for relocation expenses, etc. according to the consultation or the decision of expropriation. If the payment procedure for relocation expenses, etc. is not carried out according to the consultation or the decision procedure, a person who becomes a person subject to cash liquidation may use the previous land or buildings (see Supreme Court Decision 2019Da207813, supra).

It is not allowed for an implementer of a housing redevelopment project who is obligated to pay relocation expenses, etc. as above to file a claim for return of unjust enrichment against a person subject to cash settlement who uses or benefits from the previous land or buildings.

2. Determination on the instant case

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

The plaintiff is the project implementer of "Songnam-si Housing Redevelopment Improvement Project" (hereinafter referred to as "project of this case") that redevelopments a square of 233,366 meters near Sungnam-si (hereinafter referred to as the "resident address omitted), and the defendant resided on the fourth floor of the building of this case from July 11, 1994 as the owner of the land and buildings of this case located in the project district of this case. The project of this case was approved and announced on November 7, 2016.

On December 30, 2016, the Plaintiff filed an application for adjudication of expropriation on December 30, 2016, with the Defendant who became subject to cash settlement due to the filing of application for parcelling-out. The Central Land Expropriation Committee, on February 8, 2018, determined compensation for losses for the instant land and buildings as KRW 732,084,00, and the starting date of expropriation as March 28, 2018. The Plaintiff deposited the aforementioned compensation for losses on March 27, 2018.

On August 2, 2018, the Defendant submitted to the Plaintiff a certificate of official leave that the possession of the instant building was terminated on or around July 21, 2018, and thereafter, upon the Defendant’s application, the Plaintiff paid KRW 1,492,600 to the Plaintiff on October 18, 2018.

B. We examine these facts in light of the above legal principles. Even if the Plaintiff deposited compensation for losses for the instant land and buildings determined in the adjudication procedure, it cannot be deemed that the compensation for losses under the proviso of Article 49(6) of the former Act was completed unless the Plaintiff applied for the adjudication of expropriation or did not pay it. Therefore, even if the Defendant used the instant 4th floor until the payment procedure for the director’s expenses was made, the Plaintiff may not claim a return of unjust enrichment.

The judgment below to the same purport is justifiable. The judgment below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles pertaining to the former Act on the Maintenance of Urban Areas and the Land Compensation Act regarding the use and profit-making of the previous land or buildings

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee

Justices Kim Jae-hyung

Justices Ansan-chul

Justices Lee Dong-gu