2015Da1291 Confirmation of Non-existence of Obligations

2015Da1307 (Consolidated) Confirmation of the existence of a debt

2015Da1314 (Consolidation) Confirmation of the existence of a debt

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Korea Land and Housing Corporation

Seoul High Court Decision 2011Na98947, 201Na98954 (Consolidated), 2011Na98954 (Consolidated), 2011Na98961 (Consolidated) Decided November 27, 2014

February 18, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal on the calculation of unjust enrichment from the pre-sale cost of the cost of basic living facilities, the lower court, based on its stated reasoning, on the premise that the Defendant calculated the sales price not exceeding 265m of the pre-sale housing site in this case by deducting the cost of installation of basic living facilities from the amount based on the calculation of the cost of cost of creation of housing site (total project cost - the cost of relocation measures). Accordingly, the legitimate sale price of the instant sales contract should be calculated on the basis of the cost of creation of housing site. Ultimately, on the basis of the premise that the legitimate sale price should be calculated [total project cost (excluding relocation measures expenses) - the cost of basic living facilities: the cost of installation of basic living facilities: X-sale area for consideration: if the actual supply price of housing sites by the Plaintiff exceeds the above legitimate sale price, the above excessive portion is the cost of installation of basic living facilities that are transferred

Examining the record in light of the relevant legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, it did not err by misapprehending the legal principles on the calculation method of unjust enrichment based on the pre-payment of the cost of basic

2. As to the ground of appeal on the establishment area of basic living facilities

A. In a road where a project implementer is required to provide basic living facilities to a person subject to relocation measures, notwithstanding its length or width, the roads corresponding to the arterial facilities stipulated in Article 2 subparag. 8 of the Housing Act, that is, roads connected to the roads outside the relevant housing complex, which are located outside the relevant housing complex (see, e.g., Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road installed in a public-service zone by a project implementer, which is in charge of connecting the entrance and other roads outside the relevant housing complex, etc. in the relevant housing complex, and is also included in the roads that are located in the relevant project zone and are in charge of connecting the roads outside the relevant housing complex, etc., but it cannot be deemed that such roads are included in the basic living facilities, if there are special circumstances not to be deemed essential facilities for the achievement of functions of the housing complex, etc. and the passage of the entire residents (see, e.g

B. The court below acknowledged the facts that the total area of the roads in the project district of this case is 1,973,864 meters, and rejected all the Defendant’s assertion that (1) the entire area of the above road constitutes basic living facilities, and (2) this part of the roads installed within the project district of this case, excluding the area of the main arterial roads corresponding to the term roads, auxiliary arterial roads, office roads, and 8 meters or more in width, the remainder constitutes basic living facilities, and (2) only the portion equivalent to the ratio of the total area of the project district of this case to the area of the exclusive residential area and the general residential area is the basic living facilities.

C. (1) In light of the above legal principles, the lower court’s rejection of the Defendant’s above (1) and (2) on the grounds as indicated in its reasoning is justifiable, and there was no error by misapprehending the legal doctrine on the scope of basic living facilities, contrary to what is alleged in the

(2) However, according to the reasoning of the judgment below and the record, the part of the "Geogyeong-si," among the metropolitan transport facilities in the project district of this case, is connected to IC or Yangyang-si, which is located outside the project district of this case, and both end of the underground roads are connected to IC or IC. In light of the aforementioned legal principles, it is highly likely that the above underground passage (hereinafter referred to as 'the instant underground passage') among roads constructed within the project district of this case, is not an essential facility for the achievement of functions of the housing complex, etc. in the project district of this case and the passage of all residents.

Nevertheless, the lower court determined that the entire area of the road in the instant project district constituted basic living facilities solely based on the circumstances indicated in its reasoning, without sufficient deliberation as to whether the instant underground passage road is in charge of connecting the entrance of the housing complex, etc. in the instant project district and the roads outside the project district. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of basic living facilities without exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

(3) However, the defendant, as the ground of appeal, should exclude the area of the road corresponding to the metropolitan transport facility from the area of the road which is a basic living facility in addition to the underground passage of this case, and it is argued that the "State-do 48 line" and "Yanpo City-Gu 98 line located within the project district of this case" also do not constitute a basic living facility. However, in light of the above legal principles, among roads which are metropolitan transport facilities, the roads leading to the project district of this case among the roads which are traffic facilities do not belong to the underground passage of this case, and it is reasonable to view that all of the above roads included in the entire road area of the defendant's assertion fall under the basic living facility as the roads which are responsible for connecting the entrance of the housing complex, etc. and other roads located outside the project district of this case.

In addition, the defendant asserts that the area of a traffic plaza should not be included in the installation area of basic living facilities as the grounds of appeal. However, according to the reasoning of the judgment below, the court below can find out the fact that the traffic plaza area is not included in the installation area of basic living facilities. Thus, this part of the ground of appeal cannot be accepted

3. As to the ground of appeal on the cost of creating basic living facilities

A. Of the cost of housing site development, the cost of the item appropriated for the cost of creation is acknowledged as having been spent for the cost of cost of construction of basic living facilities, i.e., the cost of construction of basic living facilities. However, the cost of construction of basic living facilities is included in the cost of construction of basic living facilities within the percentage of the total or total project area of the cost of construction of basic living facilities, and the burden of proof of relevance is the burden of cost of construction of basic living facilities (see Supreme Court Decision 2014Da85391, Jul. 9, 2015).

B. (1) The lower court, based on its stated reasoning, determined that the cost of water supply and sewerage construction, the cost of electricity construction, the cost of water purification plants installation, the cost of water purification plants, the cost of water pressure plant construction, water quality restoration center 1, and the cost of installation of water quality rehabilitation center 2 are included in the cost of construction of basic living facilities

Examining the records in light of the above legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the cost of creating the basic living facilities.

(2) Furthermore, on the grounds indicated in its reasoning, the lower court determined that the costs of installing structures (in the underground garage), drainage pumps (2), and pumps doping are also included in the cost of creating basic living facilities.

However, according to the records, the above structure(s) is likely to be installed in the underground roads located outside the project district of this case and the end is likely to be connected to the roads located outside the project district of this case. The above drainage pumps (2) and pumps, and the above drainage pumps (2) and pumps are not the facilities related to the upper water, but rather installed in the reservoir, etc., which is the disaster prevention facilities as defined in Article 2 (1) 5 of the Enforcement Decree of the National Land Planning and Utilization Act.

Therefore, the court below should sufficiently examine whether each of the above installation costs constitutes the construction cost of the basic living facilities, but held that all of them are included in the construction cost of the basic living facilities. In so doing, the court below erred by misapprehending the legal principles on the construction cost of the basic living facilities without making a necessary deliberation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

(3) Based on its stated reasoning, the lower court determined that the total amount of the cost of packing, street lamps, and traffic signal, which can be deemed to have been spent in connection with the construction of roads in the instant project district, is included in the cost of creating basic living facilities, and that the soil construction cost constitutes the cost of creating basic living facilities within the scope of the ratio of the area of installing basic living facilities to the total project area.

The defendant asserts that the construction cost related to roads that cannot be viewed as basic living facilities among roads within the project district of this case should be excluded from the construction cost of basic living facilities.

However, according to the reasoning of the judgment below and the record, the underground passage road of this case where it is probable to deem that it does not fall under the basic living facilities, as seen earlier, is part of the Kimpo-si road, which is a metropolitan transportation facility, and the construction cost related thereto was separately appropriated in the taxi development cost, and the court below also stated the fact that it does not fall under the construction cost of the basic living facilities, on the ground that it constitutes the metropolitan transportation

Therefore, the construction cost related to the roads, such as the packing construction cost, street lamps, and traffic signal construction cost, mentioned above, should be deemed unrelated to the construction of the instant underground roads, which are part of the Kimpo-Speed road, and its total amount constitutes the construction cost of the road, which is the basic living facilities (see Supreme Court Decision 2014Da8997, Oct. 15, 2015). Therefore, this part of the Defendant’s assertion is rejected. However, the soil construction cost appears to be an item that includes the entire cost of the instant project, and there is no other evidence to deem that it is included separately in the amount appropriated as the construction cost of the instant underground roads. As seen earlier, as long as the lower court’s determination was erroneous, the lower court’s determination that calculated the soil construction cost included in the construction cost of the basic living facilities of the instant underground roads, should also be deemed to be erroneous. The allegation in the grounds of appeal assigning this error is with merit.

(4) The cost of installing a living facility includes not only the direct cost for the installation of the facility, but also the indirect cost that may be deemed spent for the installation of the facility (see Supreme Court Decision 2013Da17087, Oct. 11, 2013).

Therefore, the lower court’s determination that the portion spent to install the basic living facilities among the direct labor cost, sales cost, general management and capital cost is also included in the cost of installing the basic living facilities for its own reasons as stated in its holding is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending

However, according to the reasoning of the judgment below, the court below calculated the direct personnel expenses, sales expenses, general management, and capital expenses corresponding to the cost of basic living facilities in a certain ratio to the total amount of the site cost and the cost of creating the basic living facilities. As seen earlier, in calculating the site cost and the cost of creating the basic living facilities, the area of the road or soil construction expenses included therein should be re-calculated, and whether some of the structures (in underground lanes) are excluded from the cost of installing the basic living facilities, and the cost of installing the drainage pumps (2) and the pumps should be re-examineed. Accordingly, each item should be re-calculated accordingly

Ultimately, the lower court erred by misapprehending the legal doctrine on the calculation of the cost of installing basic living facilities, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim Yong-deok

Justices Kim Jae-han

A person shall be appointed.