Plaintiff 1 and 16 others

Plaintiff 2 and 17 others (Law Firm Chungcheong, Attorneys Permitted et al., Counsel for the plaintiff-appellant)

E. E.S. (Limited Law Firm, Attorneys Kim Yong-sik, Counsel for the plaintiff-appellant)

February 27, 2013

Seoul Central District Court Decision 2010Gahap72699 Decided June 28, 2012

1. The judgment of the court of first instance is modified as follows.

A. The defendant shall pay to the plaintiffs the amount of money stated in the "amount of unjust enrichment" in the attached Table (1) and 5% per annum from July 15, 2010 to March 15, 2013 and 20% per annum from the next day to the day of full payment.

B. Each of the plaintiffs' remaining claims is dismissed.

2. The total costs of the lawsuit are four-minutes, and three-minutes are assessed against the plaintiffs, and the remainder one is assessed against the defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim and plaintiffs' appeal

The judgment of the court of first instance is modified as follows. The defendant shall pay to the plaintiffs the amount of unjust enrichment calculated in attached Form 2 (2) (However, since the plaintiff 29 (1 and 2 was withdrawn, it shall be deleted) the amount of money calculated by applying each rate of 5% per annum from the date indicated in the column to the date of delivery of a copy of the complaint of this case, and 20% per annum from the following day to the date of full payment of each copy of the complaint of this case, for each remaining money, 5% per annum from the date indicated in the column to the date of delivery of the application for modification of the purport of this case, and 20% per annum from the next day to the date of full payment.

2. Purport of defendant's appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiffs' claims against the above revocation shall be dismissed.

1. Basic facts

(a) Execution of housing site development projects and national rental housing complex development projects in the new three district;

1) On May 17, 2004, the public inspection of district designation was made on December 31, 2004, and the Minister of Construction and Transportation announced the designation of district on December 31, 2004. However, on September 23, 2005, on December 29, 2005, the Defendant implemented the housing site development project with approval of the implementation plan for the housing site development project for the said project after obtaining approval of the implementation plan, on March 20, 2006, on March 20, and thereafter, on April 6, 2007, the Minister of Construction and Transportation obtained the alteration of designation of district for the housing site development project for the housing site development project for the new district, development plan, alteration of the development plan, and approval of the implementation plan.

2) On December 7, 2006, the Defendant: (a) obtained approval from the Mayor of Seoul Special Metropolitan City on December 7, 2006, to build a national rental housing of 869 square meters on a lot with 73,816 square meters in a new housing site development project district; and (b) sold 359 households (23,267.075 square meters in a site area; (c) an exclusive area of 48 square meters in a site area of 59 square meters in an exclusive area of 84 square meters in an exclusive area of 114 square meters in an exclusive area of 114 square meters in a new housing site development project district.

3) On March 20, 2006, the Defendant publicly announced a compensation plan for the housing site development project in a new district on March 20, 2006, and notified the landowner and person concerned of the compensation plan. The main contents are as follows

【Public Notice of Compensation Plans and Relocation Measures for Housing Site Development Projects in Seoul 2 Zone】

○ The base date for relocation measures: May 17, 2004; Provided, That in cases of tenants, the tenants shall be made on February 17, 2004, three months before the base date.

○ Residential Measures

(1) The owner of a house on the basis of the classification of land contained in the main sentence. (2) The owner of an apartment house on the basis of which he/she has not entered into an agreement with the owner of the apartment house on his/her own land before the date of conclusion of the agreement or the date of adjudication on expropriation of the apartment house: The owner of the apartment house who has owned the house on his/her own land within the business area shall be homeless from the base date of public announcement of the compensation plan: (2) The owner of the apartment house shall be entitled to the right of occupancy of the apartment house within the business area who has not entered into an agreement with the owner of the housing within the business area and has not entered into an agreement with the owner of the housing within 8 square meters before the date of public announcement of the purchase of the house; and (3) The owner of the housing shall be entitled to the right of occupancy of the apartment house within the business area who has not entered into an agreement with the owner of the housing within the business area until the date of public announcement of the purchase plan.

4) Meanwhile, the Defendant is also a project implementer of a project to create a national rental housing complex in a new district of three districts in which a new district was conducted after the housing site development project was conducted. A project to develop a national rental housing complex in a new district of three districts was approved on July 25, 2007, and a compensation plan was announced on September 5, 2008 and a relocation plan was announced on December 10, 2008. The main contents are as follows.

【Public Notice of Compensation Plans and Relocation Measures for Housing Site Development Project in Seoul Special Metropolitan City】

○ Establishment and Enforcement Grounds: Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works and Article 40 of the Enforcement Decree of the same Act

○ Base Date for Relocation Measures: July 27, 2006 (by single tenant, April 27, 2006, the third month prior to the base date for the tenant).

○ Criteria for selection of eligible persons

- The owner of a house on his own land shall continue to own and reside on his own land in the relevant district from the date of concluding the consultation prior to the date of the conclusion of the consultation or the date of adjudication on expropriation until the date of the adjudication on expropriation: Provided, That a person who has not continued to reside shall be homeless from the base date of the relevant

- The owner of a house on the land of another person shall be the person who has continuously owned and resided in the house within the relevant district since before the date of concluding the contract for consultation or the date of ruling of expropriation: Provided, That a person who has not resided continuously shall be a homeless person other than the relevant house from the base date to the date of

- The owner of a registered unauthorized building: A person who has owned and resided in a house registered as a residence in the Unauthorized Building Management Register within the district continuously from the base date until the date of conclusion of the consultation or the date of adjudication of expropriation: Provided, That a person who has not continued to reside shall be a homeless person from the base date of the relevant house to the date of announcement

- The owners of unregistered buildings who have been built before January 24, 1989 within the relevant district and continuously owned and resided in the unauthorized building management ledger from before the base date to the date of conclusion of the agreement or the ruling of expropriation, and all members of the household have to be homeless from the base date of the compensation plan to the date of public announcement of the compensation plan.

○ Application for Countermeasures to Support Emigration is limited to residents.

5) The development area of a housing site development project for a new 2 district is 210,113 square meters, 135,547 square meters for a paid supply area, and 74,566 square meters for a free supply area, and 21,894 square meters for a road among total development areas.

6) The total project cost for the housing site development project for a new district 2 district is KRW 242,921,491,474 as follows. Among them, direct personnel expenses, sales expenses, and general management expenses were calculated by the following methods, and capital expenses are KRW 35,028,70,454:

○ Direct labor cost = (land cost + land cost + creation cost + infrastructure installation cost) ¡¿ 0.42%

○ Sales Cost = (Site Site cost + creation cost + direct labor cost + relocation expense + relocation expense) x 0.13%

○ General management expenses = (Site site cost + creation cost + direct labor cost + relocation expenses) x relocation expenses) x 0.88%

Expenses for the installation of infrastructure 12,256,083,083, 157,773 land charges for the direct cost of non-permanent project in the main sentence, and 23,545,487,507,507 infrastructure charges for the 168,083,083,838 direct personnel expenses for 860,803,4240.42% relocation expenses for 283,864,564,558,199, and 1,811,81,63, 163, 35,028,70,454, total of 242,921,491,474 of indirect personnel expenses for 283,864,583, and the total of 1,811,163,1970.8% of capital expenses for 35,028,70,454

(b) Special supply of national housing;

1) Plaintiffs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 29, and Nonparty 3, 1, and 2 (hereinafter “Plaintiffs, etc.”) were included in the above new projects and districts, which were executed by the Defendant, as shown in the sale list.

2) The defendant notified the plaintiff et al. that he is eligible for special supply housing according to the relocation measures determined by the defendant. Accordingly, the plaintiff et al. applied for the application to the defendant for special supply housing, and the plaintiff et al. sold ○ apartment building located in Jung-gu Seoul Metropolitan Government ( Address omitted) around November 2009 (hereinafter "each special supply housing of this case").

(c) Transfer of rights by purchasers;

Plaintiff 29, Nonparty 3, Nonparty 1, and Nonparty 2 transferred the status according to the sales contract for each special housing as listed below, and the Defendant approved this.

On November 13, 2009, Plaintiff 1/2 equity of Plaintiff 302, Nonparty 3106 Dong 701, November 27, 2009, Plaintiff 33, Plaintiff 32, Nonparty 1103 Dong 804, November 2, 2009, Plaintiff 33, Plaintiff 34 Nonparty 2, 106 Dong 1005, November 18, 2009, transferee of the special supply house transfer date of the table transferor contained in the main text.

(d) Full payment of the sale price and registration of ownership transfer;

The Plaintiffs acquired ownership of each of the special housing units of this case after fully paying each purchase price indicated in the attached Form (3) to the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7 (including each number, if any, hereinafter the same shall apply), Eul evidence 1 and 5, and the purport of the whole pleadings.

2. The plaintiffs' assertion

Under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”), the Plaintiffs concluded a sales contract with the Defendant to purchase each of the special supply housing of this case as relocation measures. According to Article 78(4) of the Public Works Act, the Defendant calculated the sales price including the cost of the basic living facilities, even though the costs of the basic living facilities are not borne by the project operator and are not borne by the project operator, so the sales contract of this case are invalid only for the cost of the basic living facilities.

Therefore, the defendant is obligated to return the amount stated in the "amount of unjust enrichment" column in the separate sheet for calculation of unjust enrichment and damages for delay thereof to the plaintiffs as unjust enrichment.

3. Whether the obligation to return unjust enrichment is established

A. Whether Plaintiffs 2, 4, 6, 13, 18, 20, 21, 22, 23, 24, 25, 27, 29, and Nonparty 1 and Nonparty 2 constitute a person subject to relocation measures

1) Parties’ assertion

A) The plaintiffs

The defendant's act of deciding and notifying a person subject to relocation measures is an administrative disposition and the project operator can expand the scope of a person subject to relocation measures under the Public Works Act and the Enforcement Decree of the same Act at his/her own discretion. Therefore, the plaintiff, etc. supplied with each special housing from the defendant constitutes a person

B) Defendant

The issue of whether the buyer of the instant case is a person subject to relocation measures shall be determined in accordance with the former Public Works Act and the Enforcement Decree of the former Public Works Act, and the scope of the person subject to relocation measures cannot be expanded by administrative disposition. Thus, the owner of an unauthorized building, the person who provided the land, and the non-resident should be excluded from the person subject to relocation measures. Even if the Defendant decided the Plaintiff as a person subject to special supply, it cannot be readily concluded

2) Nature of the Defendant’s act of designating a special supplier

A) Article 78(1) of the former Public Works Act (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 the Presidential Decree, to a person who is deprived of his/her base of livelihood as a result of the implementation of a public work project, to provide a residential building due to the implementation of the public work project.” Article 40(3) of the former Enforcement Decree of the Public Works Act (amended by Presidential Decree No. 20771 of Apr. 17, 2008; hereinafter “former Enforcement Decree of the Public Works Act”) provides that “the owner of a building constructed without obtaining a building permit or filing a report, without obtaining a building permit or filing a report, and the owner of a building who does not continuously reside from the date of the public work project to the date of conclusion of the contract or the date of adjudication on expropriation pursuant to the relevant Acts and subordinate statutes (excluding subparagraph 2).”

B) According to the overall purport of evidence Nos. 6 and 7 evidence, it can be acknowledged that Plaintiffs 1, 3, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 26, 31, and 32 constitute a person subject to relocation measures as stipulated in the former Public Works Act and the Enforcement Decree of the former Public Works Act. While the Defendant does not dispute this, Plaintiff 2, 13, 21, and 22 did not own an unauthorized building and resided in the project district, the fact that Plaintiff 6, 20, and 29 (Partial transfer to Plaintiff 30), and did not provide a residential building on the ground of public work, but did not provide a residential building on the ground that Plaintiff 2 had resided in the project district, and that Plaintiff 2 did not provide a residential building on the ground that Plaintiff 36, 20, and 24, and 25, Plaintiff 26.

C) However, Article 8(1) of the Act on Special Cases Concerning the Acquisition of Land for Public Use and the Compensation for Loss (amended by Act No. 6656, Feb. 4, 2002; Act No. 5656, the Public Works Act was enacted) imposes on the project operator the obligation to establish and implement the relocation measures, and it does not directly create specific rights (such as the right to purchase ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership.

Meanwhile, Article 78(1) of the former Public Works Act provides that a project operator shall either establish and implement relocation measures or pay resettlement funds as prescribed by the Enforcement Decree of the Public Works Act for persons who lose their base of livelihood due to the implementation of public works (persons subject to relocation measures). Article 40(3) of the former Enforcement Decree of the Public Works Act provides that the owners of unauthorized buildings shall, in principle, be excluded from those subject to relocation measures. The establishment and implementation of the criteria for expanding the scope of those subject to relocation measures as prescribed by the above Act and subordinate statutes is allowed. In establishing and implementing such criteria, relocation measures, etc. shall not violate equity in mind with the view that the relocation measures, etc. are a system to restore their previous living conditions to the original state and guarantee their human life (see Supreme Court Decision 2009Du9819, Sept. 24, 2009, etc.).

D) Further to the above legal principles, the following circumstances are acknowledged based on the evidence acknowledged as follows: ① Article 78 of the former Public Works Act and Article 40 of the former Enforcement Decree of the Public Works Act are used as the basis for the relocation measures, and there is no distinction between the person falling under Article 40(3) of the former Enforcement Decree of the Act and the person falling under the relocation measures publicly notified by the defendant; ② a person subject to the relocation measures under the former Public Works Act is not immediately fixed by the Act and its Enforcement Decree, but is determined by the designation of the person subject to the relocation measures; ③ the proviso of Article 40(3)2 of the former Enforcement Decree of the Public Works Act provides that the person subject to the relocation measures is not a non-resident who fails to reside due to medical care due to disease, enlistment through conscription, public duty, school attendance, or other inevitable reasons, and thus, it is difficult to determine the scope of discretion of the person subject to relocation measures based on the determination of the above inevitable reasons, and thus, it is difficult to deem that the defendant's new criteria for the installation of the above public project is unlawful.

E) Therefore, even if Plaintiffs 2, 4, 6, 13, 18, 20, 21, 22, 23, 24, 25, 27, 29, and Nonparty 1 and Nonparty 2 are included in “the scope that is excluded from the person subject to relocation measures” under the former Enforcement Decree of the Public Works Act, the specific scope of the person subject to relocation measures should be determined by whether the Defendant was designated as the person subject to relocation measures pursuant to the criteria for relocation measures formulated inside the country.

3) Whether the Defendant distinguisheds from the special supply in accordance with the Rules on the Designation of Persons subject to Relocation Measures and Housing Supply

A) Article 8 of the Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss, Article 5 of the Enforcement Decree of the same Act, and Article 27-2 of the Enforcement Rule of the same Act provide for the establishment of relocation measures for the persons who lose their base of livelihood due to the provision of land, etc. necessary for the implementation of public projects, and the proviso of Article 5(5) of the Enforcement Decree of the same Act provides that the project implementer shall be deemed to have established relocation measures if he supplies the housing site or house to a person subject to relocation measures under the related Acts and subordinate statutes, such as the Housing Site Development Promotion Act or the Housing Construction Promotion Act. Thus, if the person subject to relocation measures under the former Rules on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss (amended by the Ordinance No. 537 of September 1, 1993), if he supplies the housing to the person subject to relocation measures under Article 15 of the former Rules on Special Cases concerning the Acquisition of Land for Public Use and the Compensation for Loss, even if the project implementer differently provided the requirements and procedures under the above Rules on Special Cases concerning the Acquisition of Land for 2.

B) However, the above legal principle also contains the content that the defendant would make a special supply to a person who is not a person subject to the relocation measures as stipulated by the defendant, but it applies to a case where the defendant did not make a special supply for the reason that he is not a person subject to the relocation measures, and if the defendant voluntarily supplied the apartment by designating a person who is not a person subject to the relocation measures as a person subject to the relocation measures, it

C) According to Gap evidence Nos. 6, 8, 9, 10 and Eul evidence Nos. 5, the defendant established the "PH Corporation Relocation Guidelines" on January 9, 2006 in order to provide for the matters necessary for the criteria for relocation measures to be established as a project operator for those who lose their base of livelihood by providing residential buildings in accordance with Article 78(1) of the Public Works Act and Article 40 of the Enforcement Decree of the same Act on Jan. 9, 2006. The above criteria do not distinguish those who are eligible for relocation measures and those who are eligible for special supply as stipulated in the Rules on Housing Supply. ② On Aug. 4, 2010, the Board of Audit and Inspection, after it operated apartment units including those who are eligible for relocation measures under the above criteria, as the result of the defendant's construction of new housing units, selected those who are eligible for relocation measures within the new area as those subject to relocation measures, and notified that the housing units were not subject to relocation measures, as stated in the new guidelines on housing units supply.

D) Accordingly, the defendant did not distinguish between the act of special supply under the regulations on the special supply of housing and the person subject to the relocation measures, but did not distinguish between the act of special supply under the regulations on the special supply of housing, the defendant may designate the person subject to the relocation measures as the person subject to the relocation measures and the non-party 2 as the person subject to the relocation measures, and can recognize the fact that the person who is not the person subject to the relocation measures is entitled to the special supply of housing in this case, and the disposition that is designated as the person subject to the relocation measures is valid. Therefore, the defendant's argument on this part is without merit.

(b) Any occurrence of a duty to return unjust enrichment;

1) Article 78(1) of the 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 will lose their base of livelihood due to the implementation of public works, and Article 40(2) of the former Public Works Act provides that "The relocation measures shall be established and implemented in cases where persons who desire to move among those subject to relocation measures are at least 10 persons, except in extenuating circumstances as prescribed by the Ordinance of the Ministry of Construction and Transportation: Provided, That the relocation measures shall be deemed to have been established and implemented in cases where a project operator supplies a housing site or house to those subject to relocation measures (including cases where a housing site or house is supplied by a project operator's arrangement) under the relevant Acts and subordinate statutes, such as the Housing Site Development Promotion Act or the Housing Act." The main sentence of Article 78(4) of the former Public Works Act provides that "The details of relocation measures shall include road, water supply and drainage facilities, and other basic living facilities, such as public facilities, in the settlement area."

2) Comprehensively taking account of the above provisions, the purpose of the Act is to promote public welfare and the appropriate protection of property rights through the efficient implementation of public works by prescribing the compensation for losses incurred in the acquisition or use of land, etc. necessary for public works through consultation or expropriation, and the relocation measures under the Act is established 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 at the same time guarantee their lives with human dignity, based on delegation of Article 78(1) of the former Public Works Act. Thus, it is reasonable to view that a project operator has to install a basic living facility under Article 78(4) of the former Public Works Act and provide them to those subject to relocation measures at the expense of the project operator, as in the case of special supply. As such, Article 78(1) of the former Public Works Act provides that the person subject to relocation measures who is obligated to establish and implement relocation measures shall be excluded from the scope of Article 78(1) of the former Public Works Act or Article 78(4) of the Act.

3) Therefore, if a special supply contract for housing or housing entered into between a person subject to relocation measures and a project operator or a supplier through his/her arrangement included the cost of the basic living facilities as stipulated in Article 78(4) of the former Public Works Act in the sale price and thus a person subject to relocation measures paid the cost of the basic living facilities to the project operator, etc., the portion of the special supply contract, which included the cost of the basic living facilities, in the sale price, in case the project operator directly supplied housing or housing, is null and void in violation of Article 78(4) of the former Public Works Act, which is a mandatory law, and the project operator is exempted from the disbursement of the amount equivalent to the cost of the basic living facilities to be borne by the project operator in accordance with the above provision. Accordingly, the project operator is obligated to return the amount of the cost of the basic living facilities to the person subject to relocation measures as unjust enrichment (as seen in the basic facts in this case, since all defendants are not the project operator's unjust enrichment).

4) In addition, where one of the parties to a contract transfers a position as a party to a contract comprehensively to a third party with the other party or with the consent of the other party, the third party who has taken over the status as a party to a contract shall succeed to the status of the transferor’s contractual position to have all the claims and obligations already incurred under the previous contract transferred (see Supreme Court en banc Decision 2007Da63089, June 23, 201, 207Da63096, Jun. 23, 201, etc.)

5) Therefore, the defendant is obligated to return the amount equivalent to the cost of the basic living facilities included in the purchase price paid by the plaintiffs to unjust enrichment. Article 78(4) of the former Public Works Act applies only to the "settlement site" as stipulated in the above provision, and the defendant's assertion that the project implementer does not apply to the case where the housing site or housing is supplied to a person subject to relocation measures pursuant to the Housing Site Development Promotion Act or other relevant Acts and subordinate statutes, such as the Housing Act, is without merit (Article 78(4) of the Public Works Act of October 17, 2007). The above amendment is enforced six months after the enforcement of the Act, but the above amendment is applied from the portion of notification of the compensation plan to the public announcement and notification of the compensation plan in accordance with the amended Act, and in the new collective housing complex development project in the new collective housing complex in which the public announcement and notification of the compensation plan was made after April 18, 2008, the defendant, a project implementer, must naturally install the basic living facilities in accordance with the above Acts and subordinate statutes).

4. Scope of unjust gains;

(a) Scope of basic living facilities;

(a) Where a person is subject to relocation measures under a new housing site development project;

The purpose of Article 78(4) of the former Public Works Act is to provide a basis for living for those subject to relocation measures. As such, 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 refers to 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 (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

2. Where a person is subject to relocation measures by creating a national rental housing complex in a new three district;

The Public Works Act was amended by Act No. 8665 on October 17, 2007. Accordingly, Article 78(4) of the Public Works Act provides that "The contents of the relocation measures shall include the basic living facilities at an ordinary level, such as roads, water supply facilities, drainage facilities, and other public facilities in the resettlement settlement area (including the housing complex constructed by the implementation of the relocation measures), and the expenses incurred therein shall be borne by the project operator: Provided, That where a project operator other than an administrative agency establishes and implements the relocation measures, a local government may partially subsidize the expenses incurred therein, and Article 78(8) of the Public Works Act provides that "the standards for expenses incurred in the basic living facilities under paragraph (4) shall be prescribed by Presidential Decree."

The contents of the Enforcement Decree according to it are as follows:

Article 41-2 (Scope, etc. of Basic Living Facilities)

(1) "Basic living facilities at a normal level" in the main sentence of Article 78 (4) of the Act means the following facilities:

1. Roads (including street lamps and traffic signals);

2. Waterworks and sewage treatment facilities;

3. Electric facilities;

4. Communications facilities;

5. Gas facilities.

(2) The expenses incurred in basic living facilities borne by a project operator (hereafter referred to as "expenses borne by a project operator" in this Article) shall be calculated by the following formula pursuant to Article 78 (8) of the Act:

1. Where the housing site is supplied;

Expenses to be borne by a project operator = Costs incurred in installing basic living facilities under paragraph (1) installed in the relevant public works zone ¡¿ (area of housing sites to be supplied for compensation to persons subject to the relocation measures ± Total area of sites supplied for compensation in the relevant public works zone)

2. Where the housing is supplied:

Expenses to be borne by a project operator = Costs incurred in installing basic living facilities under paragraph (1) to be installed in the relevant public works zone ¡¿ (the area of housing site to be provided for compensation to a person subject to measures for relocation ¡À Total area of land supplied for compensation in the relevant public works zone

(3) "Expenses incurred in installing basic living facilities under paragraph (1) which are installed in the relevant public works zone" in paragraph (2) 1 and 2 shall be the construction expenses incurred in installing the relevant basic living facilities, site expenses, and various charges to be borne pursuant to statutes in connection with the construction of the relevant basic living facilities.

(iii)the method of calculating the cost of installing basic living facilities;

① Since the amendment of the Public Works Act on October 17, 2007 was made due to reflective consideration of the scope of the measures to be supported by the person subject to the measures for relocation, the benefits given to the person subject to the measures for relocation cannot be deemed to vary before and after the amendment of the Public Works Act. ② Unlike the case where the land for resettlement is provided as the object of the measures for relocation, the special supply of housing in the construction project district is followed by the improvement of residential environment, the enhancement of convenience facilities, the enjoyment of development gains, etc., and it is necessary to grasp only the cost of the construction of infrastructure from the total project cost because it is tactical and technically difficult to distinguish only the cost of the construction of infrastructure from the total project cost. To this end, the above Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201 should be considered to be the same as the scope of the basic living facilities stipulated in the amended Public Works Act.

(b) Whether the cost of basic living facilities is included in the cost of housing construction project;

1) The Plaintiffs asserts that the construction cost of apartment buildings includes the cost of packing road within a housing complex, which is the cost of installing basic living facilities.

2) However, the Plaintiffs’ assertion is without merit in light of the following: (a) the cost of installing the basic living facilities is mainly included in the housing site development cost; (b) it is not included in the housing construction cost; and (c) even if the road packaging construction cost is included in the construction cost, as alleged by the Plaintiffs, it is difficult to deem the roads within the instant housing complex as basic living facilities as follows.

(c) Whether the basic living facilities installation cost is included in the housing site project cost;

(i) direct expenses;

A) Site costs;

The plaintiffs claim that 20,950,741,594 won [the total site cost of 201,060,709,269 won (the total site cost of 168,083,083,157,773 won + the capital cost of 32,977,51,496 won + the road area of 21,894 square meters/total area of 21,894 square meters, but less than KRW 210,113 square meters; the same shall apply hereinafter] in the housing site development project for a new district of two districts in Korea] is the basic living facility cost.

As seen above, the scope of the basic living facilities prescribed by the amended Public Works Act and the Enforcement Decree thereof and the scope of the basic living facilities prescribed by the above Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201 are the same as the scope of the basic living facilities prescribed by the above Supreme Court en banc Decision 207Da63089, 63096 Decided June 23, 201. Thus, roads with basic living facilities refer to the arterial facilities which

However, the evidence submitted by the plaintiffs alone is insufficient to recognize that the roads installed in the new district housing site development project zone fall under the main facilities connecting the roads installed in the said project zone and the roads located outside the said project zone, i.e., the main facilities, and there is no other evidence to acknowledge it.

Rather, according to the evidence No. 5, No. 3, and No. 4, the main entrance of the plaintiffs' housing complex does not require arterial facilities because the main entrance of the plaintiffs' housing complex is directly adjacent to the roads between the new fire station in the new city and the ridge. The roads installed by the defendant in the new district No. 2 are different roads installed in the project district, and accordingly, the fact that the new district No. 2 area No. 3 main arterial road opening facilities are zero (the construction cost of the new road installed in the project district is also included in the basic living facilities) can be acknowledged (the construction cost of the new district No. 2 area No. 3). However, in this case, the term installed by the defendant in addition to the existing term of the existing term of the existing term of the road, it is determined that the new term of the

Therefore, this part of the plaintiffs' assertion is without merit.

(b)the site charges;

The plaintiffs asserts that the cost borne in relation to the construction of basic living facilities among the site charges falls under the cost of site and also constitutes the cost of installing basic living facilities.

However, there is no evidence to acknowledge that there is a land provided in relation to the construction of basic living facilities, so the plaintiffs' assertion is without merit.

C) Formation costs;

(1) Of the cost of construction, the part of road opening facilities

Of the total amount of KRW 23,545,487,507 and capital expenses therefor, KRW 1,385,529,919, total amount of KRW 24,931,017,426 and KRW 2,597,838,760 (i.e., KRW 24,931,017,426 x 21,894 square meters of total development area of a road site x 21,894 square meters of total development area of a road site x 210,113 square meters of total development area of a new housing site development project district, the Plaintiffs asserted that this portion of the Plaintiffs’ assertion is included in the installation cost of basic living facilities, but it is difficult to find that a road installed in a new housing site development project district corresponds to basic living facilities. Therefore, this part of the Plaintiffs’ assertion is without merit.

(b) Contract costs;

According to the evidence No. 4-1, evidence No. 5, and evidence No. 1 of the evidence No. 4, it is recognized that the cost of installing street lights and traffic signal lights among the contract cost for the housing site development business in the new zone No. 2 area includes 58,766,100 won, and street lamps and traffic signal etc. are basic living facilities under Article 41-2 of the Enforcement Decree of the Public Works Act.

(3) Foreign installations

According to the evidence No. 4-1, evidence No. 5, evidence No. 5, and evidence No. 1 of evidence No. 4, the total project cost for the housing site development project for the new district No. 2 district No. 107,921,00 won for the removal of interference telecommunications facilities (TT) and the removal of interference facilities construction cost of 41,608,40 won (the cost of 14,452,160 won and 354,180 won has been settled) for the removal of interference distribution line construction cost of 568,289,740 won, the removal of interference telecommunications facilities construction cost of 486,413,571 won, the removal of interference telecommunications facilities construction cost of 1,398,00 won, the removal of interference facilities construction cost of 889,000 won for pre-use inspection expenses of street lights, etc., 3,018,000 won for transportation signal installation cost of existing facilities.

In light of the fact that street lamps and traffic signal apparatus correspond to basic living facilities, it is reasonable to determine traffic safety facilities as basic living facilities. Therefore, the cost of designing and supervising the facilities falls under the cost of installing basic living facilities of KRW 12,00,000.

As seen above, KRW 10,56,875 is the charge to be borne by statutes in connection with the construction of sewerage, which is a basic living facility, and various charges to be borne by statutes in connection with the construction of the relevant basic living facility also constitutes the cost of installing the basic living facility. Therefore, this constitutes the cost of installing the basic living facility.

On the other hand, 100 million won for the additional payment of the expenses for the relocation of the Korean land will be reviewed as follows.

(4) The remainder of the facility

In addition, the payment of license tax due to river occupancy, the payment of charges to the person responsible for transplant, the payment of cultural heritage drilling, excavation, and the payment of charges to the person responsible for transplant of trees due to obstacles to river occupancy, the evidence submitted by the plaintiffs alone is insufficient to recognize that the relevant facilities fall under the basic living facilities. The plaintiffs' assertion on this part is without merit, since there is no evidence to

In addition, the plaintiffs asserted that electricity charges such as street lamps and traffic signal are also included in the cost of installing infrastructure, but the cost of using electricity cannot be deemed as a basic living facility.

(5) Supervision fees

According to the evidence No. 4-1, evidence No. 5, and evidence No. 1 of No. 4, it is recognized that the total project cost of a housing site development project for a new district No. 2 district includes 8,320,696 won, such as transportation signal, etc., and the above cost constitutes the cost of installing basic living facilities.

(6) Incidental expenses;

According to the evidence No. 4-1, evidence No. 5, and evidence No. 1 of No. 4, the total project cost of a housing site development project for a new district No. 2 may be recognized as including 560,000 won as allowances, etc. for the examination committee on design change of street lights. Since the above cost is related to the construction of street lamps, it constitutes the cost of installing basic living

D) Infrastructure installation costs;

(1) The part of the sewage collection pipe construction

According to the evidence No. 4-1, evidence No. 5, and evidence No. 1 of the evidence No. 4-2, the total project cost for the housing site development project in the new area No. 2 is recognized that the sum of construction cost of sewage No. 3,016,545,08 is included in the total project cost for the housing site development project in the new area No. 3,016,545,00, and the wastewater No. 4-2 is to treat sewage to be discharged from the housing site development zone in the new area No. 2 area No. 3,000, which constitutes a sewage treatment facility, which

Under the Enforcement Decree of the Housing Act applied at the time, the Defendant stipulates that the main facilities of the waterworks and sewerage are more than 200 meters in length. Thus, the Defendant’s assertion that only the exceeding part constitutes the main facilities of the living facilities. However, Article 23 of the Housing Act does not provide for the scope of the main facilities, but provides for the portion of the main facilities under Article 2 of the Housing Act on the cost borne by a person other than the project implementer (local governments, suppliers of electricity, telecommunications, gas, etc.) among the main facilities under Article 2 of the Housing Act, and the cost of the main facilities not exceeding 200 meters is borne by the project implementer to bear

(2) Installation costs of energy communications facilities

According to the overall purport of evidence No. 4-1, evidence No. 5, and evidence No. 1 and evidence No. 1, the total project cost for the housing site development project in the new district No. 2 includes the installation cost of energy communications facilities and the additional payment cost of KRW 400,000,00 and KRW 100,000,000, which is the charge borne by the Defendant to the Korea Electric Power Corporation due to the laying of the electric arterial facilities.

However, despite the advantages of improving the urban environment and urban landscape, the scope of benefits from the underground installation of the electric arterial facilities is mainly limited to the residents living in the relevant housing complex, while its installation costs are more than 10 times more than the cost of processing construction. It is difficult to differentiate the cost of supplying electricity to the undergroundized area and the non- undergroundized area in accordance with the gold system of the electric charges. In the end, the issue of whether the underground installation is installed or not and the ownership of the cost is determined by the legislators according to the above circumstances, the degree of the progress of undergroundization and the development of the installation and management technology, and the extent of benefits from the underground installation and the difference in the cost of underground installation, the scope of the cost of undergroundization, the cost of undergroundization, the rate of underground undergroundization to the time of approval and announcement of the development plan of each housing site in this case, and the cost of installing the existing electric facilities processed after the implementation of the project in this case, it is not reasonable to 201, in principle, to 2015.

Therefore, the underground installation of electric facilities cannot be deemed to be the basic living facilities at a normal level as of the time of their installation. Therefore, the plaintiffs' assertion on this part is without merit.

(c) Other infrastructure charges;

(A) Costs of the road project outside a district (the first, second, and additional);

According to the evidence No. 4-1 and evidence No. 4-1 and the whole purport of the arguments and arguments, the total project cost of the new district No. 2 shall include KRW 1 billion in the project cost of roads outside a district (1j), KRW 1 billion in the project cost of roads outside a district (2j), KRW 700 million in the project cost of roads outside a district (2j), and KRW 700 million in the project cost of roads outside a district. The above road project cost can be acknowledged by the Defendant’s burden on the head of Seoul Metropolitan Government with regard to the compensation, etc. for the land included in a road while entrusting the project, and the above road is a period of time as a road adjacent to the main entrance of a new district No. 2 housing complex.

Therefore, the plaintiffs' assertion that this is not a cost of installing a main facility, but a cost of installing a basic facility is without merit.

(B) The portion borne by sewerage charges

According to the evidence No. 4-1, Gap evidence No. 5, and Eul evidence No. 1, the total project cost of the new housing site development project in the new housing site development project shall be deemed to have included 5 billion won of the amount borne by a sewerage burden. However, the amount borne by the defendant shall be borne by the cost of remodeling the public sewerage corresponding to the key facilities according to the Sewerage Act which was implemented separately from the cost of the sewerage facilities installed in the relevant public works zone, and this constitutes the cost of installing the key facilities and is not the cost of installing the key facilities, which are the basic facilities,

(C) Part of the metropolitan transport facility charges

According to the evidence No. 4-1 and No. 1, No. 4-2, and No. 1-2, the total project cost of a housing site development project for a new district 2 district is deemed to include a total of 1,043,052,000 of the charges for metropolitan transport facilities. However, in light of the purpose of imposing charges for metropolitan transport facilities or the purpose of its use (the charges for the construction and improvement of metropolitan transport facilities, which are traffic facilities to process a wide-area traffic demand in metropolitan areas, and the charges for the construction of traffic facilities, which are located outside the project area of this case, a local government having jurisdiction over the implementation plan for measures to improve metropolitan transport facilities, and the charges for the construction of traffic facilities, which are located outside the project area

(2) In the instant case, the Plaintiffs did not expressly state any assertion regarding the Special Act on the Management of Intercity Transport in Metropolitan Areas, and thus, are not separately determined. Article 11-2 of the same Act regulates the legal relationship between the imposing authority and the project implementer. As such, the issue of whether a project implementer may transfer the charges to a person subject to relocation measures may be determined depending on whether the charges are basic living facilities. Therefore, it cannot be readily concluded that this part is included in unjust enrichment.

(D) Ecosystem Conservation Cooperative Part

According to the evidence Nos. 4-1 and 1-2, the total project cost of a new district housing site development project is deemed to include KRW 74,775,00 for the Cooperation Fund for the Conservation of Ecosystem, but in light of the purpose of the Cooperation Fund for the Conservation of Ecosystem or its use, it cannot be deemed to constitute the installation cost of basic living facilities. Thus, this part of the plaintiffs' assertion is without merit.

(e) Parts of expenses incurred in creating forest replacement resources

According to the evidence No. 4-1, No. 4-1, No. 1, and No. 1, the plaintiffs' assertion on this part is without merit, since it is found that the total project cost for the housing site development project for new districts No. 2 is included in KRW 21,711,830, in the expenses for the forest site development project for the forest site development project for new districts No. 21,711,

(ii)indirect costs (direct personnel expenses, sales expenses, general management expenses, capital expenses);

As seen earlier, direct personnel expenses, sales expenses, and general management expenses were calculated by multiplying site expenses, site charges, development expenses, infrastructure installation expenses, relocation measures expenses, direct personnel expenses (excluding capital expenses for them), by a certain rate.

However, direct personnel expenses refer to personnel expenses and welfare expenses for employees directly performing or supporting the relevant business, sales expenses to be incurred in sales expenses, and general management expenses to the general management expenses for the project operator (including personnel expenses, lease expenses, research and development expenses, and other expenses required for general management, but excluding the amount included in direct personnel expenses), and capital expenses refer to the capital expenses required for the procurement of the project expenses under the implementation plan, so there is no relation to the cost of basic living facilities installation.

Of course, since the cost of the basic living facilities recognized earlier was calculated by multiplying the input cost or the cumulative amount of net input by a certain percentage, the cost of the basic living facilities in the new district 2 district housing development project was included in the total cost of the housing site development project. However, in the case of relocation measures due to housing supply, the cost of the basic living facilities can only be determined as "legal" because it is not technically or tactically difficult to determine the cost of the basic living facilities. However, in the former Enforcement Decree of the Public Works Act, the term "construction cost, site cost, and various charges to be borne by the law in relation to the construction of the relevant basic living facilities" is defined as the cost of the basic living facilities, and it does not separately include any indirect cost such as direct labor cost, sales cost, general management cost,

D. Calculation of return of unjust enrichment

1) Out of the total project costs for housing site development projects in a new district, the costs recognized prior to the cost of basic living facilities installation are as follows:

(1) Among the cost of creation: 588,766,100 won.

(2) Among the cost of creation: 1,218,231,246 won [this refers to 1,218,231,240 won + the cost of relocating electric power facilities with obstacles + KRW 41,608,400 for the cost of relocating electric power facilities with obstacles + ( KRW 14,452,160 + KRW 354,180 + the cost of moving electric power lines with obstacles + KRW 568,289,740 for the cost of moving electric power lines + KRW 486,413,571 + the cost of moving electric power facilities with obstacles + KRW 1,39,000 for pre-use inspection of street lamps + KRW 3,018,00 for traffic signalling construction + KRW 93,00 for traffic signalling construction cost, + KRW 1,50 for traffic safety and supervision of urban railroad facilities + KRW 1,386,00 for cost of moving electric power facilities with impediments traffic signals, etc. + KRW 1050 for traffic facilities.

(3) Supervision costs out of the development costs: 8,320,696 won.

(4) Among the cost of creation: 560,000 won.

(5) Costs for construction of sewage collection pipes: 3,016,545,008 won

(6) Aggregate: 4,832,423,050 won.

(ii)in the case of the supply of housing, the cost required for basic living facilities;

In such cases, the method of calculating the cost to be borne by a project operator under the Enforcement Decree of the Public Works Act = Costs of installing basic living facilities installed in the relevant public project zone 】 (the total area of sites supplied for compensation to a person subject to the relocation measures ± (the total area of sites supplied for compensation in the relevant public project zone) is as seen above (the sale price paid in part of the plaintiffs is not wholly included in the cost of creating a housing site per square meter paid by the defendant, but the cost of basic living facilities is calculated by a "legal method" under the Enforcement Decree of the former Public Works Act.

Therefore, the cost of installing basic living facilities per 1 square meter of a cost supply area is 35,651 won (total cost = 4,832,423,050 won ± the cost of installing basic living facilities for living ± 135,547 square meters). Thus, the amount of unjust enrichment that the Defendant is obligated to return to the Plaintiffs is as indicated in the “amount of unjust enrichment” column in attached Table 1, which is the amount obtained by multiplying the cost of installing basic living facilities for living per 1 square meter by the site area of the special supplied housing that the Plaintiffs

3) As to the initial date of calculation of unjust enrichment

Although the Plaintiffs seek for the payment of damages for delay from the date of each final payment, the scope of return of unjust enrichment is subject to Article 748 of the Civil Act to the extent that the benefits received by a bona fide beneficiary exist, and in the case of a malicious beneficiary, the interest on the profits received is liable to be refunded. There is no evidence to prove that the Defendant, at the time of receiving the sales payment from the Plaintiffs, was aware that the possession of its own

However, when a bona fide beneficiary has lost, the defendant is considered to be a malicious beneficiary from the time of filing the lawsuit, and the defendant is obligated to pay damages for delay to the plaintiffs as a malicious beneficiary from July 15, 2010, clearly stated that it is the date of the lawsuit in this case.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs the amount of money in the "amount of unjust enrichment" as stated in the separate sheet (1) and to pay 5% per annum as stipulated in the Civil Act from July 15, 2010 to March 15, 2013, which is the date of the judgment of the court of first instance, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the date of full payment. Each plaintiffs' claim is justified within the above scope of recognition, and the remaining claims are dismissed. The judgment of the court of first instance is unfair. Accordingly, the judgment of the plaintiff 2, 4, 6, 13, 18, 20, 21, 23, 24, 27, 27, 29, 36, 37, 35, 37, 14, 36, 15, 16, 17, and 1.

[Attachment List omitted]

Judges Kim Yong-sik (Presiding Judge)