2014Da89027 Confirmation of Non-existence of Obligation

1. A;

2. B

3. C.

4. D;

5. G.

6. H;

7. I

Korea Land and Housing Corporation

Seoul High Court Decision 2012Na20828 Decided November 20, 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. Regarding ground of appeal No. 1

A. In a special supply contract for a housing site entered into between a person subject to relocation measures and a project operator, if the person subject to relocation measures was to pay the cost of the basic living facilities to the project operator by including the cost of the basic living room under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Land Compensation Act”), and thus the person subject to relocation measures was to pay the cost of the basic living room to the project operator, the portion of the special supply contract included the cost of the basic living facilities in the sale price is invalid in violation of Article 78(4) of the former Land Compensation Act, which is a mandatory law (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

On the other hand, if a project operator pays the sales price of a re-resident at a discount from the cost of creating a housing site, whether the sales price exceeds the amount obtained by deducting the cost of the basic living facilities from the cost of creating the housing site, and whether the cost of the basic living facilities is included in the sales price through mutual relations and its scope should be determined. Article 78(4) of the former Land Compensation Act prohibits a project operator from paying the cost of the basic living facilities to a person subject to relocation measures, but does not stipulate the cost of the basic living facilities to be actively borne by the person subject to relocation measures or the details of the sales price that can be received therefrom. As such, since Article 78(4) of the former Land Compensation Act prohibits a project operator from actively imposing the cost of the basic living facilities on the person subject to relocation measures, among the cost of the construction of a housing site which the project operator had actually taken on the basis of the determination of the sale price of the housing site for the actual re-resident, it should be calculated "the amount obtained by deducting the cost of the basic living facilities from

In addition, it is nothing more than dispute over whether the cost of creating a housing site, which is used as the basis for the determination of the cost of selling the housing site for the migrants, should be included in the cost of supplying the housing site at a cost lower than the cost of development, because it is nothing more than dispute over the legitimacy of the calculation of the cost of creating a housing site, it cannot be said that there is a relation to the transfer of cost of installing basic living facilities for those subject to relocation measures, and the project operator does not violate Article 78(4) of the former Land Compensation Act. Therefore, in calculating the unjust enrichment amount equivalent to the cost of installing basic living facilities included in the cost of selling the housing site for the migrants, the actual applied area should be the basis for the determination of the cost of selling the housing site at a cost of supplying the housing site at a cost of development (see Supreme Court Decision 2014Da59750, Oct. 15, 2015).

B. According to the reasoning of the lower judgment and the record, the Defendant calculated the unit price of supply of the resettled housing site, which is the basis of the determination of the sale price of the resettled housing site, in accordance with the established rules on the establishment and implementation of relocation measures, which are the Defendant’s internal regulations (hereinafter “established rules on relocation measures”), and determined based on 2,386,072m of the free supply area, which includes 73,331m of the free supply area.

Therefore, the court below is just in determining unjust enrichment in the formula stated in its holding, and it is not erroneous in the misapprehension of the legal principles as to the calculation of the amount of the free supply, which is the basis of the project operator's determination of the amount of the free supply as above, to view the amount including the amount of the free supply, as including the amount of the cost of the free supply. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below and the record, the housing site development cost in the project district of this case is calculated on the basis of the development plan and implementation plan as amended and announced to the O of the Ministry of Construction and Transportation on May 18, 2007, and such development plan and implementation plan do not include gas pressure plant or pressure plant installation and also include the road area of 1,203,194 meters. Accordingly, only in the development plan and implementation plan as announced by the Ministry of Land, Transport and Maritime Affairs on August 11, 2009, the development plan and implementation plan as announced to the P as amended and announced to the Ministry of Land, Transport and Maritime Affairs on August 11, 2009, including 75 meters of land for gas pressure plant and 1,200 meters of land for pressure plant and increase the road area to 1,25

According to the above facts, after calculating the cost of creating a housing site in the Warsaw Site in this case, the cost of developing a housing site was added to 75 meters in gas pressure plant users and 1,200 meters in a pressure plant depending on the alteration of the development plan and the implementation plan, and the road area was increased to 1,203,194 square meters in a size of 1,257,963 meters in a road. However, such alteration was changed after calculating the sale price of a resettled housing site, and such alteration did not affect the calculation of the sale price. Therefore, it is reasonable to deem that it should not be considered in calculating the amount of unjust enrichment of the defendant.

Nevertheless, the lower court calculated the Defendant’s unjust enrichment on the basis of the deeming that both of 75 square meters of gas pressure site and 1,200 square meters of household pressure site and increase in road sites were included in the site area of basic living facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the base point for calculating the installation cost of basic living facilities, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error has merit

3. As to the grounds of appeal Nos. 3, 4, and 5

For the reasons indicated in its holding, the lower court deemed that the site area of the power supply facilities as the basic living facilities is included in the area of the site of the basic living facilities, and deemed that both the structure (the retaining wall) and the incidental construction costs and capital costs are related to the construction of the basic living facilities, and calculated the building (the retaining wall) corresponding to the cost of the basic living facilities, the incidental construction cost, and the capital cost by dividing each cost by the proportion as stated in its reasoning. Examining the record in light of the relevant legal principles, such determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds

4. Regarding ground of appeal No. 6

A. Where a project operator separately determines the sales price of a housing site for migrants by applying the Si gap within the discretionary scope, the development cost of the entire housing site for the individual migrants may be deemed to have been allocated differentiatedly in accordance with the conditions of the location. Thus, when calculating the development cost and basic living facilities installation cost of individual migrants and the legitimate sales price based thereon (see, e.g., Supreme Court Decision 2014Da6572, Aug. 20, 2014). The purport of reflecting the gap lies only in maintaining equity between the persons subject to the relocation measures who purchase the housing site for the individual migrants and does not vary in the existence or scope of unjust enrichment to be returned to the entire persons subject to the relocation measures due to the reflection of the gap. Thus, the difference to be reflected in this context should be the difference between the amount per unit area of the development cost of the entire housing site subject to differential allocation and the amount per unit area of the individual migrants as a result of differential allocation (see, e.g., Supreme Court Decision 2015Da97979, Oct. 97, 2015).

B. According to the reasoning of the judgment below and the records, the defendant can find the fact that the sales price of individual migrants' housing sites was determined by reflecting the gap rate in the housing site for migrants (hereinafter referred to as "the limit of supply" in this part). Thus, in light of the above legal principles, the court below is justified in applying the gap between the sales price of one kilometer per square meter divided by the defendant's unjust enrichment and the sales price per square meter per total area of the housing site for migrants and the rate determined by the defendant's rate per square meter per total area of the housing site.

However, the court below calculated the defendant's unjust enrichment by applying the above gap based on the unit supply price, deeming that the defendant set the unit supply price of the entire unsettled housing site as KRW 1,570,272 per meter. According to the records, the above unit supply price recognized by the court below was determined as erroneous in violation of the standards of relevant statutes or the rules on the relocation measures, and thus, the defendant determined the unit supply price of the entire unsettled housing site as KRW 1,468,223 per meter and determined each unit sale price of the individual unsettled housing site.

As a result, the above determination by the court below is erroneous by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules in recognizing the facts that form the basis of the application of the gap rate to calculate unjust enrichment from the total cost of installing basic living facilities. The ground of appeal assigning this error is with merit.

5. 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 further proceedings consistent with this Opinion. 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

Chief Justice Kim Jong-il