[1] The institutional purport of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] In a case where the implementation of relocation measures is substituted by the supply of a housing site or a house under the Housing Site Development Promotion Act, etc. pursuant to the proviso of Article 40(2) of the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, whether the migrants can bear only the possession price of the housing site, the cost of housing site formation, and the cost of construction (affirmative), and the legal nature of the said provision

[3] The case holding that where a project operator specially supplies apartment houses to be constructed within a housing site development project zone as relocation measures for those who lose their means of livelihood as a result of the incorporation into a housing site development project zone, and that the sale price shall be equal to the general buyers, this is invalid as it violates Article 78 (4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, which is a mandatory law, and the proviso of Article 40 (2) of the Enforcement Decree of the same Act, and the project operator is obliged to return the portion exceeding the legitimate sale

[1] Relocation measures under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor are measures for relocation of residents who lose their base of livelihood by providing land, etc. necessary for the implementation of a public project, and thus a project operator creates a housing site that includes basic living facilities, constructs housing on the ground, and individually supplies migrants with only the cost of input. The original purpose of the plan is to restore the previous living conditions of migrants to their original state, and at the same time, provide them with active and policy consideration by the State as part of the so-called living compensation for guaranteeing their human life.

[2] Under Article 78(4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, if a project operator creates a housing site in a resettlement area for migrants or constructs and supplies housing on the ground, the costs of installation of public facilities, etc. shall not be transferred to migrants. However, the migrants shall be construed to bear only the cost of construction when the housing site is possessed, the cost of construction of housing site, and the cost of construction of housing on the ground. In addition, the proviso of Article 40(2) of the Enforcement Decree of the same Act provides that if a project operator supplies housing site or housing 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 Act, the relocation measures shall be deemed to have been established and implemented, and it shall be deemed that “the construction or housing is supplied to the person subject to relocation measures, such as the Housing Site Development Promotion Act or the Housing Site Development Promotion Act” is added to “the person subject to construction or housing under the related Acts and subordinate statutes such as the housing site development project or the Housing Site Development Promotion Act” in addition to the construction or housing site construction cost.

[3] The case holding that, in case where a project implementer, as a result of incorporation into a housing site development project zone, intended to specially supply apartment houses to be constructed within the housing site development project zone as relocation measures for those who lose their means of living, and arranged apartment construction companies to conclude a sales contract with them and decided the sales price to be the same as the general buyers, it is invalid because it violates Article 78 (4) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, which is a mandatory law, and the proviso of Article 40 (2) of the Enforcement Decree of the same Act, and it is judged that the sales contract based on a legitimate sale price would have been concluded even if there is no invalid portion, the project implementer is obligated to return the excess portion as unjust

[1] Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 78(1) and (4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40(2) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [3] Article 78(1) and (4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40(2) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article

Plaintiff 1 and three others (Law Firm Jeong-dong, Attorneys Kim Young-young, Counsel for the plaintiff-appellant)

Korea Land Corporation (Law Firm Hancheon, Attorneys Yu Pung-min et al., Counsel for the plaintiff-appellant)

March 6, 2008

1. The defendant shall pay to the plaintiff 1 and 3 121,085,564 won, 109,580,644 won, 87,29,517 won, and 5% per annum from June 30, 2006 to March 27, 2008, and 20% per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On April 30, 2001, the Defendant decided to carry out the housing site development project for the UP district (hereinafter “instant housing site development project”), but the location was designated and announced as a planned area for housing site development that covers 9,042,00 square meters of the project area, 120,000 persons (40,000 households) from the approval date of the development plan to December 2, 2007 from the date of approval of the development plan, the project area was 9,042,00 square meters of the project area, and the accommodation population and housing plan was 120,000 persons (40,000 households).

B. On April 2002, the Defendant provided residential buildings due to the instant housing site development project to the persons who were deprived of their base of livelihood, and provided housing sites to those who continued to own and reside in the relevant project district from one year before the date of public notice of designation of the planned area to the date of public notice of approval of the implementation plan or the date of public notice of the compensation plan, and who received compensation for losses. However, the Defendant decided that the housing site supply price to those who failed to meet their qualifications should be below 80% of the cost of creation, and the apartment house (special housing supply) should be granted to those who failed to meet their qualifications, and the supply price should be the general sale price.

C. Around April 21, 2003, the Defendant notified the Plaintiffs designated as eligible for relocation measures under the Housing Site Development Project Act that they were subject to special supply of housing because they failed to meet the same qualifications as stated in the above compensation consultation guidance, and then arranged and arranged Donam Comprehensive Construction, Masco Construction, and Rod HSD Co., Ltd. (hereinafter “each of the instant mediation construction business entities”), which are apartment construction business entities, and on July 21, 2004, Plaintiff 1 paid the sales price to 260,80,000,000 won for 20,000,000,000 won for 20,000,000,000 won for 20,000,000 won for 20,000,000 won for 20,000,000 won for 20,000,000 won for 20,000,0000 won for 20,74, 167,27,04,

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, 6 (including each number; hereinafter the same shall apply), Eul evidence Nos. 3, 4, 5, and 7, and the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the parties' assertion

The plaintiffs asserted that the defendant, a project operator, should specially supply apartment houses to the plaintiffs who are the subjects of relocation measures according to the implementation of relocation measures for the housing site development project in this case, only "the possession price after deducting the installation cost of basic living facilities and the cost of apartment building construction." However, since the defendant's project profit should be supplied as a general sale price which includes the defendant's project profit, the defendant should return the portion that the defendant received in excess of the legitimate sale price to the plaintiffs as unjust enrichment. However, unlike the case where the relocation settlement site is developed as part of relocation measures or the housing construction project is implemented, if housing sites or houses are supplied to the subjects of relocation measures, the defendant can supply the land as a general sale price to the subjects of relocation measures.

(b) Markets:

(1) Partial invalidity of each sales contract of this case due to violation of the mandatory law

Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Projects”) provides that “A project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by the Presidential Decree for those who lose their base of livelihood due to the provision of residential buildings due to the implementation of public works projects.” The relocation measures under the above Act provide land, etc. necessary for the implementation of public projects to the project operator, or individual supply housing sites with the cost of the relocation, to the migrants, for the construction of housing sites including basic living facilities or the construction of housing units on such ground. It shall be deemed that the relocation measures have been formulated by the government’s active and policy consideration for the relocation and relocation of the housing site to ensure that the relocation and relocation of the housing site is no longer than the cost of the housing site. This shall also be construed as the construction and relocation measures for the relocation of the housing site to be implemented by the project operator in consideration of the purpose of the Housing Site Development Promotion Act, and the construction and relocation measures for the housing site shall also be construed as the construction and relocation measures for the housing site to be supplied to the project operator.

According to the above facts, the defendant decided to specially supply apartment houses to be constructed within the project district by implementing the housing site development project of this case, instead of creating and supplying a new house site as relocation measures for the plaintiffs who lose their base of living due to the incorporation of the housing site development project of this case into the housing site development project of this case. Each mediation construction contractor of this case shall enter into each of the sale contracts of this case with the plaintiffs, and shall set the sale price in the same manner as the general buyers. In light of the above legal principles, the sale contract under the above sale price and conditions is null and void as they are in violation of the Public Works Act, which is a mandatory law, in light of the above legal principles. On the other hand, in light of the above circumstances of the conclusion of the sale contract, etc., the plaintiffs were deemed null and void between each mediation construction contractor of this case and each of the above apartment houses without the above invalid portion, and therefore, it appears that the sales contract of this case, including only the purchase price and construction cost of housing site, and construction cost, is valid.

(2) The reasonable sale price to be paid by the Plaintiffs

As seen earlier, it is reasonable for the Defendant to impose only the possession price of the housing site, the construction cost of the housing site, the construction cost of the apartment site, the construction cost of the apartment site, the construction cost of the project implementer, etc. as unilaterally owned by the project implementer, etc., insofar as the data are not disclosed by the project implementer, etc., it is most difficult for the general seller or relocation measures entity to know the contents. In such a case, the apartment construction cost can be estimated based on data to estimate the possession price of the housing site, the construction cost of the housing site, the construction cost of the apartment site, the construction cost of the apartment site, etc. If the estimated apartment construction cost falls short of the actual purchase cost of the housing site, the construction cost of the apartment site, the construction cost of the apartment site, the construction cost of the apartment site, the construction cost of the building site, the construction cost of the apartment site, etc. can be estimated by submitting data to the project implementer, but it is reasonable to view that the estimated apartment construction cost can reflect the error of the construction cost of the apartment site, the construction cost of the building, the construction price of the building, the size of the building, the building, and the size of the building.

In full view of the contents of evidence Nos. 10, 11, and 12, each of the following facts can be acknowledged as follows (individual apartment value = contract area/total apartment area 】 apartment area 】 total apartment area 】 total apartment price, and the amount of real estate purchased by the plaintiffs, calculated based on the real estate value, which is the tax base of the acquisition tax and registration tax, and the real estate value in preparation for the individual apartment area purchased by the plaintiffs.

Plaintiff 177.5749 101,859.3106 80,142,047,758 won, 139,714,436 won, Plaintiff 37,606.637,608.637,608,914,760 won, 135,357 won, 410.29061,368.860 won, 360 won, 135,784,784 won, 87,707,483 won, 483 won, which is the value of an individual apartment.

Therefore, as above, the above "individual apartment value" estimated by real estate value, which is the tax base of acquisition tax, should be viewed as a legitimate sale price to be paid by the plaintiff.

(3) The occurrence, amount, etc. of the obligation to return unjust enrichment

As seen above, the Defendant, as a result of the instant housing site development project and the relocation measures therefor, has to supply each apartment building constructed by each of the instant arrangement construction business operators under the Defendant’s arrangement. Plaintiffs 1 and 260,80,800,000 won, Plaintiffs 3 and 244,60,000 won, Plaintiffs 2 and 175,000 won, and Plaintiff 4 and 175,000 won as sales price under each of the instant sales contract, respectively, were paid to each of the instant arrangement construction business operators. As such, the Defendant, through each of the instant arrangement construction business operators, has the above 121,085,564 won (i.e., 260,80,000 won -139,714,714,436 won) from Plaintiffs 1 and 3, and thus, has the obligation to return the amount equivalent to the above 70,500,716,3614,2085 won (i.e.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 and 3 121,085,564 won, 109,580,644 won, 87,29,517 won, and 20% interest per annum under the Civil Act from June 30, 2006 to March 27, 2008, and 20% interest per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, as the plaintiff 2 seeks by the same plaintiff, as the plaintiff 1 and 3, 109,580,64 won, 89,64 won, 89,517 won, and each of the above amounts, as claimed by the plaintiff 4, as claimed by the plaintiffs. Therefore, the plaintiffs' claim of this case is justified, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Park Jae-ap (Presiding Judge)