[1] The statutory base date for relocation measures for urban development projects, which falls under the “date of public notice under relevant laws and regulations for public works” (=the date of public notice for designation of urban development zones)

[2] In a case where an executor of a public project included a person subject to relocation measures beyond the scope of a person subject to relocation measures under Article 78(1) and Article 40(3) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, whether an unresident also bears the duty to install a basic living facility pursuant to Article 78(4) of the same Act (negative)

[3] Whether the area of the preserved site should be excluded from the total business area when calculating the basic facility site cost, etc. in the public works (affirmative in principle)

[1] Article 24 of the Urban Development Act, Article 7 of the former Urban Development Act (Amended by Act No. 9044, Mar. 28, 2008); Article 11(1) and (2) of the former Enforcement Decree of the Urban Development Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 78(1) and (4) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (Amended by Act No. 8665, Oct. 17, 2007); Article 40(3)2 of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (Amended by Presidential Decree No. 20722, Feb. 29, 2008); Article 80(2) of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor / [2] Article 80(3)6(4)6) of the former Enforcement Decree of the Act on the Compensation Therefor

[1] [2] Supreme Court Decision 2012Du22911 Decided July 23, 2015 (Gong2015Ha, 1256), Supreme Court Decision 2014Da14672 Decided July 23, 2015 (Gong2015Ha, 1215) / [1] Supreme Court Decision 2007Du13340 Decided February 26, 2009 (Gong2009Sang, 381) / [2] Supreme Court Decision 2012Da10981 Decided September 4, 2014 / [3] Supreme Court Decision 2014Da85391 Decided July 9, 2015 (Gong2015Ha, 1132)

Plaintiff 1 and 12 others (Law Firm Chungcheong, Attorneys Permitted et al., Counsel for the plaintiff-appellant)

Plaintiff 6 and two others (Law Firm Chungcheong, Attorneys Permitted and one other, Counsel for the plaintiff-appellant)

EP Corporation (Law Firm Barun Law LLC, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na70038 decided January 9, 2014

The part of the lower judgment against Plaintiffs 4, 5, 1, 2, 3, 9, 12, 13, 15, and 16, the part against which the Defendant lost against Plaintiffs 7, 8, and 14 is reversed, and that part of the case is remanded to the Seoul High Court. The appeals by Plaintiffs 6, 7, 8, 10, 11, and 14, and those appeals by Plaintiffs 1, 2, 3, 9, 12, 13, 15, and 16 are all dismissed. The costs of appeal by Plaintiffs 6, 10, and 11 are assessed against the said Plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

(1) In full view of the language, content, and legislative purport of Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”) and Article 40(3)2 of the former Enforcement Decree of the Public Works Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”), the lower court determined that the “date of public notice, etc. under the relevant Acts and subordinate statutes for public works” should be deemed to be the “date of public notice, etc. under the relevant Acts and subordinate statutes for public works” as referred to in Article 40(3)2 of the former Enforcement Decree of the Public Works Act, which is the public announcement date of the indemnity plan for the urban development project of this case.

(2) However, the lower court’s determination is difficult to accept for the following reasons.

Article 24 of the Urban Development Act provides that "An implementer shall establish and implement relocation measures for those who lose their base of livelihood due to the provision of land, etc. necessary for the implementation of an urban development project as prescribed by the Public Works Act." Article 78 (1) of the former Public Works Act provides that "a project implementer shall establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for those who are deprived of their base of livelihood due to the provision of residential buildings (hereinafter referred to as "persons subject to relocation measures") due to the implementation of an urban development project," and stipulates the details of measures for those subject to relocation measures as the establishment and implementation of relocation measures or the payment of resettlement funds, and delegates the contents of such measures to the Presidential Decree. Accordingly, the Enforcement Decree of the former Public Works Act provides that the specific scope of those subject to relocation measures who are excluded from those subject to relocation measures under Article 40 (3) shall be prescribed in each subparagraph, and the main sentence of Article 78 (2) of the same Act provides that "the owner of a building who fails to continuously reside from the date of announcement, etc. under relevant Acts and subordinate statutes for the relevant public project."

Furthermore, with respect to the scope of a person subject to measures for resettlement under the Urban Development Act, the date of public announcement under the relevant Acts and subordinate statutes, etc. under Article 40(3)2 of the former Enforcement Decree of the Public Works Act, which is the base date for measures for resettlement, can include not only the date of public announcement of approval but also the date of public announcement of public inspection if the relevant Acts and subordinate statutes, which requires the application of the Public Works Act to the procedures for expropriation of land are planned to make public announcement as well as the date of public announcement of approval (see Supreme Court Decision 2007Du1340, Feb. 26, 2009, etc.). In addition, the criteria for determining whether a person is a person subject to measures for resettlement under the relevant Acts and subordinate statutes, should be individually specified in accordance with the relevant Acts and subordinate statutes, and it is reasonable to deem that the legal base date for relocation measures falling under the “date of public announcement, etc. under the relevant Acts and subordinate statutes” falls under the criteria for public inspection under Article 30(1)4(3)1) of the former Enforcement Decree of the Urban Development Act.

Nevertheless, on July 9, 2003, the lower court determined otherwise by deeming that the number of buyers, Nonparty 1, Nonparty 2, and the resident owners at the time of the non-party 3 constituted a person subject to the relocation measures stipulated in the former Public Works Act, and thereby, recognized the Defendant’s obligation to return unjust enrichment to the Plaintiff 4, Plaintiff 5, Plaintiff 7, Plaintiff 8, and Plaintiff 14 who acquired the right to sell the land from the purchaser, thereby adversely affecting the conclusion of the judgment by either misapprehending the legal doctrine regarding “the date when the public notice, etc. is given under the relevant Act and subordinate statutes for public works” under Article 40(3)2 of the former Enforcement Decree of the Public Works Act, or failing to exhaust all necessary deliberations.

Supreme Court Decision 2009Du3323 Decided June 11, 2009 cited by the judgment below is related to a matter of which the date of voluntary public inspection and publication, which can be seen as “the date of public announcement, etc. under the relevant Acts and subordinate statutes,” but is set as the base date for relocation measures, and thus, it is not appropriate to invoke this case.

However, according to the records, since the purchaser's non-party 4, non-party 5, non-party 6, non-party 7, non-party 8, and non-party 9 falls under the resident owner at the time of July 9, 2003, which is the base date for the relocation measures, and thus, the court below's decision that recognized the defendant's obligation to return unjust enrichment to the purchaser against the plaintiff 1, 2, 3, 9, 12, 13, 15, and 16 who acquired the right to sell the land from the purchaser on the ground that they fall under the person subject to the relocation measures stipulated in the former Public Works Act and the decision of the court below that recognized the defendant's obligation to return unjust enrichment against the plaintiff 1,

B. Regarding ground of appeal No. 2

The lower court rejected the Defendant’s assertion that a road, which is a basic living facility, should be limited to at least 200 meters in length, and at least eight meters in width, and determined that the Defendant, including pedestrian roads, constitutes a basic living facility in accordance with the instant project plan.

Examining the record in light of the relevant legal principles, the above determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on

C. Regarding ground of appeal No. 3

The lower court determined that the Defendant’s calculation of the cost of creating the instant housing site should be made on the basis of the entire road newly installed within the instant project zone including the site area without compensation, on the ground that it is unreasonable for the Defendant to transfer the cost of installing the instant housing site solely on the ground that the person subject to relocation measures, who would have been able to use the road facilities installed in the king without the instant project, was determined to remove the previous facilities and to newly create them in the course of carrying out the instant project.

Examining the record in light of the relevant legal principles, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the calculation of site costs

D. Regarding ground of appeal No. 4

The lower court determined that the installation cost of the instant energy communications facilities constituted the installation cost of basic living facilities, on the grounds that, around 2003, when approving the development plan for the instant project, installation of underground facilities had been generally installed.

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, there were no errors by misapprehending the legal principles on the installation of undergroundization of power lines

2. As to the grounds of appeal by Plaintiffs 6, 10, and 11

Even if a project operator is included in a person subject to relocation measures beyond the scope of a person subject to relocation measures under Article 78(1) of the former Public Works Act and Article 40(3) of the Enforcement Decree of the former Public Works Act, the relocation measures provided to an unresident owner who is not a person subject to relocation measures as prescribed by the Act and subordinate statutes shall be deemed mutually advantageous, not as a duty under the Act and subordinate statutes. Thus, the project operator shall not be deemed to be obliged to install basic living facilities with respect to such unresident pursuant to Article 78(4) of the Public Works Act (see Supreme Court Decision 2012Da109811, Sept. 4, 2014).

Examining the records in light of the above legal principles, although there are no somewhat inappropriate points in the reasoning of the court below, the conclusion of the court below that the defendant did not have an obligation to install basic living facilities against the above plaintiffs is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the criteria for relocation measures under the former Public Works Act, misapprehending the legal principles on precedents

The Supreme Court precedents cited in the grounds of appeal are inappropriate to invoke the instant case, since they differ from the instant case.

3. As to the grounds of appeal by Plaintiffs 7, 8, and 14

The ground of appeal on this part is that the amount of unjust enrichment recognized to the above plaintiffs is unfair, and as seen earlier, the above plaintiffs do not constitute those subject to the relocation measures stipulated in the former Public Works Act, and thus, the defendant is not obligated to install basic living facilities, and thus, the defendant is not obligated to return unjust enrichment to the above plaintiffs. Thus,

4. As to the grounds of appeal by Plaintiffs 1, 2, 3, 4, 5, 9, 12, 13, 15, and 16

A. As to the calculation of land cost

(1) Regarding the total project cost

The lower court determined that, although the total project cost related to the creation of a housing site among the instant projects was increased from KRW 923,290,417,000 to KRW 923,290,417,000, among the instant projects, the lower court determined that the total project cost should be calculated based on the total project cost of KRW 915,312,215,006, based on the total project cost of KRW 915,312,215,06.

In light of the records, 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 calculation of site costs

(2) As to the area of the retention site

The lower court: (a) deemed the total area of the site, including the area of the retention site, as the total project area; and (b) calculated the site cost of the basic living facilities as the total area of KRW 108,137,605,914 (i) the total site cost of KRW 605,792,519,237 x the area of the installation of basic living facilities 159,122.4 square meters / the total site area of KRW 891,412 square meters, and less than

However, it is difficult to accept such judgment of the court below for the following reasons.

The retention site is the site that the project implementer has maintained the existing buildings or other facilities in the project zone because it is recognized as not impeding the development project even if the project implementer fails to relocate or remove them, and is not included in the target of free acquisition for the installation of public facilities, and the project implementer is not actually implementing the public project. Thus, in calculating the site cost, the area of the retention site should be excluded from the total project area, unless there are special circumstances.

Nevertheless, the lower court’s determination, which calculated the basic cost of living facilities by including the area of the retention site in the total project area, is erroneous by misapprehending the legal doctrine on the transfer price of the basic living facilities site cost, etc., thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

B. As to the cost of installing main roads

The lower court determined that the construction cost of the instant main road was not included in the construction cost of basic living facilities, on the grounds that the instant main road is for the construction cost of roads installed outside the instant project area, such as roads connecting the instant project area to the Olympic Games or the Goduk Housing Complex, etc.

Examining the record in light of the relevant legal principles, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the cost

5. Conclusion

Therefore, the part of the judgment of the court below against plaintiffs 4, 5, 1, 2, 3, 9, 12, 13, 15, and 16 against the plaintiffs, 7, 8, and 14 shall be reversed, and the part against the defendant against the plaintiffs, 6, 7, 8, 10, and 14 shall be remanded to the court below for further proceedings consistent with this Opinion. The appeals by plaintiffs 6, 7, 8, 10, 11, and 14, and all appeals by plaintiffs 1, 2, 3, 9, 12, 13, 15, and 16 shall be dismissed, and the costs of appeal by plaintiffs 6, 10, and 11 shall be borne by the above plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)