[1] In a case where a project operator is deemed to have obtained approval of a housing construction project plan and the management agency fails to impose a fee for occupancy and use, whether the project operator can be deemed to have obtained unjust enrichment (negative in principle)

[2] The method of assessing the pertinent land value, which is the standard for calculating rent for the land which is the public general property

[1] Article 17 of the former Housing Act (amended by Act No. 8014 of Sep. 27, 2006), Article 40 (see current Article 38), Article 43 (see current Article 41), and Article 44 (see current Article 42) of the former Road Act (amended by Act No. 8976 of Mar. 21, 2008) / [2] Article 31 (1) and (2) 1 of the Enforcement Decree of the Public Property and Commodity Management Act

[2] Supreme Court en banc Decision 2011Da83431 Decided January 17, 2013 (Gong2013Sang, 329)

주식회사 쎄븐산업개발

Law Firm Asian et al. (Law Firm Asian, Attorneys Kim Jong-il et al., Counsel for the plaintiff-appellant)

Daegu Metropolitan City Suwon-gu (Law Firm Samil, Attorneys Lee Gyeong-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na17365 decided August 24, 2012

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Determination on the grounds of appeal regarding the payment of indemnity

Article 17 of the former Housing Act (amended by Act No. 8014 of Sep. 27, 2006; hereinafter “former Housing Act”) provides that a project implementer shall be deemed to have obtained permission to implement a road project and permission to occupy and use a road under the Road Act when he/she obtains approval for a housing construction project plan. Article 40 of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008; hereinafter “former Road Act”) provides that a person who has obtained permission to occupy and use a road from a road management agency shall be able to occupy and use a road for construction, reconstruction, alteration, or removal of structures, articles, or other facilities within a road zone or for other purposes. Therefore, in cases where a project implementer is deemed to have obtained permission to occupy and use a road after obtaining approval for a housing construction project plan, the project implementer shall have a legitimate right to occupy and use a road within

Meanwhile, Article 43 of the former Road Act provides that a road management agency may collect occupation and use fees from a person who occupies and uses a road with permission, and Article 44 of the former Road Act provides that a person who occupies and uses a road may be exempted from occupation and use fees if the occupation and use of the road upon permission meets certain requirements. In light of the above, even if the road management agency obtained permission for occupation and use from the road management agency, it cannot be deemed that the road management agency is obligated to pay occupation and use fees before imposing them with the occupation and use fees

Therefore, even if the project operator is deemed to have obtained approval of the housing construction project plan and the management agency is not obliged to pay the occupation and use fee, barring special circumstances, the project operator cannot be deemed to have obtained unjust enrichment without any legal grounds, even if the project operator is not obligated to pay the occupation and use fee.

In light of the facts and records acknowledged by the court below, on September 16, 2005, the Daegu Metropolitan City Mayor approved the housing construction project plan for the land in the Daegu Suwon-dong (Land Number 1 omitted). Under the approval conditions, the Plaintiff purchased the land in this case from Daegu Metropolitan City on June 10, 2008, and the land category of this case was changed to the site after the use of the administrative property (the disuse procedure is completed on September 1, 2006) and the Plaintiff received a report from the Defendant on the same day after receiving the report from the Defendant on the commencement of construction work on October 25, 2005, and obtained approval for the use inspection on June 25, 2008.

In light of the aforementioned facts in light of the legal principles as seen earlier, the Plaintiff, for whom the approval of the housing construction project plan was obtained and the permission to occupy and use the instant land is deemed to have been deemed to have been obtained unjust enrichment from the approval to the discontinuation of the instant land. This is more so in the instant case where the Plaintiff seeks the return of the amount calculated by deducting the amount equivalent to the rent amount for the instant land from the indemnity paid by the Plaintiff to the Defendant from October 25, 2005, which was the date the Plaintiff reported the commencement of construction works,

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles.

2. Determination on the grounds of appeal as to the payment of rent

Article 31(1) and 31(2)1 of the Enforcement Decree of the Public Property Management Act (amended by Presidential Decree No. 19227, Dec. 30, 2005; hereinafter the same shall apply), which is the basis for calculating rent for the land which is a public general property, provides that the value of the relevant land, which is the basis for calculating rent, shall be calculated by using a publicly notified “individual land price”. Thus, the value of the relevant land shall not be based on the status of changing the value of the relevant land, which is the basis for calculating rent for the land which is a public property, from the commencement of possession by the possessor of the leased land to his/her own cost and effort after the commencement of possession, rather than on the basis of the actual status of use at the time of commencement of possession by the possessor (see, e.g., Supreme Court en banc Decision 2011Da83431, Jan

In the same purport, the court below is just in holding that the appraisal of the value of the loan fee for the land of this case, which is a public property, should be based on considering the land category and use status at the time of commencement of possession, since the current status of the road at the time of commencement of possession changed the current status of the land by its own cost and effort after obtaining approval of the housing construction project plan, and there is no error of law such as

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)