[1] Where the imposition of development charges is revoked, the subject to whom unjust enrichment for the erroneous payment is attributed

[2] Where the imposition of development charges is revoked, the scope of the obligation to return unjust enrichment for the erroneous payment

[3] Where the imposition of development charges is revoked, the nature of legal proceedings seeking the return of overpaid or erroneously paid amount as unjust enrichment

[1] The State shall collect the development gains from the area where the project subject to the imposition of the development charges is implemented under Article 5 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), and the right to impose and collect the development charges belongs to the Minister of Construction and Transportation (Article 14). However, the Minister of Construction and Transportation may delegate the right to impose and collect the development charges to the head of a Si/Gun/Gu under the conditions as prescribed by the Presidential Decree. Thus, where the head of the Gu imposed the development charges pursuant to Article 21 (1) 1 of the Enforcement Decree of the same Act, which is the delegated provision, the imposition and collection is merely the performance of state affairs, and thus, even if the local government collects the charges, it is not necessary for the State to gain the profits, but it does not belong to the local government to the amount equivalent to 50% of the development charges collected under Article 4 (1) of the same Act.

[2] If the imposition of development charges is revoked, the right to claim the return of unjust enrichment against the erroneous payment is finalized at the time when the obligation of development charges is extinguished due to revocation of the imposition of development charges, and it is not generated only by Article 17(3) of the Enforcement Decree of the Restitution of Development Gains Act, and the collector is liable to pay the amount received as a malicious beneficiary at a statutory interest rate of five percent per annum

[3] If the imposition of development charges is revoked, the legal relationship about the return of unjust enrichment after the cancellation is merely a civil relationship, and it cannot be viewed as a relationship to comply with administrative litigation procedures.

[1] Articles 3(1), 4(1), and 14 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), Article 21(1) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), Article 741 of the Civil Act / [2] Article 17(3) of the Enforcement Decree of the Restitution of Development Gains Act, Article 741(2) of the Addenda of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 25, 1992), Articles 741, 748(2), and 749(2) of the Civil Act / [3] Article 741 of the Civil Act, Article 3 of the Administrative Litigation Act

[2] [3] Supreme Court en banc Decision 88Nu6436 delivered on June 15, 1989 (Gong1989, 1096) Supreme Court Decision 88Nu6610 delivered on February 13, 1990 (Gong1990, 679) / [2] Supreme Court Decision 91Da32053 delivered on March 31, 1992 (Gong1992, 1406), Supreme Court Decision 94Da2800 delivered on November 11, 1994 (Gong194Ha, 3266), Supreme Court Decision 94Da16045 delivered on September 15, 195 (Gong195Ha, 363) / [3] Supreme Court Decision 91Da3205 delivered on April 195, 199 (Gong195Ha, 195363) / [2] Supreme Court Decision 94Da196598 delivered on September 195, 195, 19996

Seoul Special Metropolitan City Urban Development Corporation (Attorney Kim Jong-young, Counsel for plaintiff-appellee)

Mapo-gu Seoul Metropolitan Government

Seoul High Court Decision 94Na14133 delivered on September 16, 1994

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. According to the reasoning of the judgment of the court below, the court below ordered the plaintiff to pay the above amount of KRW 341,40,000 per annum from May 31, 1989 to KRW 30,000 per annum from KRW 97,00,00,000, KRW 97,000 per annum 9,000 per annum from KRW 97,000,00,000,000 per annum 97,000,000,000 per annum 97,000,000,000 won per annum 97,000,000,000,000 won per annum 97,000,000,00 won per annum 97,000,000,000,000 won per annum 97,00,000,000 won per annum 97,00,000,00.

2. Plaintiff’s ground of appeal

The State shall collect the development gains from the area where the project subject to the imposition of the development charges under Article 5 of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter the same shall apply) as the development charges (Article 3(1) of the Act). The right to impose and collect the development charges belongs to the Minister of Construction and Transportation (Article 14 of the Act). However, the Minister of Construction and Transportation may delegate the right to impose and collect the development charges to the head of a Si/Gun/Gu under the conditions as prescribed by the Presidential Decree. Accordingly, the head of the Defendant head issued the disposition imposing the development charges of this case pursuant to Article 21(1)1 of the Enforcement Decree of the Act, which is the delegated provision. Accordingly, even if the Defendant collected the charges from the Plaintiff merely because the imposition and collection of the charges are conducted by the State affairs under delegation, it shall be deemed that the State gains profits in principle, but the Defendant does not gain such profits, and it shall be deemed that the land belongs to the local government.

The judgment of the court below to the same purport is erroneous in the misapprehension of legal principles as to relevant statutes, which affected the conclusion of the judgment. The plaintiff's ground for appeal cannot be accepted

3. As to the Defendant’s ground of appeal

The plaintiff's right to claim the return of unjust enrichment is confirmed at the time when the obligation of development charges is extinguished due to the cancellation of the disposition imposing development charges, and it does not arise only under Article 17 (3) of the Enforcement Decree of the Act (see Supreme Court en banc Decision 88Nu6436 delivered on June 15, 1989). The defendant is responsible for paying legal interest at the rate of five percent per annum under the Civil Act with respect to the amount received as a malicious beneficiary, and it does not require the rejection of the plaintiff's claim on the ground that Article 17 (3) of the Enforcement Decree of the Act does not apply to this case pursuant to Article 17 (2) of the Addenda

In addition, as long as the imposition of development charges is revoked, the legal relationship on the return of overpaid or erroneously paid amount as unjust gains after the revocation is merely a civil relationship, and it cannot be viewed as a relationship that must follow the administrative litigation procedure (see Supreme Court Order 90f2 dated February 6, 1991). Since the lower court did not err in violating the exclusive jurisdiction, this part of the grounds for appeal cannot be accepted.

3. Therefore, all appeals by the plaintiff and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)