[1] Whether expenses, such as charges for facilities such as roads, etc. installed outside a public works zone, are included in the cost of establishing basic living facilities under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative in principle)

[2] Whether the charges for metropolitan transport facilities under Article 11 of the former Special Act on the Management of Metropolitan Transport in Metropolitan Areas constitute the installation costs of basic living facilities to be provided to a person subject to relocation measures as a basis for living (negative)

[3] In a case where a development project operator calculates the metropolitan transport facility charges actually paid during the process of creating a housing site and constructing a house and includes the amount equivalent to the above charges in the sales contract concluded with the person subject to relocation measures as a result of determining the sales price, whether the development project operator makes unjust enrichment (negative in principle)

[1] It is difficult to view that the cost of installation of facilities outside a public works zone as a matter of course constitutes the cost of “basic living facilities according to the relevant regional conditions” as stipulated in 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 “the Act”). The cost of installation of basic living facilities, such as roads, etc. outside a public works zone, is not included in the cost of installation of basic living facilities, and thus would result in a violation of equity in relation to the general buyer of the housing site or housing. Moreover, under Article 41-2(1) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665, Oct. 17, 2007; hereinafter “the Act”), as the cost of installation of basic living facilities, such as the cost of installation of basic living facilities, such as roads and water supply facilities (including road facilities) and water supply facilities).

[2] Considering that Article 11 subparag. 1, the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “former Intercity Transport Act”), Article 11-4(1), the former part of Article 11-4(1), Article 2 subparag. 1, and Article 2 subparag. 2 of the former Framework Act on the Management of Intercity Transport in Metropolitan Areas (hereinafter “former Intercity Transport Act”) are required for the construction and improvement of intercity transport facilities in metropolitan areas, and the charges for intercity transport facilities only in metropolitan areas are imposed on the project operator for the cost of increasing the value of the housing sites and housing in metropolitan areas. Accordingly, the charges for intercity transport facilities cannot be deemed as falling under the cost of installing basic living facilities that should be provided to the person subject to relocation measures on the basis of life.

[3] Article 11-2(1)3 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8852 of Feb. 29, 2008) provides that no charges for intercity transport facilities shall be imposed on the construction of housing sites and housing construction projects in accordance with the implementation of relocation measures under Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, this provision provides that the Mayor/Do Governor, who is the imposing authority of charges for intercity transport facilities, shall not impose the charges for intercity transport facilities in order to reduce the burden of payment of the operator of the development project by preventing the imposition of charges for intercity transport facilities. In a case where the development project operator actually paid the charges for intercity transport facilities in the course of the construction of housing sites and the construction of housing, even if the purchaser includes the person subject to relocation measures, the charges actually paid shall not be deemed as a provision that exclude the charges for intercity transport facilities from the calculation of the charges for relocation measures and the charges for sale in lots, barring special circumstances.

[1] Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007); Article 41-2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 2145 of Apr. 21, 2009) / [2] Articles 2 subparag. 1 and 2, 11 subparag. 1, and 11-4(1) of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8852 of Feb. 29, 2008); Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007); Article 41-2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Intercity Transport in Metropolitan Areas / [3]

See Attached List of Plaintiffs (Law Firm Dump, Attorneys Lee Dong-young et al., Counsel for the plaintiff-appellant)

한국토지주택공사 (소송대리인 법무법인 윈앤윈 담당변호사 박석순 외 4인)

Seoul High Court Decision 2012Na23711 decided November 8, 2012

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

The grounds of appeal are examined.

1. According to Article 78 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Public Works Act”), a project operator shall either establish and implement relocation measures or pay resettlement funds to a person who is deprived of his/her base of livelihood as a result of the implementation of a public project (hereinafter “person subject to relocation measures”), as prescribed by Presidential Decree, for the purpose of providing residential buildings due to the implementation of a public project (hereinafter “person subject to relocation measures”), and the contents of relocation measures include basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities, and the cost necessary therefor shall be borne by a project operator (Article 78(4) of the former Public Works Act). Therefore, the project operator shall be deemed to have the duty to return to the project operator the basis for the installation of basic residential facilities under Article 78(4) of the former Public Works Act, including the installation cost of basic residential facilities under the Housing Act.

2. As to the share of the construction of roads around the area and the share of the establishment of a human body

Article 78(4) of the former Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects amended by Presidential Decree No. 20771, Apr. 17, 2008; “Basic living facilities at an ordinary level” under the main sentence of Article 78(4) of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects, which is amended by Presidential Decree No. 20771, does not constitute “basic living facilities according to the relevant local conditions” under the said provision. It is reasonable to view that the cost of installation of basic living facilities, such as roads (including street lamps and traffic signal apparatus), water supply and sewage treatment facilities (No. 2), electric facilities (No. 3), telecommunications facilities (No. 4), and daily facilities (no. 5) are included in “basic living facilities” under the said provision and Article 41-2(1) of the same Act, insofar as the cost of installation of basic living facilities outside a public works zone is not included in “basic living facilities” under the said provision.

The court below is just in light of the above legal principles and the above circumstances, etc., and did not err by misapprehending the legal principles on the cost of the basic living facilities, etc. as otherwise alleged in the ground of appeal, thereby affecting the conclusion of the judgment.

3. Regarding the portion of the contributions for metropolitan transportation facilities

A. Under the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Intercity Transport Act”), a person who implements a housing site development project under the Housing Site Development Promotion Act in a metropolitan area prescribed by Presidential Decree among metropolitan areas shall pay charges for intercity transport facilities to construct and improve intercity transport facilities (Article 11 subparagraph 1); and the charges for intercity transport facilities shall be imposed and collected by the Mayor/Do Governor of the area in which the project is implemented (former part of Article 11-4(1)). The term “metropolitan area” refers to the area prescribed by Presidential Decree among the areas in the Seoul Special Metropolitan City, Metropolitan Cities, and their cities under Article 2(1)1 of the Local Autonomy Act and the areas in the same traffic life zone as the cities (Article 2 subparagraph 1); the term “wide transport facilities” refers to the transport facilities covering two or more Special Metropolitan Cities, Metropolitan Cities, and Dos, which meet the requirements prescribed by Presidential Decree, such as urban or railroad facilities operated over two or over two or more cities.

In light of the relevant provisions of the former Metropolitan Transport Act including these provisions, the charges for metropolitan transport facilities only imposed in metropolitan areas are required for the construction and improvement of metropolitan transport facilities in metropolitan areas, and the expenses incurred in raising the value of the housing site and housing in metropolitan areas are imposed on the project operator by the Mayor/Do Governor. In view of the fact that those subject to relocation measures who are supplied with the housing site for migrants in metropolitan areas have profits from the construction and improvement of metropolitan transport facilities, the charges for metropolitan transport facilities cannot be deemed to constitute the installation costs of basic living facilities to be provided to those subject to relocation measures as a basis

B. Article 11-2(1)3 of the former Metropolitan Transport Act provides that no charges for metropolitan transport facilities shall be imposed on the creation of housing sites and housing construction projects in accordance with the implementation of relocation measures under Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, this provision provides that the Mayor/Do Governor, who is the authority imposing charges for metropolitan transport facilities, shall not impose the charges for metropolitan transport facilities on the land for the creation of housing sites and the construction of housing in accordance with the implementation of relocation measures, to reduce the burden of the operator of the development project’s liability to pay the charges for metropolitan transport facilities. In cases where the operator of the development project actually paid the charges for metropolitan transport facilities in the course of the creation of housing sites and the construction of housing, even if the number of buyers includes the person subject to relocation measures, the charges for metropolitan transport facilities actually disbursed

Therefore, even if an operator of a development project includes the amount equivalent to the charges for metropolitan transport facilities in the sale price entered into with a person subject to relocation measures according to the determination of the actual charges for metropolitan transport facilities and the sales price, barring special circumstances, such as the law or agreement to exclude it from the sale price, the portion equivalent to the charges for metropolitan transport facilities out of the sales price agreed under the sale contract cannot be deemed null and void. Thus, it cannot be deemed that the operator of a development project benefits in relation to the person subject to relocation measures

C. The lower court’s determination that the instant metropolitan transport facility charges under Article 11 of the former Metropolitan Transport Act are not included in the cost of creating basic living facilities is justifiable in light of the aforementioned legal principles, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal doctrine on the cost of installing basic living facilities, etc.,

4. 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.

[Attachment] List of Plaintiffs: omitted

Justices Kim Yong-deok (Presiding Justice)