(Attorney Kim Sung-hoon, Counsel for the defendant-appellant)

Non-permanent Housing Co., Ltd. (Law Firm Yang Hun-Ga et al., Counsel for the defendant-appellant)

November 9, 2016

Suwon District Court Decision 2012Gahap71623 Decided November 25, 2015

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below is revoked, and all the plaintiffs' claims corresponding to the above revocation are dismissed

The defendant shall pay to the plaintiffs 5% interest per annum to November 27, 2012 and to November 22, 2013, 5% interest per annum to each of the money stated in the "amount of unjust enrichment" column in the separate sheet No. 4, and to each of the money stated in the "amount of unjust enrichment" column in the separate sheet No. 4, from November 23, 2013 to December 28, 2016, 20% interest per annum from the next day to December 28, 2016 and 20% interest per annum from the next day to the day of complete payment.

2. All appeals filed by the plaintiffs as stated in the list of the plaintiffs and the remaining appeals filed by the defendants are dismissed.

3. Of the total costs of litigation, appraisal costs (including additional appraisal costs) shall be borne by the Defendant, and 70% of the costs excluding appraisal costs (including additional appraisal costs) shall be borne by the Plaintiffs, and the remainder 30% shall be borne by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from January 1, 2012 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

2. Purport of appeal

A. Attached 1 List of Plaintiffs

Of the judgment of the court of first instance, the part against the plaintiffs listed in the list of the plaintiffs who appealed in attached Form 1 shall be revoked. The defendant shall pay to the plaintiffs listed in the list of the plaintiffs who appealed in attached Form 1, 5% interest per annum from January 1, 2012 to the delivery date of a duplicate of the petition of appeal of this case, and 20% interest per annum from the next day to the full payment date.

B. Defendant

The part of the judgment of the court of first instance against the defendant shall be revoked, and all of the plaintiffs' claims corresponding to the above revocation shall be dismissed.

Ⅰ. Basic facts

1. Progressing the defendant's rental apartment construction project;

A. In relation to the Korea Land and Housing Corporation on September 26, 2001, the Defendant entered into a sales contract with the Korea Land and Housing Corporation with the content that the Defendant purchases at KRW 15,256,251,000,000,000 for a rental site of between 60,256,251,000 square meters and 85,000 square meters (hereinafter “instant site”). On November 19, 2002, the Defendant paid KRW 12,964,176,930, excluding 2,292,074,070, in advance, to the Korea Land and Housing Corporation as a sales price.

B. On October 23, 2002, the Defendant obtained approval for a housing construction project plan to build 13 rental apartments and auxiliary facilities, which are five years of lease period of 938 households on the ground of the instant site from the Dong Dualcheon City. On December 23, 2002, the Defendant commenced construction around December 2002.

C. After February 21, 2004, the Defendant obtained the approval of the modification of the housing construction project plan of this case by changing the building area, total floor area, building-to-land ratio, volume ratio, etc. in the initial project plan from the East Ducheon City. The summary of the supply area, etc. of the apartment of this case under the final approved housing construction project plan is as shown in the following square area table.

A tag included in the main sentence (e.g., a square size) / a square size (1) / a supply area (2) / a sum of other common areas (1) / a residential area (2) / a residential area for exclusive use by its occupant 23 square meters, 59.8404 18.068 7.0687.9092 17.086.97.0865 18.405 3386.3147 32 square meters 84.9842 84.842 10.84.732 24.2606.1392 2606.92 1301.932 2601.9325

2. Conclusion of a rental contract between the plaintiffs and the defendant and the plaintiffs' occupancy

A. On August 20, 2004, when the new construction work of the apartment of this case was in progress, the Defendant obtained the approval of the announcement of invitation of residents from the Dong Do 2004 market, and on August 23, 2004, the Defendant made the announcement of the invitation of residents on August 23, 2004, and around that time, the Plaintiff leased each of the instant apartment of 32 square-type 1 households to the Plaintiffs.

B. The defendant completed the construction of the apartment of this case around September 2004 and completed the inspection of the use of the apartment of this case on October 26, 2004, and the plaintiffs moved into the apartment of this case from October 28, 2004.

3. Conclusion of sales contracts and payment of sales price, etc.;

A. From among the instant apartment, the lessee of the 32th class apartment after the lapse of five years from the mandatory rental period of the instant apartment, filed an application for approval for the conversion of the unit-type apartment in the 32th class. The 200-cheon City set the unit-sale conversion price on October 28, 201 as stated in the “sale price” column in the attached Table 4 list after the appraisal of the unit-sale conversion, and approved the conversion of the unit-type apartment in the rental housing on November 18, 201, respectively.

B. From around that time to December 31, 201, the Plaintiffs, part of the lessees of the 32-year apartment complex among the instant apartment complex, concluded each sales contract with the Defendant regarding the instant apartment complex 32-class, which they leased, and paid the Defendant the money indicated in the “sale price” column in the attached Table 4 as the sales price.

【Ground of recognition】 Evidence No. 1, Evidence No. 4 through 8, Evidence No. 1 through 7, and the purport of the whole pleadings

Ⅱ Summary of the plaintiffs' assertion

In calculating the pre-sale conversion price of the apartment of this case, the Defendant calculated the price in accordance with the standards prescribed by relevant Acts and subordinate statutes, such as the Rental Housing Act, but calculated the price in excess of the standard prescribed by the relevant Acts and subordinate statutes at the time of entering into each unit sale contract with the Plaintiffs. As such, the part exceeding

Therefore, the defendant is obligated to return the money paid and damages for delay in excess of the legitimate pre-sale conversion price to the plaintiffs as unjust enrichment.

Ⅲ. Summary of a claim for restitution of unjust enrichment

1. Relevant statutes;

Attached Form 5 is as shown in the relevant statutes.

2. Mandatory regulations on standards for calculating pre-sale conversion conversion conversion price;

Although the former Rental Housing Act (amended by Act No. 11242, Jan. 26, 2012) prohibits a rental business operator from arbitrarily setting a pre-sale conversion price and allows a rental business operator to sell a rental house on a reasonable pre-sale conversion price, if interpreted that the pre-sale conversion price is not binding on the above pre-sale conversion price basis, it would seriously undermine the legislative intent of the relevant statutes, such as the former Rental Housing Act, and may de facto de facto de facto de facto de facto de facto de facto de facto change the rental housing system as a means of economic interest of rental business operators. Therefore, in order to achieve the legislative purpose of the former Rental Housing Act, the provisions of relevant statutes, such as the former Rental Housing Act, should be deemed to constitute a mandatory law, and the pre-sale conversion price concluded based on the pre-sale conversion price calculated based on the standard prescribed under the relevant provisions should be deemed null and void within the extent exceeding such standard (see, e.g., Supreme Court en banc Decision 2009Da97079, Apr. 211)

Therefore, if the pre-sale conversion price calculated by the Defendant exceeds the legitimate pre-sale conversion price calculated pursuant to the relevant laws, such as the former Rental Housing Act, the sales contract of this case is null and void to the extent exceeding the above limit. Therefore, the Defendant is obliged to return the excess

3. Judgment on the defendant's assertion

A. The assertion

The pre-sale conversion price is not the defendant, but the Dong 2cheon City decided to calculate the housing price at the time of invitation of occupants based on the construction costs and housing site expenses, and accordingly, to grant approval for conversion for sale in lots pursuant to the relevant laws, such as the former Rental Housing Act. Of the above disposition of approval for conversion for sale in lots, the part on the determination of the pre-sale conversion price among the above disposition of approval for sale in lots constitutes an administrative act of sole judicial formation. Thus, even if there were defects as alleged by the plaintiff, the above disposition of approval for conversion for sale in lots can not be deemed as null and void as it constitutes a serious and obvious case. Thus, each of the above contracts for sale in lots

Therefore, as long as the aforementioned disposition of approval for conversion for sale in lots is maintained, the Plaintiffs cannot seek a return of unjust enrichment against the Defendant.

B. Determination

In light of the following circumstances, it is reasonable to view that the Plaintiffs may dispute the validity of each contract for sale in this case even if the approval of sale in lots has not been revoked in light of the provisions of the relevant Acts and subordinate statutes comprehensively considering the purport of all pleadings. Therefore, the Defendant’s above assertion is without merit.

(1) According to Article 9(1) [Attachment 1] of the former Enforcement Rule of the Rental Housing Act (hereinafter “Attachment Table 1”), an approving authority for tenant invitation shall calculate the housing price at the time of the initial tenant invitation based on the building cost and housing site cost. However, this provision does not include only one element in determining the amount of sales price in a sales contract between the plaintiffs and the defendant, but also does not have the authority to determine the sales price (Article 41(3)6 of the former Rental Housing Act, which is the approving authority for tenant invitation, so that a person who violates the provisions for preferential sale of constructed rental housing under Article 21 of the former Rental Housing Act can be punished (Article 41(3)6 of the former Rental Housing Act). The above provision also seems to be premised on the premise that it is possible for rental business operators and lessees to enter into a sales contract at a price different from the pre-sale price determined by the approving authority for tenant invitation.

Even if the approval disposition on the conversion to sale in lots is recognized as a disposition, the above approval disposition is an approval on the conversion to sale in lots by the rental business operator, and it has the effect of approving the conversion to sale in lots by the rental business operator. Therefore, the validity of the approval on conversion to sale in lots and the existence of the judicial effect of each

Article 22(1) of the former Rental Housing Act (amended by Presidential Decree No. 2010, Jan. 1, 2011) provides that the pre-sale price shall be calculated and the pre-sale price shall be determined and the pre-sale price shall be determined and the pre-sale price shall be determined.

x) The obligation to pay the purchase price for the plaintiffs to the defendant is only caused by each sales contract between the plaintiffs and the defendant, and it is not caused by the administrative disposition of the same 200 market.

4. Sub-committee

Even if the Plaintiffs and the Defendant concluded a sales contract with the determination of the sales price based on the pre-sale conversion price calculated and approved by the Dong 2cheon City, if the sales price exceeds the pre-sale conversion price pursuant to the relevant Acts and subordinate statutes, the sales contract’s effect cannot be recognized as to the excess portion. Thus, if the Plaintiffs paid the pre-sale price exceeding the pre-sale conversion price pursuant to the relevant Acts and subordinate statutes exists, the Plaintiffs may seek return of

IV. Determination criteria for determining whether a claim for return of unjust enrichment has occurred

1. Method of calculating a legitimate pre-sale conversion price (2)

(a) Ground Provisions;

Article 21(1) and (10) of the former Rental Housing Act (amended by Act No. 11242, Jan. 26, 2012; hereinafter the same shall apply), Article 23(8) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 23584, Feb. 2, 2012; hereinafter the same shall apply), and Article 9(1) [Attachment Table 1] of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 441, Feb. 3, 2012; hereinafter the same shall apply), on the pre-sale price of the publicly constructed rental house, the mandatory rental period of which is five years, shall be the arithmetic mean of the appraised value of the construction cost and the appraised value of the relevant house calculated based on the construction cost and housing site cost of the rental house (hereinafter referred to as “calculated price”).

(b) the formula;

If the formula for calculating the legitimate pre-sale conversion price under the above provision is arranged, it shall be as follows:

○ Statutory pre-sale conversion

[Construction Costs + Appraisal Amount] ¡À 2] Where the upper limit price is bit (construction costs + Appraisal Amount) ¡À2]

or

[(건설원가 + 감정평가금액) ÷ 2] ≥ 상한가격인 경우 상한가격

○ Construction Costs

= The housing price at the time of the first recruitment of occupants + Self-interest - Depreciation costs

The actual tax rate of housing price at the time of initial recruitment of occupants = Building cost + housing site cost.

The actual accounts of each own interest = (Housing price at the time of initial recruitment of occupants - Loans from the National Housing Fund - deposit prior to mutual conversion of deposits and rents) ¡¿ interest rate ¡¿ lease period.

The actual depreciation cost = Building cost ¡À 40 years of service life of reinforced concrete building ¡À lease period

○ upper limit price

= Calculation Price - Depreciation Costs during the lease period

The actual tax calculation price

= Construction costs at the time of conversion for sale in lots + Construction cost at the time of announcement of invitation of residents + Interest on housing site cost

· Interest on housing site expenses = Housing site expenses 】 interest rate 】 rental period

2. Calculation method of the building cost which is the component of the construction cost;

A. Whether it is an actual construction cost or a standard construction cost

(1) argument

The plaintiffs asserted that the construction cost, which is the basis for calculating the pre-sale conversion price of the apartment of this case, is the actual input cost within the scope of the standard construction cost.

As to this, the Defendant asserts that the provision of the attached Table of this case can not be interpreted as stipulating the concept of "actual construction cost" when comprehensively considering the literature interpretation of the provisions of this case, the provision of the basic construction cost of housing for sale, the system of the construction cost of housing for sale, and the fact that the phrase of "actual construction cost" is used for the actual construction cost of housing for sale, and that the provision of the attached Table of this case can not be interpreted as stipulating the concept of "actual construction cost" as "actual construction cost"; ② since the ordinary rental housing construction project implemented by the pre-sale system is transferred at the time of initial recruitment of occupants, the actual construction cost cannot be grasped or anticipated; and the concept of actual construction cost itself is ambiguous; ③ The purpose of legislation of the attached Table of this case is to minimize disputes arising in cases where the concept of construction cost should be calculated as "actual construction cost" with the ambiguous concept of "actual construction cost", the former Enforcement Rule of the Rental Housing Act should be calculated within the scope of the standard construction cost at the time of initial recruitment of occupants.

Shed Judgment

㈎ 별지5 관련법령 기재의 각 규정들에 변론 전체의 취지를 종합하면 다음과 같은 사정들이 인정된다.

① In light of the language and text of each provision under Paragraph (1)(b), Paragraph (2)(a)(i) and Paragraph (2)(d)(i) of the attached Table of this case, the standard building cost refers to the upper limit of the construction cost reflected in the pre-sale conversion price, and is clearly distinguishable from the construction cost, and the construction cost, which is the basis for calculating the pre-sale conversion price, is clearly based on the construction cost, not the standard construction cost.

② Even if a person with the authority to approve the invitation of occupants who calculated the housing price at the time of the initial recruitment of occupants could only calculate the housing price by estimating the construction cost to be spent until the completion of the recruitment of occupants since the construction cost has not been determined at the time of the initial recruitment of occupants where a rental housing is not completed, it is an inevitable consequence because construction cost cannot be determined due to the circumstances in which the recruitment of occupants was conducted before the completion of the rental housing. Accordingly, even in determining the conversion price at the time of conversion for sale in lots where actual construction cost can be determined after the completion of the rental housing, it cannot be said that the determination of the conversion price for sale in lots applied at the time of the announcement of occupants recruitment should be based on the estimation of the construction cost applied at the time of the announcement of the recruitment of occupants. In addition, it is impossible to say that the definition of the construction cost is unclear or that it is impossible to calculate the actual construction cost.

③ The legislative intent of the instant table is not only to minimize disputes arising from the computation of the sale price by ensuring the transparency and objectivity of the calculation of the sale price, but also to appropriately reflect interests between the rental business operator and the lessee, to calculate the sale price, and to achieve the purpose of promoting the construction of rental housing business and stabilizing residential life. Considering these factors comprehensively, it is difficult to deem that it goes against the legislative intent of the said provision to interpret the “construction cost” as the “construction cost actually invested by the rental business operator while constructing the relevant apartment,” which is an element of calculating the construction cost.

④ Even if the Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 113 on July 16, 2014) provides that “the construction cost at the time of the first public announcement of invitation of occupants shall be the construction cost, but the upper limit price shall be the construction cost” with respect to the construction cost, which is an element for calculating the construction cost, it cannot be readily concluded that the amendment of the above provision is based on the premise that the construction cost should be interpreted as the amended provision of the construction cost prior to the amendment, in light of the fact that Article 4 of the Addenda of the above Enforcement Rule provides that “Where the public announcement of invitation of occupants was obtained at the time of the enforcement of these Rules, or the invitation of occupants was made, notwithstanding the amended provisions of Article 5 and attached Tables

(5) Lease contracts and sales contract are different from their nature and contents, and there is no ground to view that the calculation of pre-sale conversion price should be the same as the standard rental deposit.

㈏ 위 ㈎항에서 인정한 각 사정들을 종합하여 볼 때, 분양전환가격 산정의 기초가 되는 건축비는 특별한 사정이 없으면 표준건축비의 범위 내에서 실제로 투입된 건축비를 의미하고 표준건축비를 의미하는 것은 아니라고 해석함이 상당하므로( 대법원 2011. 4. 21. 선고 2009다97079 전원합의체 판결 등 참조), 이 사건에서도 정당한 분양전환가격 산정의 기초가 되는 건축비는 특별한 사정이 없는 한 표준건축비의 범위 내에서 실제로 투입된 건축비를 의미한다고 할 것이다.

(b) Methods of calculating the actual construction cost (whether it is based on the tax base or the result of appraisal);

(1) argument

The plaintiffs asserted that the acquisition tax base reported by the defendant with respect to the apartment of this case should be considered as the actual construction cost unless there is any data on construction implementation, which serves as the basis for calculating the actual construction cost of the apartment of this case

In this regard, the defendant asserts that the tax base under the Local Tax Act is a concept distinct from the actual construction cost, and the actual construction cost should be calculated based on the appraisal result in the current state where the construction-related data are destroyed and lost due to the lapse of the preservation period.

Shed Judgment

The term "actual construction cost" means all direct and indirect costs invested by a rental business operator for the construction of rental housing (see Supreme Court Decision 2014Da17206, Dec. 23, 2015, etc.).

The method for which the Defendant calculated the most accurately whether the direct and indirect expenses actually invested in order to construct the instant apartment is the cost of construction of the instant apartment, is calculated by submitting all the evidentiary materials related to the costs incurred by the Defendant in carrying out the construction of the instant apartment (such as construction contract and purchase contract for materials and purchase contract for materials, etc., and the detailed expenses of the expenses). In light of the fact that the instant apartment was filed on November 13, 2012 when eight years have passed from September 2004 when the instant apartment was completed, the Defendant appears not to keep all the above materials related to the construction of the instant apartment, and it is practically impossible for the Defendant to examine the actual construction cost by submitting the above materials.

As long as the construction cost actually invested cannot be calculated based on the actual construction cost, the actual construction cost should be calculated based on the estimation of the amount close to the actual construction cost and the cost incurred in the construction of the apartment of this case.

① Under the Local Tax Act, the construction cost and expenses incidental thereto are deemed to be the total amount of construction cost and expenses (see, e.g., Supreme Court Decision 2007Du17373, Feb. 11, 2010). The construction cost and construction cost in the tax base following the construction of a new apartment under the Local Tax Act are separate concepts from those subject to regulation, and there is no ground to deem that the items included in the “construction cost and expenses incidental thereto” in the tax base due to the construction of a new apartment are the same items as the “construction cost”, which are elements to calculate the pre-sale conversion price under the former Rental Housing Act (see, e.g., Supreme Court Decision 2007Du17373, Feb. 11, 2010). The tax base of acquisition tax is not included in the tax base of acquisition tax, and the actual amount of acquisition tax is not included in the “construction cost and expenses incidental thereto” (see, e.g., Supreme Court Decision 2007Du1737373, etc.).

Meanwhile, although the Defendant asserts that construction costs exceeding the tax base amount of acquisition tax exist and did not submit materials, it would be against equity in light of the Supreme Court en banc Decision 2009Da97079 Decided April 21, 201 that construction costs, which serve as the basis for the calculation of construction costs, should be deemed as “construction costs actually invested,” and that prior to April 21, 201, the Defendant appears to have no need to keep them in preparation for disputes that may arise after all the materials related to “construction costs actually invested,” the Defendant’s burden of all the Defendant on the ground that the Defendant did not submit the materials under the Defendant’s control area.

However, according to the appraisal result of Nonparty 3 and the appraisal and supplementary commission result of the court of first instance against Nonparty 3 of the appraiser non-party 3, the appraiser is aware of the materials and quantity invested in each construction based on the approval drawing for use of the apartment of this case, calculated the cost by applying the unit price in the price information sheet prepared by the Ministry of Land, Transport and Maritime Affairs at the time of the public announcement for the invitation of occupants of the apartment of this case, and appraised the amount of the construction cost presumed to have been actually spent for the construction of the apartment of this case by applying the average bid price rate of the apartment of this case for 3 years at the time of the public announcement for the invitation of occupants of the apartment of this case. Thus, the appraisal result of this case was conducted by the method of ratification of the actual cost actually invested in the construction of the apartment of this case, and there is no other evidence to recognize that there is a problem in the calculation method of the construction cost of the apartment of this case. Thus, it is reasonable to deem that the most appropriate method can be confirmed based on the appraisal result of this case.

Therefore, in the case of this case, it is reasonable to calculate the actual cost of construction based on the appraisal results of this case.

3. Calculation method of housing site expenses;

A. The assertion

The plaintiffs asserts that only the amount actually paid by the defendant to the housing site supplier should be regarded as the housing site cost according to the advance payment, not the purchase price under the sales contract of the instant housing site.

In this regard, the defendant asserts that the housing site cost should be calculated on the basis of the purchase price under the sales contract before the advance payment and the advance payment discount rate are reflected.

B. Determination

In the instant attached Table 2(d)(A), regarding the standards for calculating the cost of a housing site, which is one of the constituent elements of the pre-sale conversion price, the supply price thereof is stipulated as “in the case of a housing site developed and supplied by a public institution under the Act on the Management of Public Institutions, including the State, local governments, or the Korea Land and Housing Corporation, pursuant to the Housing Site Development Promotion Act and other Acts (hereinafter “public housing site”). Here, “supply price” refers to the price of a housing site actually supplied by a rental business operator from a housing site supplier to the extent that it does not violate the standards for the supply price of a housing site prescribed by relevant Acts and subordinate statutes, such as the Housing Site Development Promotion Act, Enforcement Decree of the Housing Site Development Promotion Act, and guidelines for processing housing site development business (hereinafter “related Acts and subordinate statutes, such as the Housing Site Development Promotion Act”).

In addition, where part or all of the cost of a housing site, such as advance payment and advance payment, in order to be supplied with a housing site which is a public housing site, is determined by the item that can be added to the cost of a public housing site. In addition, where the whole or part of the cost of a housing site, such as advance payment and advance payment, is made from the date of advance payment to the date on which six months elapse from the date of advance payment, necessary expenses, such as interest on the period from the date of advance payment, tax and public dues and registration fees, etc. of the Republic of Korea, and other expenses that can prove that the period for the advance payment is related to the housing site. The interest rate applicable to the above advance payment is based on the "average interest rate for one-year term deposits at a financial institution under the Banking Act at the time of the first public announcement of tenant recruitment." This is reasonable to deem that the term "supply price" in attached Table 1(2)(a) of the said Table provides for the period of advance payment, and the period under a certain interest rate.

Therefore, the supply price of housing sites should be calculated on the basis of the purchase price actually paid by the rental business operator after receiving advance payment.

4. The method of calculating construction costs, which are the component of the calculation price;

The instant attached Table 1(b) provides that “If the mandatory rental period is five years, the pre-sale conversion price shall be the arithmetic mean of the construction cost and the appraised value, but the pre-sale price shall not exceed the amount calculated by deducting the depreciation costs during the rental period from the housing price calculated on the basis of the construction cost of rental housing and housing site cost.” Accordingly, the instant attached Table 2 provides a specific calculation method for each item, which is the basis for the pre-sale price calculation. The instant attached Table 2 provides that “Calculation price” shall be determined: (a) the construction cost, item (b) the construction cost, and appraisal cost shall be determined; (b) the “calculated price” under item (c) shall be the “construction cost and housing site cost, which serves as the basis for the calculation of the rental housing price at the time of sale in lots + the housing site cost at the time of announcement of announcement; and (c) the table “construction cost” under item (a) of the same subparagraph shall be included in the standard construction cost, and the construction cost shall be included in the scope of the construction cost and the standard construction cost.

In light of the structure and language of the aforementioned relevant provisions, and the purport of separately setting the upper limit on the basis of setting the criteria for calculating the pre-sale conversion price of rental housing under subparagraph 1 (b) of the attached Table, it is reasonable to deem that the construction cost reflected in the “calculated price” for calculating the upper limit of the pre-sale conversion price under subparagraph 2 (c) of the attached Table of this case refers to the “building cost” which serves as the basis for calculating the rental housing price under subparagraph 2 (d) (i) of the same paragraph. Ultimately, the term “construction cost at the time of sale conversion” which serves as the basis for the “calculated price” refers to the “building cost” calculated based on the “standard construction cost at the time of sale conversion” under subparagraph 1 (d) (i) of the same paragraph (see, e.g., Supreme Court Decision 2013Da20390

V. Whether the right to claim restitution of unjust enrichment has arisen and scope

1. The arithmetic mean of the cost of construction and the appraised value; and

(a) Construction cost = the housing price at the time of recruitment of occupants + self-fund interest - Depreciation cost;

(1) The value of housing at the time of initial recruitment of occupants = Construction cost + Housing site cost

㈎ 건축비

(1) The actual building cost.

According to the appraisal result of Nonparty 3 of the court of the first instance, according to the result of Nonparty 3’s entrustment of appraisal and supplementation to Nonparty 3 of the court of the first instance, the actual construction cost which deducts value-added tax and profit from among the expenses incurred in constructing the whole apartment of this case can be acknowledged as constituting 72,837,90,000.

In addition, according to the size table of the above I’s 32 square apartment among the apartment of this case, the aggregate of the building area of 600 households of 32 square apartment of this case is 79,159.5 square meters [=32 square meters of the building area of 105.793 square meters + 26.1392 square meters of other public areas + 600 households]. Of the apartment of this case, the aggregate of the building area of 23 square apartment of this case among the apartment of this case is 32,54.3686 square meters [23 square meters = 96.3147 square meters of the building area of the supplied apartment of 23 square meters + 77.9092 square meters of other public areas + 18.405 square meters of other public areas] The building area of this case is 338 square meters of the entire apartment of this case (i.e., 111,786 square meters of the building area of this case.

Therefore, the expenses required for constructing 60 households among the apartment of this case 32 square-type apartment of this case are KRW 51,612,382,076 [the total construction expenses of this case = KRW 72,837,90,000 x (the total building area of the 32 square-type apartment of this case 79,159.5 square-type apartment of this case / the total building area of the 32 square-type apartment of this case 11,713.86 m2), and the construction expenses per 32 square-type apartment of this case are KRW 86,020,636 (=51,612,382,076 ± 600 households). The construction expenses per 32 square-type apartment of this case are KRW 86,020,636.

(2) Standard construction cost at the time of recruiting occupants of the apartment of this case

The reasons for calculation

Since the upper limit price of construction costs is determined as the standard price separately publicly notified by the Minister of Land, Transport and Maritime Affairs in attached Table 2(d)(A) of this case, if the actual construction cost stated in the above paragraph (1) exceeds the standard construction cost of the apartment of this case at the time of recruiting occupants, the standard construction cost of the apartment of this case at the

(C) Method of calculating the

Calculation of Housing Supply Area for the Corporation

The standard construction cost for the old publicly constructed rental house (No. 2002-270 of the Ministry of Construction and Transportation, Dec. 2, 2002), which was in force at the time of the public announcement of the recruitment of occupants of the apartment of this case, does not separately stipulate the specific meaning of the "housing supply area" applicable to the upper limit of construction cost per square meter of the publicly constructed

However, according to Articles 2 subparag. 10 and 8(5) of the former Rules on Housing Supply (amended by Presidential Decree No. 361 of Jun. 27, 2003), and Article 119(1) subparag. 3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18146 of Nov. 29, 2003), “housing supply area” means the area of a house supplied by a project proprietor, which is the area of a building supplied by a project proprietor, which is the horizontal plane projection area of the part enclosed by the center line of the wall, column, or other similar division, which is the floor area of the building or part of the building supplied by the project proprietor, and is divided into “exclusive residential area”, “residential public area (public area on the ground of multi-family housing, such as stairs, corridor, and pipe), “other public area” (excluding the area for common use, underground floors, management offices, the elderly, etc.).

Meanwhile, according to the statement in Eul evidence No. 12, the maximum construction cost per square meter of the publicly constructed rental house in the public notice of standard construction cost is related to the total expenses incurred in the construction of all facilities, such as residential facilities, guard rooms, management office and welfare facilities (excluding underground parking lots) that constitute a rental housing complex, and is excluded from the expenses incurred in the construction of underground parking lots.

In addition, Article 3-3(1) [Attachment 1] subparag. 2(d)(b) of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Construction and Transportation No. 330 of September 11, 2002), which provides the basis for the public notice of standard construction cost, sets the additional items for standard construction cost as the upper limit price for construction cost under subparagraph (a)(a) of the same item. As to the addition of the underground floor area under the same item(1)(d), with regard to the addition of the underground floor area under the same item(d), “10/100 of standard construction cost for up to 1/100 of the total floor area of the underground floor (including the underground parking lot area) included in the public notice of invitation of occupants from the person who has the authority to approve the project plan, and with respect to the remaining parts, the amount equivalent to 80/100 of standard construction cost may be recognized as construction cost.”

Ultimately, it is reasonable to calculate the maximum construction cost per square meter of the standard construction cost by adding the construction cost to the construction cost for the underground floor area as provided in subparagraph 2 (d) (d) of attached Table 1 in the public announcement of the standard construction cost to the area of the entire ground floor, excluding the area of underground floor including underground parking lots, in the aggregate of the exclusive residential area, the common residential area, and other common residential areas (see, e.g., Supreme Court Decision 2013Da21193, Apr. 23, 2015).

Items to be added to the Republic of Korea

Article 3-3 [Attachment 1] (2) (d) through (f) of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Construction and Transportation No. 471 of September 22, 2005) provides that the items to be added to the standard building cost shall be as follows:

[Attachment 1] Paragraph (2) (d)

(d)approve 100 percent of the standard construction cost by up to 1/15 of the total floor area of the underground floor (including the area of underground parking lots) approved by the person authorized to approve the project plan including the first announcement of invitation of residents, and recognize as construction cost the amount equivalent to 80 percent of the standard construction cost for the remainder.

(e) A rental business operator may add the additional cost for housing construction to the standard construction cost due to the amendment of the statutes, ordinances, etc. related to the construction of rental housing.

(f) Other items added to the construction cost are:

1) In the case of a house constructed en bloc by a rental business operator, 5% of the standard construction cost in the case of a balcony shower

(ii)the cost of installing the facility duct excluded from the area for public use;

(iii)where two or more bathing rooms are installed in one household, the costs required therefor;

Results of calculation of damage;

According to the entries and the purport of the evidence No. 4, as follows: (a) apartment of this case 32 square meters; (b) residential area of 131.9325 square meters; and (c) underground area of 24.260 square meters; (d) apartment of this case 32 square meters is 107.665 square meters (=9325 square meters - 24.260 square meters); (e) the area of 1/15 of the ground floor among underground areas is 7.177 square meters (i.e., 107.665 square meters ± 155 square meters); (e) the remaining area excluding the area of 1/15 of the ground floor area of 20 square meters; (e) the additional area of apartment of 260 square meters or less; and (e) the installation cost of apartment of 320 square meters or less per apartment units at the time of the public announcement of 271 square meters or more; and (e) the installation cost of apartment units of this case 271381 square meters or more.

65,245,899 106,665m2 x 606,00 of the ground floor area excluding the underground parking lots, including underground parking lots, located within the main sentence x 65,245,89 m200 x 1/15 m2,349,686 m27m2 x 606,000 m2 x 8,284,407 17.083m2 x 606,00 m2 x 806,000 m2 x 806,000 m26,00 x 80 m262,294,294, 245, 898 x 5 m2,449-4, 1938,718,75 m27-7,75 m27, and 377.

③ Sub-committee

86,020,636 won per household of the apartment of this case, which was actually input in the apartment of this case, exceeds the standard building cost of 83,547,657 won per household of this case at the time of the invitation of occupants. Thus, the building cost for calculating the housing price at the time of the initial invitation of occupants of the apartment of this case is 83,547,657 won, which is the standard building cost at the time of the invitation of occupants of the apartment of this case.

㈏ 택지비

① Calculation of housing site cost of the entire apartment site of this case

The Defendant entered into a sales contract to purchase the instant site from the Korea Land and Housing Corporation on September 26, 2001 with KRW 15,256,251,00 and paid KRW 12,964,176,930, excluding the advance payment of KRW 2,292,074,070, Nov. 19, 2002, and paid the full amount of KRW 12,964,176,930, etc. as seen above. According to the evidence No. 8 and evidence No. 4, according to the facts stated in the evidence No. 42,51.70 square meters, the area of the instant apartment site is 41,009 square meters, excluding the instant apartment site among the instant apartment site with KRW 42,505,920,293 won (=12,964,176,930,930,41,412,700 square meters).

(2) An advance payment period.

The defendant paid in advance the full amount of the purchase price of the instant apartment site to the Korea Land and Housing Corporation on November 19, 2002, and the fact that the announcement date of the announcement of the apartment of this case was August 23, 2004 is as seen earlier, and according to the evidence No. 4, the fact that the first announcement date of the announcement of the recruitment of the apartment of this case was August 23, 2004, the first announcement date of the recruitment of the apartment of this case, which was the highest share of the household loan market at the time of August 23, 2004, can be recognized as 3.4%

Based on the above facts of recognition, if the advance payment period from November 19, 2002 to February 23, 2005, which was the date of advance payment of the purchase price for KRW 12,505,920,293 of the total apartment of this case, is calculated from November 19, 2002, the date of advance payment for KRW 12,505,920,293, the advance payment period to be added to the instant apartment of this case is KRW 964,566,213 (= KRW 12,505,920,9293 x week 3).

(3) Taxes and public charges.

According to Gap evidence No. 9, it can be acknowledged that the defendant paid the total amount of KRW 42,717,490 as acquisition tax, registration tax, and education tax of the entire site of this case. Thus, the defendant's expenses, such as acquisition tax, etc. paid for 41,009 square meters of the site area of the apartment of this case (=42,717,490 won x 41,009 square meters x 41,009 square meters x 42,511.70 square meters)

(4) Actions

Therefore, the housing site cost, which serves as the basis for the calculation of the legitimate construction cost of the apartment of this case, is 13,51,694,021 won (i.e., the supply price of 12,505,920,293 won + the advance payment period of 964,56,213 won + the tax and public charges of 41,207,515 won + the housing site cost per 32 square-type apartment of this case calculated accordingly, is 16,123,781 won [= the aggregate of the housing site cost of 32 square-type apartment of this case = 9,674,269,00 [the aggregate of the housing site cost of 13,511,694,021 won + (the aggregate of the housing site cost of 32 square-type apartment of this case 4), 50,90.519 square-type apartment of this case / 51,296]

㈐ 최초 입주자 모집 당시의 주택가격

The housing price at the time of the first recruitment of occupants per 32 square-type apartment of this case is KRW 9,671,438 (i.e., the construction cost per 32 square-type apartment of this case + KRW 83,547,657 per 32 square-type apartment of this case + KRW 16,123,781 per 32 square-type apartment of this case).

Doz. Interest on self-funds

㈎ 계산식

(Housing price at the time of recruiting occupants - Loans of the National Housing Fund - deposit prior to mutual conversion of rental deposits and rents) ¡¿ interest rate ¡¿ rental period.

㈏ 구체적인 계산결과

According to the purport of Eul evidence No. 4 and the whole argument, it can be acknowledged that the loan from the National Housing Fund for the 32-year apartment house of this case was 41,00,000 won, the lease deposit was 41,00,000 won, and the lease deposit was 'rental deposit' as listed below for each of the following periods, and the interest rate for the one-year term deposit with the highest market share in the household fund loan is 3.4% per annum around October 2004, which is at the time of the occupancy of the apartment house of this case, and 3.1% per annum [3.2% per annum + 6.4%) per annum if the arithmetic average is 2.8% per annum around November 201, which is at the time of the occupancy of the apartment of this case, around the time of conversion of the apartment of this case.

Based on the above facts of recognition, the interest on self-funds calculated in accordance with the above formula set forth in Paragraph 2 (a) (ii) of attached Table 2 of this case is KRW 5,108,154 as listed below.

(d) Self-interest on the lease deposit (i.e., lease period of the National Housing Fund - (e) - 9,671, 438 - 30,50 - 30,542,129, 438. - 28. 10, 27. 0. - 36. 26. 8. 7. 8. 1, 20. - 6. 7. 26. 7. 8. - 7. 1, 206. - 7. 8. 1, 20. 4. - 6. 7. 8. 1, 205 - 7. 8. 1, 207 - 36. 7. 8, 205 - 6. 26. 7. 8, 302, 38. - 28, 2005 - 7. 8. ;

【 Depreciation Costs

㈎ 계산근거

Article 26 of the Enforcement Decree of the Corporate Tax Act, Article 15(3) [Attachment Table 5] of the Enforcement Rule of the Corporate Tax Act: Buildings shall be in accordance with the method of calculating under the straight line method, and 40 years for the standard

㈏ 계산결과

The depreciation costs per 32 square household of the instant apartment calculated according to the above calculation method are 17,879,417 won (=the construction cost per 32 square household of the instant apartment of this case = 9,671,438 won ± the standard lifespan 40 years x the rental period (7+6) 64/365).

x. Construction cost of the apartment of this case

86,900,175 won = 99,671,438 won [1] + 5,108,154 won [2] - 17,879,417 won [2]

(b) The appraised value;

The appraised value shall be calculated by calculating the arithmetic mean of the appraised value of the relevant house appraised by the appraisal corporation in the two locations pursuant to attached Table 1 [Attachment Table 1] Paragraph (2) Item (b) of the former Enforcement Rule of the Rental Housing Act. According to the overall purport of each of the statements and arguments and evidence Nos. 2 and 3, the average appraised value per household of the apartment of this case can be recognized as the money recorded in the “appraisal value” column

C. Price converted for each household of the apartment of this case

The pre-sale conversion price for each apartment house of this case is the arithmetic mean of the construction cost under the above paragraph (1) and the appraisal value under the above paragraph (2). The arithmetic mean of each apartment unit shall be as stated in the "average" column in attached Table 4.

2. Maximum price;

(a) Calculation price = Construction cost at the time of conversion for sale in lots + Construction cost for housing sites at the time of public announcement of recruitment of occupants + Interest on housing site

(i)Standard construction cost at the time of conversion for sale;

㈎ 산정방식

The construction cost, which is the basis of the calculation price, shall be calculated on the basis of the standard construction cost that was in force at the time of the instant conversion for sale in lots, as shown in Section 4 of IV.

According to Article 208-707 of the Ministry of Land, Transport and Maritime Affairs’ notification on the standard construction cost of the publicly constructed rental house, which was in force at the time of the instant conversion for sale in lots, the upper limit price of construction cost applicable to the housing supply area of apartment houses exceeding 11 to 20 stories, which falls under the apartment of this case, is 970,900 won per square meter, and the housing supply area means exclusive area and residential public area.

In addition, according to subparagraph (d) (i) and (f) of attached Table 2 of this case, the area of the underground floor approved by the person authorized to approve the project plan, including the first tenant recruitment notice, can be recognized as the construction cost by the amount equivalent to 63/100 of the standard construction cost. In cases where a rental business operator carries out a balcony shower at once, the construction cost may be added to the construction cost within the limit of 5/100 of the standard construction cost.

㈏ 산정결과

According to the statement in Eul evidence No. 4, the aggregate of the area for exclusive use and the area for residential public use of the apartment of this case 32 square meters is 105.793 square meters, and the underground floor area of each household, which was approved at the time of the first tenant recruitment announcement, can be recognized as having been 24.260 square meters, and the apartment of this case is an apartment constructed by the defendant at the time of the first tenant recruitment announcement. Based on this, the fact that the apartment of this case is an apartment constructed by the defendant at the same time as a balcony showle, is as mentioned above. On the basis of this, if the standard construction cost for each household of the apartment

Part 14,842,711 won for the area of underground floor (i.e., 24.260 square meters x 970,900 square meters x 63 percent x 63 percent x 63 percent x 5,135,735 won for balcony shower (i.e., 102,714,714 x 5%) for the area of housing supplied (i.e., 105.793 square meters x 970,900 square meters) for the area of underground floor (i.e., 102,714,714 x 5%)

【The housing site cost and the interest on housing site cost

Of the site cost at the time of the public announcement of the recruitment of occupants of the apartment of this case, the fact that the amount for the instant apartment of 32 square meters is 16,123,781 is as seen earlier. As such, the sum of the interest on the site cost and the interest on the housing site cost for the instant apartment of 32 square meters is KRW 19,509,261 as stated in the following formula:

【Calculation Form】

19,710,284 = Cost of housing site 16,123,781 + Interest on the cost of housing site 3,586,503 [=16,123,781 won x 3.1% x (7 + 64/365)];

【Family apartment of this case’s calculation price by household

142,403,44 won = 122,693,160 won [i] + 19,710,284 won [Attachment]

(b) Depreciation costs;

The facts that the depreciation costs per household of the apartment of this case were 17,879,417 are as seen earlier.

C. Calculation of the maximum price per household of the apartment of this case

(i)Calculation Method

Calculation Price - Depreciation Costs [b), 2 (a) (iii), and (c) of the attached Table 1 of this case]

Dod Specific Calculation Results

124,524,027 won (=142,403,444 won - 17,879,417 won)

3. Reasonable pre-sale conversion conversion;

The arithmetic average value of the building cost of the apartment of this case and the appraisal value of the apartment of this case are the same as the "average Amount" stated in the attached Table 4. Since all of the above arithmetic average amount is below 124,524,027 won, which is the upper average price of the apartment of this case, the legitimate conversion price of the apartment of this case to the unit of the apartment of this case is the amount stated in the "average Amount" in the attached Table 4, which is the arithmetic average value of the building cost of the apartment of this case

4. Sub-committee

The fact that the sales price per household of the apartment of this case is each money stated in the "sale price" column in the attached Table 4 is as shown above. Since it is apparent in calculating that the sales price per household of the apartment of this case exceeds the amount stated in the "average Amount" column in the attached Table 4, which is the legitimate conversion price of the apartment of this case, the part concerning the sales price of each apartment of this case, which is calculated in accordance with the relevant Acts and subordinate statutes, such as the former Rental Housing Act, is invalid.

Therefore, the Defendant is obligated to pay to the Plaintiffs 5% per annum under the Civil Act from November 27, 2012 to November 22, 2013, the delivery date of a copy of the complaint of this case from November 23, 2013, and from November 23, 2013, the “amount of unjust enrichment” stated in the separate sheet No. 4, which is the remaining amount after deducting the legitimate conversion price of the apartment of this case from the purchase price of each apartment of this case for each household of this case. As to each money stated in the separate sheet No. 4, “amount of unjust enrichment” from November 23, 2013 to December 28, 2016, which is the date of delivery of a copy of the application for modification of the purport of this case’s claim of this case, to the Defendant’s objection against the existence and scope of the Defendant’s obligation to perform, 5% per annum from the day following the judgment of the Supreme Court, to December 28, 2016.

VI. Conclusion

Therefore, the plaintiffs' claims are justified within the above scope of recognition, and the remainder is dismissed as it is without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, it shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed. The plaintiffs' appeal as stated in the list of the plaintiffs in attached Form 1 and the defendant's remaining appeal shall be dismissed. It is so decided as per Disposition.

[Attachment]

Judge Park Jong-hee (Presiding Judge)

(1) 1) Although [Attachment 4 List 298 Plaintiff 298 was not a lessee, around August 23, 2004, Nonparty 1, who leased 32 square-type 106 Dong-dong 1503 from the Defendant, transferred the right to claim restitution of unjust enrichment to Plaintiff 298 on March 20, 2012 and notified the Defendant of the above assignment of claim on the same day, the person who leased 32 square-type 106 Dong-dong 1503 of the instant apartment shall be indicated as Plaintiff 298 for the convenience of indication. ② Plaintiff 321 was not a lessee. However, on August 23, 2004, Nonparty 2, who leased 32 square-type 1503 Dong-dong apartment, indicated the instant apartment-type 21321, Dong-dong 214, 201, Plaintiff 321, Dong-dong 14, 2010-dong 214.

2) As to the legal relationship concerning conversion of rental housing for sale in lots, the Act and subordinate statutes at the time of conversion for sale in lots shall not apply at the time of the initial recruitment or commencement of lease (see, e.g., Supreme Court en banc Decision 2009Da97079, Apr. 21, 201). As such, the Act and subordinate statutes, which were enforced around November 201 at the time of conversion in lots of the instant apartment

3) The number of days from November 19, 2002, on which the Defendant’s advance payment of the purchase price was made, until February 23, 2005, which is six months from the date of public announcement of invitation of residents.

4) 32 square meters for exclusive use by each household 84.9842 square meters x 600 households

5) Total area of 23 square meters (=59.8404 square meters x 338 households) + total area of 50,990.519 square meters)

Note6) The number of days from October 28, 201 to December 30, 201, the day immediately preceding December 31, 201, for which the conclusion of a contract for conversion for sale in lots was completed, which was seven years from October 28, 2004, the date of commencement of lease.