2015Da206386 Confirmation, etc. of the existence of an obligation

Appellee, Appellee

The list of the plaintiffs and the succeeding intervenors is as shown in the attached Table.

[Defendant-Appellant] Defendant 1 (Attorney Lee Jae-deok, Counsel for defendant-appellant)

1. M;

2. N:

3. P.

4. AB

5. AG;

6. Neither;

7. AL;

8. AR;

9. BD;

10. BG.

k. BJ

12.BP

13.BR

14.BS

15.BU

16, BW

17. BX

Korea Land and Housing Corporation

Law Firm Barun (LLC)

Attorney Park Jae-ho, Lee Jae-ho, Park Jin, Park Jin-jin, Park Jae-in, Park Jae-ju, Park Man-ok, Kim

Freeboard

Daejeon High Court Decision 2012Na10179 Decided January 21, 2015

July 26, 2018

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daejeon High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

(1) Roads and roads for which a project implementer is required to provide basic living facilities to a person subject to relocation measures include, notwithstanding their length or width, roads constituting arterial facilities as stipulated in Article 2 subparag. 8 of the Housing Act, namely, roads linking roads located outside the relevant housing complex to roads of the same kind located outside the relevant housing complex (see Supreme Court Decision 2012Da3303, Sept. 26, 2013) as well as roads for linking roads located outside the relevant housing complex (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road installed within a public-service zone by a project implementer, which is an essential facility for the achievement of the functions of a housing complex, etc. and for the passage of the entire residents in the housing complex, and which are essential facilities for the achievement of the functions of the housing complex, etc. and for the passage of the entire residents

For the reasons indicated in its holding, the lower court determined that the total road area was included in the construction area of basic living facilities, deeming that the entire road constructed in the project district of the Multifunctional Administrative City construction project (hereinafter referred to as the “project in this case”) constituted basic living facilities. Accordingly, the lower court rejected the Defendant’s assertion that, among roads installed in the project district in this case, roads constructed in urban planning roads with a width of at least eight meters and in special-purpose areas, other than exclusive residential areas and general-purpose areas

Examining the above legal principles and records, the above determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the scope of basic living facilities.

(2) Of the traffic squaress, the intersecting point of the traffic squares is part of the roads, which are installed for the purpose of smooth communication of vehicles and pedestrians at the intersection of the combined major road (see Supreme Court Decision 2014Da85391, Jul. 9, 2015). In cases where the roads with the intersecting point square are installed are basic living facilities, the intersecting point should also be deemed as basic living facilities (see Supreme Court Decision 2015Da19063, Nov. 26, 2015).

Since the entire roads installed in the project district of this case fall under the basic living facilities as seen earlier, the lower court is justifiable to have determined that the area of the traffic squares (intersection squares) installed in the project district of this case is also included in the area where the basic living facilities are installed. In so doing, it did not err by misapprehending the legal doctrine on the scope of the basic living facilities.

(3) The drainage stations, water purification stations, and water purification stations are water supply-related facilities that are essential for the lives of the residents in a project district (see Supreme Court Decision 2012Da59268, 59268, 59275.922, supra; Supreme Court Decision 2015Da1291, 1307, 1314, Feb. 18, 2016).

The lower court, based on its stated reasoning, determined that the area of the drainage and purification plant is included in the installation area of basic living facilities.

Examining the above legal principles and records, the above determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the scope of basic living facilities.

2. Regarding ground of appeal No. 2

(1) The cost of installing a utility tunnel is an infrastructure installed underground by commonly accommodating underground facilities, such as supply facilities for electricity, gas, and tap water, communications facilities, and sewerage facilities, for the purpose of improving the aesthetic view of a utility tunnel, preserving the road structure, and ensuring smooth flow of traffic (Article 2 subparag. 9, subparag. 6 (c) of the National Land Planning Act), and falls under road appurtenances (Article 3 subparag. 10 of the Enforcement Decree of the Road Act). The cost of installing a utility tunnel is deemed to be included in the cost of installing the basic living facilities essential for residential life, such as electric lines, communications lines, water pipes, heat transmission pipes, gas pipes, and sewerage pipes. In light of the fact that a utility tunnel is installed, the cost of installing the utility tunnel is mostly the basic living facilities essential for residential life.

In the same purport, the lower court was justifiable to have determined that the cost of installing the instant utility tunnel was included in the cost of installing the basic living facilities. In so doing, it did not err by misapprehending the legal doctrine on the scope

(2) As seen earlier, the lower court was justifiable to have determined that the instant drainage construction cost was included in the cost of basic living facilities. In so doing, it did not err by misapprehending the legal doctrine on the scope of basic living facilities.

(3) Since bridges, complete three-dimensionalization facilities, underground parking roads, pedestrian overpassess, underground sidewalks, high-priced roads, tunnels, bridges, underground passages, overpasses, and three-dimensionalization facilities are part of roads (see Articles 2 subparag. 1 and 51 of the Road Act). If roads on which such facilities are installed are installed are basic living facilities, such facilities constituting a part of roads shall also be deemed basic living facilities (see, e.g., Supreme Court Decisions 2015Da21943, Dec. 10, 2015; 2015Da22083, Feb. 18, 2016).

As seen earlier, the entire road installed in the project district of this case constitutes a basic living facility. Therefore, the lower court is justifiable to have determined that the cost of installing a bridge 1, a bridge 2, a complete three-dimensionalization facility, an underground garage, a sidewalk 2, a pedestrian bridge, an underground sidewalk, an elevated level, or a tunnel installed in the project district of this case is included in the cost of installing a basic living facility. In so doing, there were no errors in the law regarding the scope

(4) Facilities maintenance and management costs

The lower court determined that out of the cost of maintaining and managing facilities, the amount equivalent to the ratio of the area of basic living facilities to the entire area of the instant project district constituted the cost of installing basic

However, the cost of maintaining and managing facilities is not required for the installation of various facilities, but for the time when the competent management authority takes over the management authority of the facilities after the completion inspection of the installation works, since the defendant's cost is anticipated to be required for the temporary maintenance and management of the facilities, and the "fixed ratio of the cost of installing the facilities" is a kind of reserve fund which includes the "fixed ratio of the cost of installing the facilities in advance at the development cost", it cannot be deemed that the cost of installing the main facilities is not related to the installation of the main facilities (see Supreme Court Decision 235714, Nov. 26, 2015). Therefore, this part of the judgment below erred by misapprehending the legal principles

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-dae

Justices Kim Jae-in

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.