[1] In case where the executor of a public project provides a housing site, etc. to the person subject to relocation measures and sets the sale price of the resettled housing site at a certain amount at the cost of the housing site development, the standard to determine whether the sale price includes the cost of the basic living facilities

[2] In a case where a person subject to measures for resettlement has increased the sales price actually paid due to a delay in the sales price, whether the business operator can be deemed to have unjust enrichment (negative)

[3] The method of calculating the amount of overdue interest for the legitimate sale price among overdue interests for the sale price

[1] Article 78(1) and (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 741 of the Civil Act / [2] Article 78(1) and (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 741 of the Civil Act / [3] Article 78(1) and (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 741 of the Civil Act

[1] Supreme Court Decision 2014Da8997 Decided October 15, 2015 (Gong2015Ha, 1653) / [2] Supreme Court Decision 2014Da35365, 35272, 35389 Decided November 27, 2014

Attached List of Plaintiffs (Attorney Kim Jong-tae, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Park Ho-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na98326 decided August 21, 2014

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In cases where a project operator of a public project (hereinafter “project operator”) supplies a housing site, etc. to a person subject to relocation measures by means of relocation measures (hereinafter “special supply”) and sets the sales price of a resettled housing site at a certain amount at the cost of development of the housing site, whether the sale price exceeds “the amount obtained by deducting the cost of installation of basic living facilities from the cost of development of the housing site” and the scope thereof should be determined (see, e.g., Supreme Court Decision 2014Da8997, Oct. 14, 2015).

In addition, even if the sales price actually paid by a person subject to relocation measures has increased due to the delinquency of the sales price in arrears, it cannot be deemed that the person subject to relocation measures was unjust enrichment due to the cause attributable to the person subject to relocation measures (see Supreme Court Decision 2014Da35365, 35272, 35389, Nov. 27, 2014, etc.).

B. For the reasons indicated in its holding, the lower court determined as follows: (1) The Plaintiffs, who purchased a detached house site from the Defendant, by special supply, to the extent that the overdue interest corresponding to the “sale price calculated by deducting the basic cost of living facilities from the sale price of this case” (which is the expression “justifiable sale price,” which is the expression of the lower court; hereinafter the same shall apply) among the overdue interest paid under each of the instant sales contracts, cannot be unjust enrichment; (2) the amount of unjust enrichment by each of the instant sales contracts shall be calculated on the basis of the amount calculated by deducting the legitimate sales price from the actual sale price paid; and (3) the specific amount is recognized to the effect that the amount is “justifiable overdue interest” - the total amount of payment, including the overdue interest - the supply area x the legitimate sale price per 1 square meter x legitimate overdue interest; and (3) the amount of “justifiable overdue interest” is calculated by the method of “payment interest 】 (total payment amount including legitimate sale price / overdue interest)” under the attached Table 2 of the lower judgment.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the following is determined.

(1) In calculating the amount of unjust enrichment from the cost of installing the basic living facilities, the lower court’s determination to the effect that the amount of overdue interest corresponding to the legitimate sale price, i.e., the “justifiable overdue interest” cannot be an unjust enrichment, and thus, it is reasonable to have the amount deducted from the “total amount of actual payment, including interest at the delay.”

(2) However, the “justifiable overdue interest” is corresponding to the legitimate sale price, and in order to determine the amount corresponding to the overdue interest on the legitimate sale price among overdue interests on the sale price, it shall be calculated by applying the ratio of the due sale price to the due sale price to the due sale price. If the sale price falls short of the legitimate sale price, it shall be the total overdue interest paid.

However, in calculating the “justifiable overdue interest” as seen above, the lower court calculated the amount by using the method of distributing the overdue interest based on the ratio of the legitimate sales price to the total amount of the payment including the overdue interest as well as the payment price as seen above, and thereby resulting in the outcome of recognizing the establishment of unjust enrichment of this case and its excessive amount.

Therefore, this part of the judgment of the court below is erroneous in the misunderstanding of legal principles as to the establishment and scope of unjust enrichment due to the transfer of the cost of basic living facilities.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Kim So-young (Presiding Justice)