Plaintiff 1 and six others (Law Firm Wond, Attorneys White-gu et al., Counsel for the plaintiff-appellant)

E. E.S. (Attorney Go Young-deok, Counsel for the defendant-appellant)

May 18, 2012

Seoul Central District Court Decision 2007Gahap93757 Decided October 1, 2010

1. All of the plaintiffs' claims extended in the appeal and the trial are dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The decision of the first instance court is revoked. The defendant shall pay to the plaintiffs the amount of money in attached Form 1. 7. The amount of each of the above amounts and each of the above amounts listed in attached Table 4 with 5% per annum from the payment date of each final purchase price to the sentencing date, and 20% per annum from the next day to the day of full payment (the plaintiff extended the purport of the claim at the trial).

1. Basic facts

A. Status of the parties

1) The defendant is a local government-invested public corporation established on December 21, 198 by Seoul Special Metropolitan City under Article 49 of the Local Public Enterprises Act and Article 2389 of the Seoul Special Metropolitan City Ordinance on the Establishment and Operation of Urban Development Corporation (Ordinance No. 2389 of December 28, 198), with the aim of promoting citizen's stabilization of residential life and improvement of welfare through the development and supply of housing sites, the construction, improvement, supply and management of housing, etc.

2) The plaintiffs are those who respond to the compensation for consultation on their own buildings pursuant to the Civil Apartment Removal Project or the urban planning project implemented by the Mayor of Seoul Special Metropolitan City on the delegation of each agency to the head of the Gu under his/her jurisdiction as listed below, and are selected as a person eligible for special supply of national housing in accordance with the "Rules on Special Supply of National Housing to the Residents of Removal, etc. of Seoul Special Metropolitan City, and purchase ○○ apartment unit

【Doide 1】

On April 12, 199 on April 12, 1999, the date of the public announcement of the authorization of the plaintiff's project included in the main sentence or the date of receiving compensation money for the project operator's title of the project for removing real estate after the public announcement of the compensation plan. On April 12, 209, the head of Jongno-gu Seoul Metropolitan Government ( Address 1 omitted) apartment rearrangement project (No. 1 omitted apartment 3 Dong Dong 110) on April 12, 299, the head of Jongno-gu Seoul Jongno-gu (No. 2 omitted) on April 12, 209, Jongno-gu (No. 2 omitted) on September 3, 2003, the head of Jongno-gu Seoul Metropolitan Government (No. 3 omitted) on December 20, 2005, the head of Geumcheon-gu Seoul Metropolitan Government (No. 5, No. 5205, Feb. 4, 2003) on December 24, 2002

(b) Conclusion of the sales contract;

1) On December 6, 2002, the Minister of Construction and Transportation designated and publicly announced the Defendant Corporation as the project executor of the area planned to develop housing sites for the site of the Defendant Corporation under Article 2002-283 of the Ministry of Construction and Transportation, and the Mayor of the Seoul Special Metropolitan City as the Seoul Metropolitan Government Notice No. 2003-285 on October 6, 2003, the head of Songpa-gu Seoul Metropolitan Government approved and publicly announced the designation of the area planned to develop housing sites for the site of the Seoul Metropolitan City and the alteration of the designation of the area

2) On the other hand, the Defendant Corporation carried out the said housing construction project after obtaining approval from the Mayor of Seoul Special Metropolitan City on the housing site development project site of 20,174 square meters, including 300 national rental housing units, 237 public housing units, and 537 households. Some of the above public housing units 237 households were specially sold to the Plaintiffs.

3) The Plaintiffs filed an application for special supply of national housing with the head of the competent Gu on the date indicated below [Do table 2], and the head of the competent Gu notified the Defendant Corporation of the list. On February 8, 2003, the Defendant Corporation received an application for special supply with approval from the head of the Seoul Special Metropolitan City Mayor on the receipt of the application for special supply of national housing in the long-term district. On October 23, 2003, the Plaintiffs were selected as a person eligible for the special supply of national housing in the long-term housing district. Accordingly, the Defendant Corporation: (a) on April 27, 2007 against those eligible for the special supply of national housing in the long-term district including the Plaintiffs (the Plaintiff was assigned to the ○○○○ apartment in the long-term district) and (b) on August 207, 207; (c) on September 207, 2007, the Plaintiff concluded the sales contract with the head of the competent Gu to enter the sales contract into with the Defendant’s housing construction project and the apartment unit.

[Attachment 2]

Plaintiff 1. The sale price for the object of a contract, which was contained in the main text of the table, 376,780,000 won on February 31, 2007 (No. 1 omitted) 376,780,000 on September 17, 2003, Plaintiff 376,780,000 won on October 12, 2007, 369,693,693,000 won on February 36, 207, 2007 (No. 367, 207, 368, 207, 207, 368, 207, 368, 207, 3693,000 won on April 26, 2003, Plaintiff 208 (No. 368, 207, 36, 207, 36, 2005).

4) Meanwhile, with the consent of Defendant Corporation on November 30, 2007, Nonparty D succeeded to the rights and obligations regarding the sales contract from Plaintiff 4. By February 2008, Plaintiff 4, except Plaintiff 4, paid all the sales price set forth in the sales contract of this case by February 3, 2008.

[Ground of Recognition] The facts without dispute, Gap evidence 1-1 through 7, Gap evidence 3, 4, 6, 7, Gap evidence 10-1 through 7, Gap evidence 11-1 through 8, Gap evidence 45-15 through 18, 25, 26, Gap evidence 69-1 through 14, Gap evidence 70-1 through 11, Gap evidence 73-1, Eul evidence 82, 83, Eul evidence 1, Eul evidence 6-1, 2, and 3-1, 2, and the purport of the whole pleadings, and the purport of the whole arguments.

2. Summary of the plaintiffs' assertion

According to 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 “former Public Works Act”), the Plaintiffs received special purchase of apartment units in the area where the Defendant Corporation was located in the relocation measures following the implementation of public works, such as the citizen apartment rearrangement project. According to 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 “former Public Works Act”), the costs of installing the basic living facilities shall be borne by the project operator and shall not be borne by the person subject to relocation measures. Accordingly, the Defendant Corporation shall refund the late payment charges

3. Relevant statutes and judgments

(a) Relevant statutes;

Attached Form 2. The entry is as shown in Annex 2.

B. Determination as to whether a project constitutes a public project

1) The plaintiffs' assertion is premised on the fact that the citizen apartment rearrangement project and the urban planning project entrusted by the Mayor of Seoul Special Metropolitan City to the head of each Gu constituted a public project stipulated in Article 4 of the former Public Works Act. First, in relation to the plaintiffs 3, a multi-purpose square construction project for the plaintiff 4-dong city related to the plaintiff 3 constitutes a public project stipulated in Article 4 subparagraph 3 of the former Public Works Act, and a road construction project for the plaintiff 5 constitutes a public project stipulated in Article 4 subparagraph 2 of the former Public Works Act, and there is no dispute between the parties. However, the business related to the plaintiffs other than the plaintiff 3 and the plaintiff 5 (hereinafter "the plaintiff 1 et al.") is so-called "civil apartment rearrangement project" and the above citizen apartment rearrangement project does not fall under the projects stipulated in Article 4 subparagraph 1 through 6 of the former Public Works Act, but is limited to the "project that can expropriate or use land, etc. under other Acts" stipulated in subparagraph 7. The following is examined.

(ii) the facts of recognition

㈎ 서울특별시는 1969년부터 1971년 사이에 서민들의 주택문제 해결과 불량건물 정리를 목적으로 시(시)와 입주자들의 공동 부담 아래 서울시 일원에 434개동 17,000여 세대의 시민아파트를 건립하였는데, 건립된 지 상당기간이 경과하면서 위 시민아파트가 노후화되자 1997.경까지 286개동을 철거하였다. 서울특별시는 1997. 8.경에 이르러 당시까지 남아있던 148개동의 시민아파트를 철거하는 이른바 ‘시민아파트 정리사업’을 추진하기로 하고, ‘시민아파트 정리 5개년 계획’을 마련하였는데, 위 계획에는 ‘정리계획에 적극 호응할 수 있도록 보상 및 이주대책을 지원하여 참여를 유도한다’는 내용이 포함되어 있었다.

㈏ 서울특별시는 시민아파트 정리사업을 추진하면서 재개발·재건축 등의 주민자체개발방식으로 정리되는 시민아파트 이외에는 대부분의 시민아파트 정리사업을 관할 구청장들에게 위임(기관위임)하여, 위 구청장들이 아파트 소유자들로부터 해당 시민아파트를 개별적으로 매수하는 방식(이하 ‘시매입 정리방식’이라 한다)을 주1) 취하였다. 서울특별시는 ‘시매입 정리방식’에 의한 시민아파트 정리사업을 보다 원활하게 추진할 목적으로 1997. 12.경 ‘공공주택 특별공급 5개년 수급계획’을 수립하여 이를 피고 공사에 통보하였는데, 위 수급계획에는 ‘도시계획사업’으로 철거되는 철거민뿐만 아니라 ‘시민아파트 정리사업’으로 인하여 철거되는 철거민에 대하여도 구 공공용지의 취득 및 손실보상에 관한 특례법(2002. 2. 4. 법률 6656호로 폐지되기 전의 것, 이하 ‘구 공특법’이라 한다) 제8조 와 주택공급에 관한 규칙 제19조 등을 적용하여 공공주택을 특별공급하기로 하는 내용이 포함되어 있었다.

㈐ 그에 따라 관할 구청장들은 실제로는 시민아파트 소유자들로부터 해당 아파트를 매수하는 것이었음에도 불구하고 그 보상방법 등에 관하여 구 공특법이 적용된다는 취지의 보상계획공고 등을 하였고, 해당 아파트를 자치구가 매수하여 그 소유권을 취득할 경우에도 ‘공공용지의 협의취득’을 등기원인으로 하여 소유권이전등기를 하기도 하였다.

㈑ 그러나 시매입 정리방식에 의한 시민아파트 정리사업은 구 도시계획법(2002. 2. 4. 법률 제6655호로 폐지되기 전의 것, 이하 같다)에 따라 시행된 도시계획사업 등과는 달리 토지 등을 강제로 수용 또는 사용할 수 있는 근거가 없이 추진된 주2) 것이어서 시민아파트 소유자들 중 일부가 임의매도를 거부할 경우에는 수년이 넘도록 해당 아파트의 철거가 이루어지지 않았는데, 원고 1등이 소유하고 있던 △△아파트, □□아파트, ◇◇아파트도 ‘시매입 정리방식’에 따라 시민아파트 정리사업이 시행된 것이었다.

㈒ 한편, 피고 공사는 서울특별시의 위와 같은 방침과 관할 구청장들의 통보에 따라 시민아파트 정리사업으로 인하여 아파트를 관할 자치구에 매도한 사람들에 대하여도 국민주택을 특별공급하여 왔으며, 이러한 관행은 원고 1등이 피고 공사로부터 국민주택 특별분양 대상자로 선정될 때까지 지속되어 왔다.

[Ground of Recognition] Facts without dispute, Gap evidence 36-1, 2, 3, Gap evidence 45-4 through 10, 15, 16, 17, Gap evidence 46-5, Gap evidence 71-1, 2, 4, 6, 7, and Gap evidence 82-4 through 8, and the purport of the whole pleadings

3) Determination

㈎ 앞서 본 사실관계에 의하면, 시민아파트 정리사업은 서울특별시의 위임을 받은 관할 구청장들이 노후화된 시민아파트를 개별적으로 매수하여 이를 철거한 것에 불과하므로, 이를 들어 구 공익사업법 제4조 제7호 소정의 ‘다른 법률에 의하여 토지 등을 수용 또는 사용할 수 있는 사업’에 해당한다고 볼 수는 없다.

㈏ 이에 대하여 원고 1등은 ‘시매입 정리방식에 의한 시민아파트 정리사업은 낙후된 아파트의 붕괴로 인한 재해로부터 주민이나 방문객 등을 보호하기 위한 공익적 필요에 기초하여 시행된 것으로서, 시민아파트의 철거는 구 재난관리법(2004. 3. 11. 법률 제7188호로 폐지되기 전의 것, 이하 같다) 제39조 에서 규정하고 있는 장애물의 변경 또는 제거에 해당하고, 시민아파트 정리사업은 구 재난관리법 제39조 에 의하여 장애물의 변경 또는 제거를 위해 토지 등 장애물을 수용 또는 사용할 수 있는 사업에 해당하므로, 구 공익사업법 제4조 제7호 에서 말하는 공익사업에 해당한다’는 취지로 주장한다.

The term “project that can expropriate or use land, etc. pursuant to other Acts” under Article 4 subparag. 7 of the former Public Works Act means a case where the expropriation or use of land, etc. is clearly stated, as stipulated in Article 95(1) of the National Land Planning and Utilization Act, “the implementer of an urban or Gun planning facility project may expropriate or use the following goods or rights necessary for an urban or Gun planning facility project.” However, Article 39 of the former Disaster Management Act only refers to the alteration or removal of obstacles as a temporary emergency measure against a disaster. As such, it cannot be deemed to mean the expropriation or use of land, etc. or rights, and it cannot be deemed that an apartment that is at risk of collapse falls under the “ disability” under Article 39 of the former Disaster Management Act. Thus, the above assertion by the Plaintiff, etc. cannot be accepted:

㈐ 원고 1등은 ‘시민아파트 정리사업은 공원, 녹지, 주차장 등 공공시설 설치를 전제로 한 것이므로 공익사업에 해당한다’는 취지로도 주장한다. 그러나, 시민아파트 정리사업이 구 도시계획법 등 관계 법령에 따른 사업인정절차를 거쳐 추진된 것이 아니라 실제로는 서울특별시로부터 위임을 받은 관할 구청장이 해당 아파트 소유자들로부터 이를 매수하는 방식으로 진행되었음은 앞서 본 바와 같으므로, 서울특별시가 시민아파트를 철거한 자리에 공원, 녹지, 주차장 등의 공공시설을 설치할 계획을 가지고 있었다고 하더라도 그러한 사정만을 들어 시민아파트 정리사업이 곧바로 공익사업에 해당한다고 볼 수는 없다.

㈑ 원고 1등은 ‘시민아파트 정리사업과 관련하여 손실보상 적용법령으로 구 공특법령 또는 구 공익사업법령이 제시되고 적용된 점, 시민아파트 정리사업과 관련하여 서울시와 각 구청 공문서에 이주대책을 명시한 점 등에 비추어 보면, 원고 1등이 구 공익사업법 제78조 소정의 이주대책대상자라는 점에 대하여는 신뢰보호의 원칙이 적용되어야 한다’는 취지로 주장한다.

Therefore, in order to apply the principle of the protection of trust to the acts of administrative agencies in public health and general administrative legal relations, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should not be responsible for the trust of the individual. Third, the individual should have trusted and trusted that the opinion statement of the administrative agency is justifiable, third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should make a disposition contrary to the above opinion statement, thereby infringing on the interests of the individual who trusted the opinion statement, and last, the disposition in accordance with the above opinion statement should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006).

In other words, the case returned to the Seoul Special Metropolitan City and the head of the competent Gu who implemented the civil apartment rearrangement project under the delegation by the agency was to purchase the relevant apartment from the civil apartment owner, and the compensation plan was publicly announced to the effect that the former Special Law on Public Works applies to the method of compensation, etc. In addition, even if the relevant apartment is purchased by an autonomous Gu and the ownership is acquired, the act of completing the registration of transfer of ownership by designating the "acquisition of public land" as the ground for registration and completing the registration of transfer of ownership as the same as that of the former Special Law on Public Works or the former Public Works Act. However, it is difficult to view that there was a public opinion expressed by the project operator that the plaintiff 1 et al. will bear the cost of the basic facilities by applying Article 78(4) of the former Special Law on Public Works, on the sole basis of the act

On the other hand, the principle of trust protection is for legal stability, which is the content of the principle of a rule of law, and therefore, it is problematic to give priority to any one. This is a matter that should be resolved by weighing the public interest such as realization of legitimate state under specific circumstances and the interests of the persons concerned such as protection of the existence of administrative actions. In this case, even if the head of the competent Gu has the expectation that the measures for resettlement pursuant to the former Special Act or the former Public Works Act will be taken without clear legal basis, it can only be applied to the case where the above plaintiffs are not the one subject to relocation measures, i.e., the head of the competent Gu can be specially sold national housing in order to offer incentive for the conclusion of sales contract notwithstanding the fact that the above plaintiffs are not the one subject to relocation measures, i.e., the above plaintiffs can be said to have not been given an opportunity to obtain profits from the sale of the apartment at the time of the sale of the apartment in question by taking into account the following circumstances:

4) Sub-determination

Therefore, the above plaintiffs' assertion cannot be accepted under the premise that the plaintiffs 1 et al. are "persons who lose their base of livelihood due to the provision of residential buildings due to the implementation of public works (persons subject to relocation measures)" under Article 78 (1) of the former Public Works Act. Even if the above plaintiffs are eligible for relocation measures under Article 78 (1) of the former Public Works Act, the above plaintiffs' assertion is not accepted for the following reasons.

C. Determination on the other party of the claim for restitution of unjust enrichment

1) The parties' assertion

㈎ 원고들의 주장

In other words, the delegation of relocation measures under the Act on the Special Supply of National Housing is not the entrustment of the agency to which the rights and obligations belong to the delegating person, but the entrustment of the agency to which the rights and obligations belong to the delegated person, and thus, the subject of relocation measures under the Act on the Special Supply of National Housing is the Defendant Corporation. Accordingly, the Defendant Corporation is obligated to return to the Plaintiffs unjust enrichment equivalent to the cost of installation of basic living facilities, as it is obliged to return to the Plaintiffs unjust enrichment equivalent to the cost of installation of basic living facilities.

㈏ 피고 공사의 주장

The Defendant Corporation’s special sale of apartment units to the Plaintiffs is the provision of apartment units by the recommendation of each head of the Gu, which is the project executor, according to the “Rules on Special Supply of National Housing.” Therefore, the Defendant Corporation, which is not the project executor, does not have a duty to return unjust enrichment equivalent

2) Determination

㈎ 서울특별시와 피고 공사 사이의 관계

(1) Article 81(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 6656, Feb. 4, 2002) provides that "any project operator may entrust the business of compensation or relocation measures to the following institutions" in subparagraph 1, and subparagraph 2 thereof provides that "government-invested institutions or government-invested institutions prescribed by Presidential Decree which have actual records of compensation or expertise in compensation business" shall be included in subparagraph 6 of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Presidential Decree No. 17856, Dec. 30, 200) or Article 43(1) of the former Enforcement Decree of the Act on the Compensation Therefor (amended by Act No. 1940, Mar. 24, 2006).

However, since the project of this case was publicly announced from around 1999, and the plaintiffs filed a special application for the supply of national housing in the area of long-term housing around 2003, it is clear that the relocation measures for the project of this case had already been implemented since the amendment of the relevant Act and subordinate statutes. Therefore, even if the defendant Corporation sold national housing to the plaintiffs with respect to the project of this case, it was not included in the agencies that can be entrusted with the relocation measures at the time of special sale, and thus, it cannot be deemed that the defendant Corporation entrusted the relocation measures to the Seoul Special Metropolitan City pursuant to Article 81 (1) 2 of the former Public Works Act.

(2) Next, we examine whether the Seoul Special Metropolitan City and the Defendant Corporation are entrusted with the affairs concerning the relocation measures under the agency contract concluded between them.

Article 95 (2) of the former Local Autonomy Act (amended by Act No. 8423 of May 11, 2007; hereinafter the same) provides that "the head of a local government may delegate or entrust part of the affairs under his/her authority to the competent local government, public organization, or its institution (including its office and branch office) in accordance with municipal ordinances or municipal rules." Article 19 (1) of the former Seoul Special Metropolitan City Ordinance on the Establishment and Operation of Urban Development Corporation (amended by Act No. 3639 of July 26, 199; hereinafter the "former Ordinance") provides that "the State, local government, or other truster may execute the affairs under his/her authority on behalf of the Mayor with the approval of the Mayor, and in this case, the entrustment contract shall be complied with." Meanwhile, according to Articles 66-1 and 2 of the former Local Autonomy Act, the Seoul Special Metropolitan City Mayor and the president of the Corporation shall execute the affairs under his/her authority on behalf of the head of the relevant urban development project (hereinafter referred to as "the Housing Development Promotion Act").

However, according to the aforementioned facts and evidence, the following circumstances are revealed. First, all of the instant projects were implemented by the head of the Gu entrusted by the Seoul Special Metropolitan City, and the Defendant Corporation was involved in the special sale of national housing in connection with the instant project only. Second, the Seoul Special Supply Plan for Public Housing, which was notified to the Defendant Corporation around December 1997, includes not only the removal of the “urban planning project” but also the removal of the removal due to the “civil apartment rearrangement project” as well as the removal of the “civil apartment rearrangement project.” Thus, the special supply of public housing related to the instant project, which was planned before July 21, 1999, was executed by the Seoul Special Metropolitan City. In full view of these circumstances, it is not appropriate for the Plaintiff to use the instant special supply of public housing as being entrusted to the Defendant Corporation as the basis for the instant special sale of the apartment apartment zone to the Plaintiffs, and thus, it is not appropriate for the Plaintiff to have been entrusted to the Defendant Corporation 2, 2007.

(3) Lastly, we examine the procedures in which special supply is made in accordance with the “Rules on Special Supply of National Housing”.

The issue of whether a person is a person eligible for special supply under the above National Housing Special Rules shall be determined by the head of the Gu after determining whether the person satisfies the requirements of Article 5 of the above Rules and notify the person concerned (Article 8(5)). A person notified by the head of the Gu as a person eligible for special supply by the head of the Gu shall file an application for special supply with the head of the Gu with the prescribed documents. The head of the Gu shall notify the defendant Corporation of the list of applicants, and the defendant Corporation shall inquire about the ownership of the special supply list notified by the head of the Gu and notify the head of the competent Gu of the result, and finally the head of the Gu shall finally determine the person eligible for special supply such as national housing (Article 9 and Article 11). Considering the fact that the procedure for determining the person eligible for special supply is not the defendant Corporation but the head of the agency entrusted by the Seoul Special Metropolitan City Mayor, it is difficult to deem that the relocation measures under the above National Housing Special Rules is entrusted to the defendant Corporation. Rather, even in accordance with a series of procedures under the above National Housing Special Rules, it appears that the sales contract between the head of the

(4) As such, a person who supplied a housing site or a house to a person subject to relocation measures through the arrangement of a project operator is not a project operator, and even if such supplier entered into a supply contract at a price that includes an amount equivalent to the cost of the basic living facilities with the person subject to relocation measures, this part of the supply contract cannot be deemed null and void in violation of Article 78(4) of the former Public Works Act or its supplier’s unjust enrichment equivalent to the cost of the basic living facilities (see Supreme Court Decision 2009Da16834, Jul. 28, 201). In this case, the aforementioned legal doctrine cannot be claimed for return of unjust enrichment against the Defendant, who is not the project operator,

㈏ 위탁관계라고 볼 경우에 대한 가정적 판단

The Plaintiffs asserted to the effect that, under the premise that the consignment relationship between Seoul Special Metropolitan City and the Defendant Corporation is a “collective consignment,” the subject of the rights and obligations is different, and that the rights and obligations accrue to the Defendant Corporation. Therefore, the Plaintiffs may file a claim for restitution of unjust enrichment against the Defendant Corporation. However, even if there exists any consignment relationship between Seoul Special Metropolitan City and the Defendant Corporation, it cannot be readily concluded that such consignment relationship is a collective consignment relationship, and more fundamentally, it cannot be determined whether the subject of the return of unjust enrichment is the Defendant Corporation either whether the consignment between Seoul Special Metropolitan City and the Seoul Special Metropolitan City Corporation is a collective consignment or whether it is

First, the fundamental purpose of the unjust enrichment system is to recognize the principle of fairness (see Supreme Court en banc Decision 79Da483, Nov. 13, 1979) and to coordinate the movement of property value by allowing the beneficiary to retain the relative relationship between the loss and the beneficiary and return it to the loss to be reverted if the relative and substantial justification is not made in light of the relationship between the loss and the beneficiary and the basis of the unjust enrichment system, even if the transfer of property value between the loss and the beneficiary is justifiable in general and formally through the formal application of the positive law system, etc. (see Supreme Court Decision 95Da30390, May 8, 1998). From this perspective, the beneficiary who becomes the counterpart of the claim for the return of unjust enrichment must be the subject to whom the profit actually belongs (see Supreme Court Decision 95Da30390, May 8, 1998)

Therefore, the plaintiffs' assertion that the defendant Corporation may file a claim for return of unjust enrichment against the defendant Corporation because it received the "group entrustment" from the Seoul Special Metropolitan City, is inconsistent with the fundamental purpose of the unjust enrichment system, and rather, it is necessary to place the other party to the claim for return of unjust enrichment on the basis of who the plaintiffs suffered substantial benefits by bearing the costs of installing the basic living facilities.

This legal principle, even if the administrative authority of the head of a higher local government on the maintenance and management of a road was entrusted to the head of a lower local government, insofar as the lower local government was benefiting from the occupation and use of the land, so long as the lower local government, to which the lower local government head belongs, has the duty to return unjust enrichment due to the occupation and use of the land (see Supreme Court Decision 98Da61562, Apr. 23, 1999) or Article 53 of the former Local Tax Act (amended by Act No. 4415, Dec. 14, 1991) (see Supreme Court Decision 97Da4277, Nov. 11, 1997).

In other words, Article 23(1) of the Seoul Special Metropolitan City Ordinance on the Establishment and Operation of the National Housing Corporation (amended by Ordinance No. 4980, Apr. 22, 2010; hereinafter “Ordinance”) provides that “where construction works are performed by the State or a local government pursuant to Article 71(2) of the Act as an agent of the State or a local government, the expenses to be borne by the State or the local government shall be as follows.” Article 2 provides that “The difference between the average supply price for the benefits that are supplied without compensation or at a price below average supply price and the actual supply price” under Article 78(4) of the former Public Works Act provides that the cost of the basic living facilities at issue shall be borne by the purchaser of the national housing in the case of the general sale, but it shall be deemed that the Plaintiffs are obliged to bear some of the expenses of the construction works at the time of the settlement of accounts in accordance with the Ordinance No. 23(1)2 of the Seoul Special Metropolitan City Ordinance on the Establishment and Operation of the Local Housing Corporation.”

3) Sub-determination

The Defendant Corporation cannot be deemed to have a duty to return unjust enrichment equivalent to the cost of installing basic living facilities to the Plaintiffs, as a person who supplied housing to the person subject to relocation measures through the arrangement of the project implementer, and is not a project implementer. Even if the Defendant Corporation was partially entrusted with the affairs regarding relocation measures by Seoul Special Metropolitan City, the subject who gained substantial profits by removing the cost of installing basic living facilities in connection with the instant sales contract in this case shall be deemed to be Seoul Special Metropolitan City. Therefore, the Defendant Corporation cannot seek a return of unjust enrichment equivalent to the cost

4. Conclusion

Therefore, the plaintiffs' claims of this case are all dismissed due to the lack of reasons, and the judgment of the court of first instance is just, and the plaintiffs' claims extended in the appeal and the trial are all dismissed. It is so decided as per Disposition.

[Attachment sheet of Calculation, such as Unjust Enrichment]

Judges Lee Dong-won (Presiding Judge)

1) On November 27, 2005, the news report materials from the Seoul Special Metropolitan City Housing Planning Department, "Civil apartment rearrangement project was arranged autonomously by residents in an area where the self-development is possible due to its local conditions, and if residents consent at least 80% to the area where reconstruction or redevelopment project is difficult due to the restriction on the floor area ratio or height, etc. due to the restriction on the floor area ratio or park adjacent to the notification unit or park, the building owner shall be entitled to the building compensation and the right to occupy the apartment unit constructed by the Defendant Corporation, and the tenant shall be entitled to the apartment unit in consultation with the building owner in Seoul Special Metropolitan City on the condition that they move into the leased apartment or pay the relocation expenses for three months (No. 45-9)."

Note 2) On December 7, 2007, the news report from the Seoul Special Metropolitan City Housing Planning Department, "Special Sale System served a great role as a means of organizing civil apartments (434 Dong Dong 17,402 households) with no means of compulsory removal." (Evidence A 36-3).

3) Article 78(4) of the former Public Works Act provides that a project operator shall bear the cost of installing basic living facilities. Even if the Defendant Corporation was partially entrusted with the affairs concerning relocation measures with respect to the instant project by the Seoul Special Metropolitan City, the project operator of the instant project is still deemed the Seoul Special Metropolitan City or not the Defendant Corporation. As long as it is obvious that a person who is obligated to comply with the provisions of Article 78(4) of the former Public Works Act is the Seoul Special Metropolitan City, the subject who gains substantial benefits by removing the cost of installing basic living facilities is deemed the Seoul Special Metropolitan City, and in this respect, the status of the Defendant Corporation is not substantially different from that of the general construction company that supplied national housing by the arrangement of the project operator.