[1] In a case where the executor of a public project bears the expenses equivalent to the difference as a result of supplying a housing site at a low price compared to the general housing site for which relocation measures are provided to the person subject to relocation measures, whether the expenses for relocation measures should be deducted when calculating the cost for creating a housing site for the migrants to be supplied (affirmative)

[2] Whether a used waterworks constitutes a basic living facility to be provided to a person subject to relocation measures as a basis for living (negative)

[3] Where the executor of a public project separately determines the sale price of a resettled housing site by applying the gap within the discretionary scope, the gap that should be reflected in calculating the development cost of the individual resettled housing site and the basic living facilities installation cost for the individual resettled housing site (i.e., the difference between the development cost of the entire resettled housing site subject to the secondary allocation and the sale price per unit area of the individual resettled housing site as a result of differential allocation)

[4] In a case where Eul et al. sought a return of unjust enrichment on the grounds that the sale price of a housing site supplied by Eul et al. as a person subject to relocation measures includes the cost of basic living facilities under Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the case holding that the portion corresponding to the sale price, which is not related to the construction of basic living facilities, shall not be considered in the calculation of the amount of unjust enrichment or the amount of the remaining debt to be returned by the Corporation Gap et al.

[1] In a case where the executor of a public project bears expenses equivalent to the difference as a result of supplying a housing site at a low price compared to the general housing site for relocation measures (hereinafter “resident relocation expenses”), if the cost of creating a housing site related to the housing site for migrants supplied to the person subject to relocation measures is included in the relocation measures expenses, it would result in an unfair consequence that the person subject to relocation measures should bear the cost of implementing relocation measures, and such cost should be deducted when calculating the cost of creating the housing site.

[2] Considering the concept, function, and purpose of the installation of used-water treatment facilities as stipulated in Articles 1, 2 subparag. 4, and 9 of the Act on Promotion and Support of Water Reuse, and the fact that used-water treatment facilities, which are used for the installation of used-water treatment facilities, can be regarded as facilities installed for water reuse within a limited scope separate from water supply and sewerage, rather than those replacing all or part of the existing used-water and sewerage functions, even if used-water treatment facilities perform the functions of sewage treatment and water supply, they cannot be deemed as basic living facilities to be provided to the person subject to relocation measures.

[3] Where the operator of a public-interest project individually determines the sale price of a multi-resident housing site by applying a gap within the discretionary scope, the development cost of the entire multi-resident housing site may be deemed to have been differentiatedly allocated to each multi-resident housing site in accordance with the conditions of location. Therefore, when calculating the development cost of the individual multi-resident housing site and the installation cost of basic living facilities, the relevant gap shall be calculated by reflecting the relevant gap. The purport of reflecting the gap lies only in maintaining equity between those who purchase multi-resident housing site and those who purchase multi-resident housing site, but does not change the existence or scope of unjust enrichment to be returned to the project operator subject to the entire relocation measures by reflecting the gap rate. Thus, the difference rate to be reflected here should be the difference between the development cost of the entire multi-resident housing site and the sale price per unit area of the individual multi-resident

[4] In a case where Party B et al. sought a return of unjust enrichment on the grounds that the sale price of housing sites supplied by Party B et al. as a person subject to relocation measures includes the cost of basic living facilities under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the case holding that the amount actually paid by Party B et al. shall not be the principal sale price, but the amount calculated by deducting the overdue interest and the advance payment discount amount from the principal sale price, and the portion corresponding to the sale price unrelated to the construction of basic living facilities, among overdue interest and the advance payment discount amount reflected in the actual amount paid by Party B et al., shall not be considered as the amount of unjust enrichment or the remaining debt amount to be returned by the Corporation A et al.

[1] Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 2011); / [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. 11017, Aug. 4, 201); Articles 1, 2 subparag. 4 and 9 of the Act on Promotion of and Support for Water Reuse / [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. 11017, Aug. 4, 201); Article 741 of the Civil Act / [4] Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 17, 2011>

[1] Supreme Court Decision 2012Da97406, 97413 Decided November 14, 2013 / [3] Supreme Court Decision 2014Da6572 Decided August 20, 2014 (Gong2014Ha, 1801) Supreme Court Decision 2014Da8997 Decided October 15, 2015 (Gong2015Ha, 1653)

Attached List of Plaintiffs (Law Firm branch rate, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Young-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na41610 decided October 17, 2014

The Defendant’s appeal against the Intervenor 3 and the Intervenor 14 by the Intervenor 8 (Withdrawal) is dismissed in entirety. The part of the lower judgment against the Defendant against the Intervenor 1 and the Intervenor 5 (Withdrawal) is reversed, and that part of the case is remanded to the Seoul High Court. The costs of appeal between the Plaintiff 8’s Intervenor 3 and the Intervenor 14 and the Defendant are assessed against the Defendant. The costs of appeal between the Plaintiff 8’s Intervenor 4 and the Intervenor 4 are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s appeal against the Intervenor 3 and the Intervenor 4 succeeded by the Plaintiff (Withdrawal) 8

Since an appeal is seeking revocation or alteration of a judgment disadvantageous to himself/herself in favor of himself/herself, the appeal against the judgment of the court below in favor of him/her shall not be permitted as there is no benefit of filing an appeal. In such cases, even if there is a complaint for the reason of the judgment, there is no benefit of appeal (see Supreme Court Decision 91Da40696, Mar. 27, 1992, etc.).

According to the records, it is clear that the court below dismissed all the claims of the Plaintiff’s succeeding intervenors against the Defendant. Accordingly, the appeal filed by the Defendant against the Plaintiff’s succeeding intervenors is unlawful as there is no benefit of appeal.

2. As to the Defendant’s grounds of appeal against the Plaintiff (excluding the Plaintiff who withdrawn) and the Intervenor 1 and the Intervenor 5’s successor 5 (Withdrawal) (hereinafter in this paragraph, referred to as “Plaintiffs”)

A. As to whether the cost of housing site preparation is deducted from the cost of relocation measures

In a case where a project operator bears expenses equivalent to the difference as a result of supplying a housing site at a low price compared to a general housing site for relocation measures (hereinafter referred to as “resident relocation expenses”), if the cost of creating a housing site for a migrants who is supplied to a person subject to relocation measures is included in the relocation measures, it would result in an unfair consequence that the person subject to relocation measures should bear the cost of implementing the relocation measures. Therefore, the relocation measures cost should be deducted when calculating the cost of creating the housing site (see Supreme Court Decision 2012Da97406, 97413, Nov. 14, 2013, etc.).

For the reasons indicated in its holding, the lower court determined that among the project cost of the instant case, the relocation expense is the amount for which the migrants included business losses, etc. incurred by supplying the price lower than the development cost of the housing site, and determined that this part of the expenses is excluded from the calculation of the development cost of the instant housing site supplied to the person subject to the relocation measures, not the actual expenses incurred in creating the instant housing

According to the records, there is no evidence to deem that part of the site cost and development cost were deducted in calculating the total project cost of the housing site development project for the housing site in this case and appropriated as the relocation expense item. Thus, the relocation expense in this case is difficult to regard the relocation expense in this case as the actual constituting

In light of these circumstances, the judgment of the court below seems to be based on the above legal principles, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the cost of housing site formation and cost

The Supreme Court precedents cited in this part of the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

B. Regarding the scope of basic living facilities and their installation costs

1) The general legal doctrine on the burden of cost of basic living facilities

According to Article 78 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 2011; hereinafter “former Land Compensation Act”), a project operator shall either establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree to a person subject to relocation measures who would lose his/her base of livelihood as a result of the implementation of a public project to provide a residential building due to the implementation of the public project (Paragraph 1); and the details of the relocation measures include basic living facilities at an ordinary level, such as roads, water supply facilities, drainage facilities, and other public facilities, etc. in the resettlement settlement site; and the expenses incurred therein shall be borne by the project operator (main sentence of Paragraph 4)

2) As to water purification facilities

The lower court recognized that the costs of purifying water quality installed by the Defendant in the instant project district are included in the costs of installing basic living facilities, by deeming that the costs of purifying water quality are the kind of sewage treatment facilities for purifying water installed in the instant project district.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the scope of basic living facilities and their installation costs, contrary to what is alleged in the grounds of appeal.

3) As to used water services facilities

According to the Act on Promotion and Support of Water Reuse, in a case where the State, local government, or public enterprise newly constructs a specific type of facility above a certain scale or implements a specific development project, it is necessary to install and operate a heavy-water treatment system so that the State, local government, or public enterprise can reuse at least 10% of the water used (Article 9). Here, the term " heavy-water treatment system" refers to a facility that treats wastewater generated in an individual facility or an area created by a development project, etc., individually or locally, for reuse without discharging it into a public sewerage system (Article 2 subparagraph 4). The purpose of imposing the duty to install heavy-water treatment systems is to promote the sustainable use of water resources by promoting water reuse and to improve the quality of life of the people (Article 1).

Considering that the concept and function of the used-water treatment system and the purpose of the installation of the used-water treatment system can be seen as the facilities installed for water reuse within a limited range separate from the existing used-water and sewerage system, even if the used-water treatment system performs the functions of sewage treatment and water supply, it cannot be deemed as the basic living facilities to be provided to the person subject to the relocation measures, even though the used-water treatment system has a aspect of performing the functions of sewage treatment and water supply.

Nevertheless, the lower court determined otherwise on the grounds stated in its reasoning that the used waterworks constitutes a basic living facility, based on the reasoning that it is insufficient to regard the used waterworks as a basic living facility.

Therefore, the lower court erred by misapprehending the legal doctrine on the scope of basic living facilities, thereby adversely affecting the conclusion of the judgment.

4) As to capital cost

The lower court determined that it is reasonable to regard the part corresponding to the area of the establishment of basic living facilities as the cost of the basic living facilities, on the grounds that the Defendant calculated the total construction cost including the capital cost and calculated the sales price for each of the instant items based on the calculation.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the scope of installation costs of basic living facilities or by violating the Supreme Court precedents.

C. As to the method of applying the gap rate

Where a project operator separately determines the sale price of a resettled housing site by applying a gap within the scope of discretion, the development cost of the entire resettled housing site may be deemed to have been differentiatedly allocated to each resettled housing site in accordance with the conditions of the location. Therefore, when calculating the development cost of the individual resettled housing site and the installation cost of basic living facilities, the relevant gap shall be calculated by reflecting the relevant gap (see Supreme Court Decision 2014Da6572, Aug. 20, 2014). The purport of reflecting the gap lies only in maintaining equity among the persons subject to relocation measures who purchase the resettled housing site, and the existence or scope of unjust enrichment that the project operator shall return to all the persons subject to relocation measures due to reflecting the gap rate is not different. Thus, the difference rate to be reflected in this context should be the difference between the development cost of the entire resettled housing site and the sale price per unit area of the individual resettled housing site, which is the result of differential allocation between the amount of the development cost of

According to the reasoning of the judgment below and the evidence duly adopted by the court below, the defendant calculated the "area subject to the gap rate" by multiplying the unit price of supply for the part below 265 square meters, which is 265 square meters or less, among the multi-resident housing sites, by the gap rate calculated by comparing the unit price with the unit price (hereinafter "distance difference rate") in the area below the area supplied for the individual multi-resident housing site. The total sales amount calculated by multiplying the unit price for the whole area of the multi-resident housing site within the supplied limit by the unit price for the above supply is determined as the unit price for the individual multi-resident housing site, and the amount allocated according to the ratio occupied by the "area subject to the gap rate" in the total area of the multi-resident housing site to the "area subject to the difference rate" in the total area subject to the above unit price for the individual multi-resident housing site; ② However, the above unit price for the supply unit price does not coincide with the ratio of the unit price per unit area of the multi-resident housing site.

Examining these facts in light of the above legal principles, the gap rate to be reflected in the process of determining whether the cost of basic living facilities is included in the sale price of individual migrants housing sites should be the adjustment rate rather than the distance difference rate.

Nevertheless, the lower court calculated the total amount of cost of basic living facilities and the amount of unjust enrichment or remaining debt based on the sale price calculated by reflecting the remote rate. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of unjust enrichment resulting from the transfer of cost of basic living facilities, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

D. As to overdue interest or advance payment discount

The lower court calculated the difference as unjust enrichment to be refunded by the Defendant or as the remaining debt amount to be paid by the Plaintiffs compared with the sales price for which the costs of the basic living facilities are deducted.

However, the evidence duly admitted reveals that the amount actually paid by the Plaintiffs is not the principal of the sale price, but the amount calculated by adding overdue interest to the principal of the sale price and deducting the advance payment discount amount. As such, the part corresponding to the sale price unrelated to the construction of basic living facilities, out of the overdue interest or advance payment discount amount reflected in the actual amount paid by the Plaintiffs, cannot be deemed to have been gain or have been discounted by the Defendant without any legal grounds, and thus, the overdue interest or advance payment discount amount should not be considered in calculating the amount of unjust enrichment or the remaining amount of debt (see Supreme Court Decisions 2014Da11406, Aug. 20, 2014; 2014Da23065, Oct. 27, 2014).

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the calculation of unjust enrichment or the remaining debt due to the transfer cost of basic living facilities, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the Defendant’s appeals against the Intervenor 3 and 14’s Intervenor 8’s Intervenor 3 and 14 are all dismissed. Of the lower judgment, the part of the lower judgment against the Defendant as to the Intervenor 1 and 5’s Intervenor 2 by the Plaintiffs (excluding the withdrawing Plaintiff) and the Intervenor 4’s Intervenor 1 and 5’s Intervenor 5’s Intervenor 2 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The costs of appeal between the Plaintiff (Plaintiff)’s Intervenor 8’s Intervenor 3 and 14 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Kim Shin (Presiding Justice)