2016Da51194 Return of Fraudulent Gains

2016Da51200 (Consolidated) Undue gains

Appellant, Appellant

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

1. R:

2. K;

3. DJ;

4. Dl;

5. DM;

6. DO;

7. D. Q.

8. DT;

9. DW;

Korea Land and Housing Corporation

Seoul High Court Decision 2012Na105323, 2012Na10530 decided November 3, 2016

2) Judgment

March 15, 2017

Of the lower judgment, the part of the lower judgment against Plaintiff CM, DC, HK, EP, GI, GJ, and Plaintiff (Withdrawal)’s succeeding Intervenor is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the remaining Plaintiffs and succeeding Intervenors are dismissed.

The costs of the remaining plaintiffs and successors except for the Intervenors succeeding to CM, DC, HK, EP, GI, GJ, and Plaintiff (Withdrawal) shall be borne by the rest of the plaintiffs and successors.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Claim concerning the amount of the sale price paid by the Plaintiff CM, DC, HK, EP, GI, GJ, and Plaintiff (ex officio) to the succeeding Intervenor DP (hereinafter “Succession Intervenor DP”).

(1) A confession binding under Article 288 of the Civil Procedure Act is limited to a confession in court. A confession in court refers to a confession in court, and a confession in court refers to a statement of facts unfavorable to himself/herself, consistent with the allegations of the other party alleged in the date for pleading or the date for preparatory pleading (see, e.g., Supreme Court Decision 95Da37988, Dec. 20, 1996). Even in cases where the content corresponding to a confession in the reply or briefs submitted to the court and delivered to the other party, if such confession is made on the date for pleading or

(2) Based on the judgment of the court of first instance, the court below determined that: (a) Plaintiff CM paid 208,160,000 won out of 209,558,710 won after settlement until June 5, 2008; (b) Plaintiff DC paid 200,787,000 won out of 201,907,110 won after settlement until 2010,82; (c) Plaintiff HK paid 206,597,280 won after settlement until April 22, 2009; (d) Plaintiff 306,515,00 won out of 206,515,00 won out of 207, 306, 306, 306, 207, 200, 306, 307, 201, 306, 207, 2014, 2015, 207.

(3) However, we cannot agree with the judgment of the court below for the following reasons.

According to the records, the defendant stated the purchase price paid by the plaintiffs and the succeeding intervenors through a preparatory document dated January 21, 2014, stated at the third date for pleading ( February 27, 2014) of the court below. Among them, the plaintiff CM stated the purchase price of 209,558,710 won after settlement until February 4, 2013, the total purchase price of 201,907,110 won after settlement until November 12, 2012, the total purchase price of 206,597,280 won after settlement until May 4, 201, and the total purchase price of 206,597,280 won by the plaintiff HK stated at the third date for pleading of the court below, the remaining part of the purchase price of 209,595,170 won after settlement by May 30, 2011, and the purport of the plaintiff J 27, 2018.

Thus, the plaintiff CMF, DC, HK, EP and successor intervenors paid the sales price after the settlement, and the plaintiff GI and GJ paid more than KRW 210,647,930 as recognized by the court below, and the court shall be bound by this.

Nevertheless, the lower court deemed otherwise, that Plaintiff CM, DC, HK, ES, GI, GJ, and successor Intervenor did not pay part of the sale price after settlement, or paid less than the amount recognized by the Defendant, there is no amount of unjust enrichment that is to be returned to Plaintiff EP and successor Intervenor DP. In so doing, the lower court calculated and said amount of unjust enrichment that is to be returned to Plaintiff CM, DC, HK, GI, and GJ was insufficient. In so doing, the lower court erred by misapprehending the legal doctrine on confession in court, thereby adversely affecting the conclusion of the judgment (in the case of Plaintiff GI and GJ, there is room to view that the sale price was paid in full after settlement in light of the fact that ownership was transferred to the housing site of migrants that was sold from the Defendant on July 28, 2014).

B. Claim on the method of calculating unjust enrichment

As requested by the Plaintiff, the lower court calculated the amount of profit in installments by deducting the legitimate sale price of the migrants who purchased the housing by the Plaintiffs from the sale price paid by the Plaintiffs, and therefore, it cannot be accepted the allegation in the grounds of appeal purporting that the lower court erred by misapprehending the legal doctrine on the method of calculating unjust enrichment.

2. Regarding ground of appeal No. 2

Based on its stated reasoning, the lower court determined that the remainder of the station squares, integrated energy supply facilities, power supply facilities, broadcasting and communications facilities, excluding the intersection squares that can be seen as part of roads among traffic squares, cannot be deemed as basic living facilities.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence admitted by the lower court, the above measures are justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the

3. As to the third ground for appeal

Based on its stated reasoning, the lower court determined that the cost of creating the basic living facilities is KRW 242,56,482,865, and that the construction cost of the 1/2 and the 2nd sections of the 2nd underground street construction cost and the 3rd sections high level construction cost of the 3rd sections are not included in the cost of installing the main living facilities.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence admitted by the lower court, the lower court’s aforementioned measures are justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation

4. As to ground of appeal No. 4

The lower court determined that the direct personnel expenses, sales expenses, general management expenses, and capital expenses for basic living facilities in the instant housing site development project district were KRW 42,185,58,500 in total.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence admitted by the lower court, the above measures are justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the

5. Conclusion

Of the lower judgment, the part of the lower judgment against Plaintiff CM, DC, HK, EP, GI, GJ, and successor Intervenor DP is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by the Plaintiffs and successor intervenors are all dismissed, and the costs of appeal by the remaining Plaintiffs and successor intervenors except Plaintiff CM, DC, HK, EP, GI, GI, and successor Intervenor DP are assessed against the losing parties. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik, Counsel for the defendant

Justices Park Byung-hee

Chief Justice Park Jong-young

Justices Kim Jong-il

Attached Form

List of the Plaintiffs and the Intervenor

1. T:

2. V:

3. W.

4. HB;

5. Y;

6. J;

7. AD;

8. AE;

9. AJ;

10. AK;

11. AM;

12. AO.

13. AP;

14. AS;

15. AU;

16, AW

17. AY;

18. BA

19. BE.

20. HC.

21. BG

22. BH

23. HD;

24. BJ

25. BK

26.M.

27.BO

28. B Q.

29. HE.

30.BS

31. The Intervenor’s Intervenor to the Plaintiff (Withdrawal)

32.BU

33. BX

34.BZ.

35. CA;

36,CC

37. CE

38. Plaintiff (Withdrawal) Intervenor L.

39. CG.

40. CJ

41. CI

42, CK

43. HF

44.M

45.CO.

46. CT

47. CV

48. CX

49. CY

50.DA

51.C

52.DE

53. HG.

54.DG

55.Z. DZ.

56. H

57. HI

58. HJ

59. Intervenor’s successor to the Plaintiff (Withdrawal) DJ DK

60. HK;

61. HL;

62. HM;

63. HN

64. HO;

65. Intervenors succeeding to the Plaintiff (Withdrawal) CO1

66. EB

67. ED.

68. Plaintiff (Withdrawal)’s Intervenor DM’s Intervenor N

69. EF

70. The Intervenor’s successor to the Plaintiff (Withdrawal) DADP

71. EH;

EJI

73. El;

74. EN

75. EP;

76. HP;

77. Plaintiff (Withdrawal) DDR by the Intervenor succeeding to Q

78. ER;

79. EW

80. EY.

81.FA

82. The plaintiff (Withdrawal)'s successor to DT DU

83.FC (former name: H Q);

84.FE

85.FG.

86. M

87.FJ

88. FL;

89.FN

90.FP

91.FR

92.FT

93.FU

94.FW

95. HR

96. FX

97. Intervenors succeeding to Plaintiff (Withdrawal)DW

7) CW

4. DX;

98.FZ.

9. GB

100. GD

101. GF

102. GG

103. GI

104. GJ

105. HS

106. GL

107. GO

108 HT

109. HU

10. GR

111. GT

12. HV

13. HW

14. GV

15. GW

16. GY

Finally.

1) Plaintiffs 45. CO and the same person.