[1] In a case where an executor of a public project specially supplies a house to a person subject to relocation measures and sets out a housing site cost more than the cost of creating a housing site without considering the cost of basic living facilities, whether the total cost of basic living facilities can be deemed to have been transferred to the person subject to relocation measures (affirmative)

[2] In a case where a road installed in a public project zone cannot be deemed as an essential facility for the achievement of functions of a housing complex, etc. in the project zone and the passage of all residents, whether the operator of the public project is included in the basic living facility that requires relocation measures (negative)

[3] The requirements and scope of the cost of housing site development to be included in the cost of basic living facilities and the burden of proof (=person claiming that the cost of basic living facilities is the cost of basic living facilities)

[1] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007) / [2] Article 78 (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 2 subparagraph 8 (see current Article 2 subparagraph 10) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) / [3] Article 78 (1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Article 288 of the Civil Procedure Act

[2] [3] Supreme Court Decision 2014Da8997 Decided October 15, 2015 (Gong2015Ha, 1653) / [2] Supreme Court Decision 2012Da3303 Decided September 26, 2013 (Gong2013Ha, 1937), Supreme Court Decision 2013Da29509 Decided July 23, 2015 (Gong2015Ha, 1202) / [3] Supreme Court Decision 2014Da85391 Decided July 9, 2015 (Gong2015Ha, 1132)

Plaintiff 1 and five others (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Sungnam-si et al. (Law FirmMai et al., Counsel for the defendant-appellant)

Supreme Court Decision 2012Da47272 Decided November 28, 2013

Seoul High Court Decision 2013Na80384 decided January 29, 2015

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. The Defendants’ appeals are dismissed, respectively.

The grounds of appeal are examined.

1. As to whether the housing site development cost is excluded from reserve funds, some underground lanes, bridges, and tunnels construction cost

A. In a special supply contract for housing or housing concluded between a person subject to relocation measures and a project operator, if a person subject to relocation measures paid a project operator the basic cost of living facilities as stipulated in 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 Land Compensation Act”), thereby including the cost of living facilities in the sale price, thereby making the person subject to relocation measures paid the cost of living facilities to the project operator, the portion that included the cost of living facilities in the sale price in the special supply contract is invalid as it violates Article 78(4) of the former Land Compensation Act, which is a mandatory law (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

On the other hand, if a project operator specially supplies a house to a person subject to the relocation measures and determines the cost of the housing site as more than the cost of the basic living facilities without considering the cost of the basic living facilities, the total cost of the basic living facilities is deemed to have been transferred to the person

B. In light of the above legal principles, in this case, where the plaintiffs sought a return of unjust enrichment on the basis that the cost of basic facilities was paid to the sale price of a house that received special supply, the court below is justifiable in calculating unjust enrichment by means of multiplying the cost of basic facilities by the area of the right to a site of a house that was specially supplied by the plaintiffs. According to the method of calculating unjust enrichment as above, the cost of housing site creation does not constitute an element for calculating unjust enrichment, and the cost of housing site creation does not constitute an element for calculating unjust enrichment, and the cost of housing site creation is excluded in cases where part of the cost of housing site development is excluded from the cost of housing site development, and the cost of housing

Therefore, this part of the ground of appeal that the construction cost of a housing site should be excluded from the reserve fund, part of underground tea, bridge, or tunnel construction cost, is nothing more than the assertion of the grounds for appeal that cannot affect the conclusion of the judgment, and it cannot be accepted as it constitutes an unfavorable argument against the person himself/herself.

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

A. As to the State-funded local highways and subdivisions-high speed roads between internal grains, and national expressways

A road for which a project operator is required to provide a basic living facility to a person subject to relocation measures, notwithstanding its length or width, includes a road corresponding to an arterial facility defined in Article 2 subparag. 8 of the Housing Act, that is, a road that connects a road outside the relevant housing complex to a road of the same kind outside the relevant housing complex (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road installed by a project operator in a public-service zone and is also included in a road that connects the entrance of a housing complex, etc. within the relevant housing complex and other roads outside the relevant project district, but is not included in a basic living facility, except in extenuating circumstances where it cannot be deemed an essential facility for the achievement of functions, such as a housing complex, and for the passage of all residents (see Supreme Court Decision 2013Da29509, Jul. 23, 2015).

Examining the reasoning of the judgment below in light of the above legal principles and records, although the reasoning of the judgment below is somewhat inappropriate, the court below's conclusion that the State-funded local highways and local roads established in the project district of this case and the local roads established in the project district of this case-funded local roads fall under the basic living facilities, and the Gyeong-Seoul metropolitan Highway does not fall under the basic living facilities, and it is just to accept the judgment below's conclusion that it does not fall under the basic living facilities. In so doing, it did not err by misapprehending the legal principles as to the scope of basic living facilities and unjust enrichment, inconsistent reasoning, and

B. Regarding the expenses incurred in the items of roads, packings, street lamps, underground parking roads, tunnels, bridges, bridges (river bridges, etc.)

(1) The lower court determined that only the amount equivalent to the percentage of the road area, which is the basic living facilities for the total road area in the instant project zone, among the construction cost of the road, appropriated as the construction cost of the housing site on the premise that the remainder of the road area, other than the motorway, among the total road area in the instant project zone, constitutes the basic living facilities, shall be included in the construction cost of the basic living facilities.

(2) However, it is difficult to accept the above judgment of the court below for the following reasons.

According to the evidence duly adopted by the court below, among the measures for metropolitan transportation, ① the portion of the cost of construction of underground roads or the cost of construction of underground roads, tunnels, bridges, and bridges (rivers) which is counted into the cost of construction of living facilities by asserting that the name of the project operator should be excluded from the cost of construction of basic facilities and that the joint project operator of the project in this case, including the defendants, bears the amount of KRW 40 billion out of the construction cost. ② The defendants include the expenses of KRW 440 billion in the items of the "Yok-Fe-Fe-F" in addition to the construction cost of the road related to the construction cost of the road. ③ The defendants indicated the detailed details of the construction cost of the road, including underground roads, tunnels, bridges, and bridges, which are counted into the cost of construction of the housing site, by asserting that the cost of construction of the road is excluded from the cost of construction of basic facilities. According to the details, it can be found that the construction cost of the road and the convenience Seoul Highway are not fully used.

Nevertheless, the lower court did not properly examine the construction cost related to the construction cost of a road and determined that only part of the construction cost related to the construction cost of a basic facility is included in the construction cost of a living facility. However, in calculating the construction cost of a housing site, the “road, packing, and street construction cost” included only the amount equivalent to the percentage of the road area, which is the basic living facility for the entire road area, while the “road, tunnel, bridge, bridge, and bridge construction cost” included the total amount of the construction cost.

In so determining, the lower court erred by misapprehending the legal doctrine on the scope of installation costs of basic living facilities, thereby adversely affecting the conclusion of the judgment.

C. As to the costs of building construction, cultural heritage inspection and excavation, wild tree planting construction, construction waste disposal, reserve items

(1) Of the cost of housing site development, the cost of the item included in the cost of the construction of the housing site is recognized as having been paid for the relevant cost of the cost of the construction of the basic living facilities, i.e., the cost of the cost of the construction of the basic living facilities. However, the cost of the basic living facilities is included in the cost of the basic living facilities within the scope of the ratio of the area of the basic living facilities to the total or total project area, and the burden of proof of the relevant relationship is deemed as the cost of the item to be the cost of the basic living facilities (see Supreme Court Decision 2014Da8

(2) Examining the records in light of the above legal principles, we affirm the judgment below that the expenses of structures, cultural heritage investigation and excavation expenses, wild tree planting construction expenses, and construction waste disposal items are not included in the cost of establishing basic living facilities on the grounds as stated in its reasoning. In so doing, the court below did not err by misapprehending the legal principles as to the scope of the cost of installing basic living facilities, as otherwise alleged in the

(3) However, although the lower court determined that the cost of the reserve fund item does not constitute the cost of installing the basic living facilities, it is difficult to accept such determination by the lower court for the following reasons.

According to evidence duly admitted by the court below, since the cost of reserve fund item is an item of expenses appropriated in preparation for unexpected construction work at the time of calculating the cost of building a housing site among the construction works for building a housing site, it is reasonable to deem that the expense of building a basic living facility equivalent to the ratio corresponding to the size of building a basic living facility out of the total project area due to the nature of the expenditure item falls under the cost of building a basic living facility. Therefore, the court below erred by misapprehending the legal principles on the scope of

3. Conclusion

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

Justices Park Sang-ok (Presiding Justice)