208Gaz. 17765 Compensation for damages (as referred to in this paragraph)

The list of plaintiffs in the attached Table (Omission) is as shown in the attached Table.

Attorney Seo Jae-ok, Counsel for the plaintiff-appellant

DD Construction

Attorney Shin Young-chul, Counsel for the defendant-appellant

November 27, 2008

January 8, 2009

1. The plaintiffs' claims are dismissed.

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

The defendant shall file a complaint in this case against the plaintiffs from June 22, 2006 with respect to each of the above 190,000 won and each of the above amounts.

Until the service date of a duplicate, 5% per annum and 20% per annum from the next day to the day of complete payment.

d. Payment of money:

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking account of the whole purport of the pleadings in Gap evidence 1, Eul evidence 2-1 to 529, Gap evidence 4, 5, Gap evidence 6, Eul evidence 7-1 to 8, Eul evidence 2-1, 2, Eul evidence 3, Eul evidence 4-1, 2, and 3.

A. On July 24, 2002, the Defendant obtained on July 24, 2002 approval from the head of the Dong-gu Busan Metropolitan City, from the head of the Gu of Busan Metropolitan City for the construction project plan to newly build and sell an apartment of 4 households with a total floor space of 72,464, and 530 square meters and ancillary welfare facilities with a total floor space of 18,068 square meters.

B. Subject to the above approval of the project plan, set-back (on the side of the project site, set adjacent to the 30m existing road in the project site - Bback (on the rear side of the road), a relaxed lane that can facilitate the entry into the apartment (i) 3.0m in length, 81.0m in length, 81.0m in length, 3.5m in length, 81.0m in length, 81.0m in length, 2. a road for the simplification of entry: set: set - 3.0m in length, 66.0m in length, 66.0m in length, 3.5m in length, 6.5m in length, 66.0m in length, and 6.0m in length) was included prior to the inspection of traffic impact conducted by the Busan Metropolitan City Deliberation Committee on Traffic Impact (after Busan Metropolitan City, the Busan Metropolitan City Mayor notified the approval of any change to install traffic at least 54m in length.

C. At the time of deliberation of traffic impact assessment, a set set of 3.0 meters in width within the project site - a sidewalk formed on the existing road by back was decided to change the sidewalk to a roadway, and a new sidewalk was installed in the project site. Accordingly, the Defendant, while installing a alleviated lane, installed a sidewalk on the project site 436.6 meters in the project site (hereinafter referred to as "land in dispute").

D. On July 25, 1997 with respect to the above apartment, the registration of preservation of ownership in the name of the defendant was completed, and the above project site was registered as the site of the sectional household.

E. The Plaintiffs received the above apartment from the Defendant and completed the registration of ownership transfer.

F. The head of Suwon-gu Busan Metropolitan Government on June 26, 2006 at the council of occupants' representatives of the above apartment.

21. As a result of reviewing the "request for reduction or exemption of property tax on the land incorporated into the reported land", it was presented that it will be currently used as a private road and thus exempted from taxation.

2. Determination

A. Although the defendant has a duty to notify that part of the apartment site will be incorporated into a report at the time of sale and will be offered to the general public, the defendant did not notify it, so he did not receive excessive sales price including the amount of money for the dispute land, which is virtually impossible to exercise property rights from the plaintiffs, and therefore, he/she is obliged to pay the amount equivalent to the market price of the dispute land as a result of compensation for damages or a return of unjust enrichment based on the tort.

B. 1) In cases where it is evident in light of the empirical rule that the other party to a transaction would not have been notified of certain circumstances in real estate transactions, it is obligated to notify the other party of such circumstances in advance in accordance with the principle of good faith, and such failure to notify the other party of such circumstances constitutes a tort.

On the other hand, the defendant, as a result of the implementation of the traffic impact assessment, which is the condition of the approval of the project in this case, established a relaxed lane that can facilitate the entry into the apartment complex in this case, and installed a report for the general public's passage, including the residents in the land in the dispute on behalf of the existing sidewalk that is changed to the roadway. The size of the land in the dispute was 41% of the size of the site in the apartment site, which is 18,068 square meters, is not more than 2.41% of the size of the site in the apartment site, which is the apartment site, and even if the cultural property is designated, it seems to be known that the location or the type of the front part of the project site can be changed according to the designation of the cultural property, but it is difficult for the plaintiffs to be seen that there is no possibility of changing the urban planning road in the entrance and exit adjacent to the lane in this case. Therefore, in light of the facts and various circumstances acknowledged earlier, it is difficult for the plaintiffs to be subject to the duty of disclosure and the obligation to inform.

2) It cannot be said that the Defendant, a project developer who newly built and sold the apartment of this case, included the costs for building a alleviated lane, which is a condition for the approval of the project, in the sales price for the Plaintiffs, who are the buyers, and thus, acquired unjust profits. Therefore, the Plaintiffs’ assertion of unjust enrichment is without merit.

3. Conclusion

Therefore, the plaintiffs' claim against the defendant in this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-chul

Judges Nam Sung-woo

Judges Kwon Young-young