(영문) 대법원 2015.11.26.선고 2015다19063 판결

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 Defendant’s appeal is dismissed.

Reasons

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

1. Regarding the plaintiffs' grounds of appeal

(a) Expenses incurred in installing basic living facilities for a part of which the area of sale exceeds 265 meters;

According to the reasoning of the judgment of the court below and the records, the defendant shall supply the housing site for migrants based on 165m or 265m or 265m or 165m or 265m or 1 parcel of land in principle pursuant to the "Rules on the Establishment and Implementation of Relocation Measures of the former Korea Land Corporation": Provided, That this shall not apply where it is inevitable in consideration of the conditions of the relevant project district, such as the allocation of shares, the land utilization plan and the efficiency of land utilization, and the real estate market trend of the relevant region, and the supply price of the housing site is determined by comparing the amount obtained by subtracting the cost of basic living facilities according to the defendant's calculation method and the amount equivalent to 80% or 70% (Seoul Metropolitan area and Metropolitan City area) of the cost of the housing site development (other areas) of the housing site development project with the appraisal price for the excess portion.

Therefore, since the part supplied by the Defendant to the Plaintiffs, who are eligible for relocation measures, in excess of 265 square meters, is the same as the part supplied to the general buyers, not the contents of relocation measures, the installation cost of basic living facilities equivalent to the excess portion should be transferred equally with the general buyers. Therefore, it is reasonable to include the excess portion in the lawful sale price calculated at the appraisal price (see, e.g., Supreme Court Decisions 2012Da95325, Jan. 23, 2014; 2012Da203478, Feb. 13, 2014). In the same purport, the lower court is justifiable to have determined that the Plaintiffs should bear the installation cost of basic living facilities on an equal basis with the general buyers with respect to the portion supplied exceeding 265 square meters, which is the land supplied by the Defendant to the Plaintiffs, who are eligible for relocation measures. In so doing, contrary to what is alleged in the grounds of appeal by the Plaintiffs, there is no error

(b) Whether the retention area and the total business area of the reduced area are excluded;

(1) The lower court used the method of multiplying the total cost of the site or the cost of creating the basic living facilities by the total cost of the site or the cost of creating the basic living facilities - the total project area of the project. The lower court considered the entire project area of the instant project district, including the retention area of 26,550 meters and the reduction area of urban support facilities 198,714mi, as the total project area.

(2) According to the reasoning of the judgment below and the record, although the housing site development cost, which forms the basis for the determination of the sale price of the housing site of migrants, was not determined in the housing site development plan and implementation plan, among the urban support facilities site, the Defendant treated the area scheduled to be supplied without compensation as the primary infrastructure site, but excluded it from the temporary disposal area, and included it in the total project area. As the site corresponding to the above depreciation area is planned as the initial urban support facility site, the fact that the site cost and construction cost already spent are already spent can be revealed. Thus, the site corresponding to the depreciation area of this case is excluded from the site which is ultimately supplied with compensation but is supplied without compensation after the construction, it can be seen that the housing site development project of this case is included in the scope of implementation. If the depreciation area of this case is excluded from the total project area, the burden of expenses incurred in relation to the reduction area may also be increased by more than the ratio of the installation cost of the living facilities in the process of the entire project area. Therefore, it can be reasonable to calculate the above project area.

In the same purport, the judgment of the court below is just to determine that the area that the defendant handled as the decrease area is included in the total project area, and there is no error in the misapprehension of legal principles as to the calculation of the total project area and the calculation of the cost of the basic living facilities

(3) However, it is reasonable to exclude the area of the site from the total area of the project when calculating the cost of the basic living facilities according to the size of the site, in full view of the following: (a) the cost of the basic living facilities is determined by the method of calculating the cost of the site; (b) the cost of the basic living facilities is determined by the method of calculating the cost of the site; (c) the cost of the basic living facilities, other than the total area of the site, if the cost of the site is included in the total area of the site, would vary depending on the size of the site; and (d) the cost of the basic living facilities, etc., in calculating the cost of the basic living facilities, etc., should be excluded from the total area of the project (see Supreme Court Decision 2014Da85391, Jul. 9, 2015).

Nevertheless, the lower court erred by misapprehending the legal doctrine on the method of calculating the cost of installing basic living facilities, thereby adversely affecting the conclusion of the judgment.

For the reasons indicated in its reasoning, the lower court determined that only the portion of a square of 27,291m, excluding the portion of a square of 306,920m square, which is attached to a minor highway, within 349,107m of a traffic plaza within the instant project district, falls under the area of basic facilities for daily life.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the Plaintiffs’ grounds of appeal, there were no errors by misapprehending the legal doctrine regarding basic living facilities or by exceeding the bounds

D. In a case where a project proprietor, as to whether the basic facility area of a substation, gas supply facility, or integrated energy supply facility is included, supplied the site for the facility to a person who supplies electricity, gas, heating, etc. at least the cost of the site for the installation of the housing site, the site cost cannot be deemed to have been paid to the supplier of the said facility. As such, the site cost cannot be deemed to have been charged to the sale price (see, e.g., Supreme Court Decisions 95301, Jan. 16, 2014; 2012Da95325, Jan. 23, 2014).

The lower court acknowledged that the Defendant supplied the respective sites of substations, gas supply facilities, and integrated energy supply facilities to the Korea Electric Power Corporation that supplies electricity, gas, and heating to the instant project district at least the housing site development cost, and rejected the Plaintiffs’ assertion that each of the above sites should be included in the area of the main facilities for living, on the ground that there is no evidence to deem that the Defendant had paid the site cost to the Plaintiffs, including the sale price.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the plaintiffs' grounds of appeal, there were no errors of misapprehending the legal principles regarding basic living facilities or exceeding the bounds of the principle of free evaluation of evidence.

E. (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 road area in the instant project zone, falls under the basic living facilities on the premise that the remaining part of the road area, excluding motorways, among the total road area in the instant project zone, constitutes the road that is the basic living facilities, the cost of creating the housing site is included in the cost of creating 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 records, it is clear that the 'Yuk-Jak-Jak-do' whose name has been changed to the Yongsan-Seoul Highway is constructed by another private business operator who is not the project operator of this case, but the co-implementers of the project of this case, including the defendant, including the defendant, bear the 40 billion won out of the construction cost, and the defendant appropriates the 440 billion won cost for the items of the 'Y Young-Jak-Jak-Jak' in addition to the construction cost related to the road related to the road, in addition to the construction cost related to the road, the construction cost related to the road is not unrelated to the construction of the Gyeong-Jak-Seoul Expressway and the construction cost related to the road, the total amount of which

Nevertheless, the court below, without properly examining this, included only the amount equivalent to the ratio of the road area, which is the basic living facilities for the entire road area, among the costs of installation of roads, packaging and street lamps, for the reasons stated in its reasoning, in the cost of installation of basic living facilities.

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.

(f) Whether the cost of basic living facilities related to metropolitan transport facilities is included;

In addition to the purport of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8251, Jan. 19, 2007), the charges for intercity transport facilities only imposed in metropolitan areas are required for the construction and improvement of intercity transport facilities in metropolitan areas and are imposed on the project operator by the Mayor/Do Governor for the cost incurred in increasing the value of the housing sites and housing in metropolitan areas. In light of the fact that those subject to relocation measures provided with a housing site for migrants in metropolitan areas have profits from the construction and improvement of intercity transport facilities, the charges for intercity transport facilities cannot be deemed as falling under the cost of installing the main facilities to be provided to those subject to relocation measures as a basis for their life (see, e.g., Supreme Court Decisions 2012Da84233, Jan. 23, 2014; 2012Da87492, Mar. 13, 2014).

In the same purport, the court below is just to exclude the cost of dealing with metropolitan transport from the cost of creating the basic living facilities, and there is no error of law by misapprehending the legal principles on the cost of installing the basic living facilities as alleged in

(g) Whether the installation costs of basic living facilities are recognized for structures and the reserve fund;

(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, namely, the relationship between the cost of the cost of the construction of the basic living facilities and the cost of the cost of the construction of the basic living facilities, but the cost of the basic living facilities is included in the cost of the basic living facilities within the ratio of the area of the basic living facilities to the total or total project area, and the burden of proof of the relevance is on the part of claiming that the cost of the item is the cost of the basic living facilities (see

(2) Examining the records in light of the above legal principles, the court below is just in holding that the cost of installing basic living facilities is not included in the cost of installing basic living facilities on the grounds as stated in its reasoning, and it does not err in the misapprehension of legal principles as to the scope of cost of installing basic living facilities

(3) However, the lower court determined that the cost of the reserve fund is not included in the cost of the basic living facilities. However, such determination by the lower court is difficult to accept for the following reasons. According to evidence duly admitted by the lower court, the cost of the reserve fund item is an item of the cost calculated in preparation for unexpected construction works from among the construction cost of the housing site preparation works. As such, it is reasonable to view that the cost of the reserve fund item constitutes the cost of the construction of basic living facilities equivalent to the ratio corresponding to the size of the construction cost of the basic living facilities out of the total project area in the nature of the expenditure item. Therefore, the lower court erred by misapprehending the legal doctrine on the scope of the

H. Whether the gap rate is applied in calculating unjust enrichment

Where a project operator separately determines the sales price of a resettled housing site by applying a gap within the discretionary scope, 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. As such, when calculating the development cost, basic living facilities installation cost, and reasonable sales price for the individual resettled housing site, the relevant gap shall be calculated by reflecting the relevant gap (see, e.g., Supreme Court Decisions 2014Da1406, Aug. 20, 2014; 2014Da6572, Aug. 20, 2014).

According to the reasoning of the judgment below and the record, the defendant set the unit price for supply of housing sites to be sold to the person subject to relocation measures not exceeding 265m of the housing site development project district of this case, which is specially sold to the person subject to relocation measures pursuant to the "established Rules on the Establishment and Implementation of Relocation Measures", as 1,691,804 won per meter, and then calculates the applicable area of the gap rate by multiplying the gap rate by the difference rate calculated by comparing individual location conditions of each housing site of this case compared with the reference land, and then calculates the amount of the differential rate by multiplying the total amount applied to the development cost by the ratio of the applicable area of the gap rate of the relevant housing site to the total amount applied to the development cost, and then

In light of the above legal principles and the above facts, it is reasonable that the court below calculated the gap rate applied by the defendant in calculating the selling price in determining the legitimate selling price for the purpose of calculating the selling price. There is no error of law by misapprehending the legal principles on the calculation of unjust enrichment or by violating the principle of pleading.

2. As to the Defendant’s grounds of appeal, the roads that a project implementer should provide a living-based facility to a person subject to relocation measures include both the roads corresponding to the arterial facility prescribed in Article 2 subparag. 8 of the Housing Act, i.e., the roads located outside the relevant housing complex, notwithstanding their length and width (see Supreme Court Decision 2012Da3303, Sept. 26, 2013) and all the roads connecting the roads located outside the relevant housing complex to the roads located outside the relevant housing complex (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). Except in extenuating circumstances, a road installed within a public-service zone by a project implementer, which is an essential facility for the achievement of functions of the housing complex, etc. and the passage of the entire residents within the housing zone (see Supreme Court Decision 2013Da29509

Examining the reasoning of the judgment below in light of the above legal principles and the records, it is just to determine that each state-funded local highway or local highway established within the project district of this case constitutes a basic road for living, and there is no error in the misapprehension of legal principles as to the scope of roads included in the basic living facilities, contrary to what is alleged in the defendant's ground of appeal.

3. Conclusion

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