(영문) 울산지방법원 2013.2.6.선고 2011가합7099 판결

1. The Defendant shall pay to the Plaintiffs listed in the column of “Plaintiff” in the attached Table 1, the amount calculated by applying the respective rates of 5% per annum from the date of entry in the column of “the initial date of interest” to November 7, 201, and 20% per annum from the following day to the date of full payment.

2. The plaintiff's claim against the defendant is dismissed.

3. Of the costs of lawsuit, the part arising between Plaintiff I and the Defendant shall be borne by Plaintiff I, and the remainder between the Plaintiffs and the Defendant shall be borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

Order 1 Paragraph 1 and the defendant shall be from June 27, 2006 to June 27, 2006 to Plaintiff I, as well as from 5,780,490 won.

11.7. 5% per annum and 20% per annum from the following day to the date of full payment.

L. D. Payment of money.

Reasons

1. Basic facts

A. Nonparty 0’s land rearrangement association (hereinafter “the instant association”) obtained authorization for the implementation of a land rearrangement project and establishment of an association from A1 August 14, 1998.

B. On August 31, 1999, the head of LLP 2 (hereinafter referred to as the "head of the PP headquarters") imposed charges of 8,817,841,980 won on the union of this case under Article 32 of the former Sewerage Act (amended by Act No. 6451 of March 28, 2001) and Article 24 of the former Ordinance on the Use of Sewage (amended by Ordinance No. 330 of September 30, 199). The union of this case imposed charges of 8,817,841,980 won on the charges of sewage treatment facilities. The union of this case revoked the above disposition on April 19, 200 by raising an administrative appeal against this. On May 15, 2000, the head of the PP headquarters again imposed charges of 5,731,776,90 won on the union of this case and finally imposed charges on the union of this case upon request for adjustment of the charges.

C. The plaintiffs were owners who newly built each building (hereinafter referred to as "the building of this case") after purchasing each land from the association of this case as shown in the attached Table 2 table. In the process of obtaining the building permit, the plaintiffs received from the head of the PP agency the disposition of imposing the burden of sewage burden (hereinafter referred to as "the disposition of this case") as stated in the attached Table 2, and paid the charge of imposing the burden of sewage burden on each due date (hereinafter referred to as "the charge of imposing the burden of sewage of this case"), and the charge of imposing the burden of sewage by each due date was all attributed to the defendant's special account of sewerage.

[Grounds for Recognition] Unsatisfy, Gap 1-4, Eul 1-7 evidence, and the purport of the whole pleadings

The plaintiffs asserted that the association of this case, which corresponds to other actors under Article 32 (2) of the former Sewerage Act (amended by Act No. 6451 of Mar. 28, 2001), is not a person liable for the payment of the amount borne by the sewerage, since the association of this case fully paid the amount borne by the amount borne by the sewerage, the plaintiffs who individually purchased the land from the association of this case and constructed the amount individually. The disposition of this case is a disposition illegally issued against a person who is not a person liable for the payment of the amount borne by the sewerage, and thus, the defendant is obligated to return the amount borne by the

On May 20, 2002, the Defendant imposed a sewage burden on the basis of the sewage generation amount on the instant cooperative based on the basic or shop design report, and the above report calculated the sewage generation amount by reflecting only 24,500 resident population in the apartment house and detached house site. The Plaintiffs, who purchased the housing site created by the said association, discharged wastewater more than the originally anticipated sewage generation amount than the initially anticipated sewage generation amount in light of the purpose and scale of use and apartment house and detached house as a neighborhood living facility. Thus, the Defendant asserted that imposing each of the instant charges on the Plaintiffs regarding the sewage generation amount exceeding the head of the P agency is lawful, and that the Plaintiffs’ claim for return of unjust enrichment is groundless.

3. Relevant statutes;

Attached Form 3 is as shown in the relevant Acts and subordinate statutes.

4. Determination

A. Whether each of the dispositions of this case is unlawful and invalid

Article 32(2) and (5) of the former Sewerage Act and Article 61(2) of the former Sewerage Act (amended by Act No. 10893, Jul. 21, 2011; applicable to Plaintiff I) provide that all or part of the expenses incurred in the construction of the public sewerage required due to other acts (other acts than construction acts affecting the public sewerage) shall be borne by the other acts. The former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 23464, May 14, 201); Article 25(2)2 of the former Ordinance on the Use of the Public Sewerage Act (amended by Ordinance No. 961, Jan. 10, 201; Ordinance No. 2421, Feb. 24, 2011; Ordinance No. 23464, Jan. 14, 2012); Ordinance No. 24(2) and Article 61(2) of the former Ordinance No. 1361, Jan. 1, 2012.

However, the projects listed in the above-mentioned Enforcement Decree of the same Act as the former Sewerage Act, and the ordinance on the use of the A1 sewerage of each Gu are relatively large development projects that establish and implement a comprehensive plan for a group of land, and in such development projects, to achieve the purpose of development.

Pursuant to the plan, the project shall be implemented in accordance with the plan, and the basic or working plan report on the project shall be calculated by calculating the amount of sewage expected to be generated or increased in consideration of various circumstances, such as the anticipated resident population, mobile population, purpose of land use and site for each type of business, etc., in the event the project is implemented, and the expenses incurred by the project operator in bearing the amount borne by the amount borne by the project shall be included in the total development cost, and if the housing site, commercial land, etc.

In light of the relevant statutes and ordinances and the nature of other acts, requiring other actors to bear all the expenses incurred in construction on the public sewerage system caused by other acts is to have the project implementer, who is another participant who created the cause, bear the expenses incurred in the construction of the public sewerage system necessary for treating sewage expected to be generated by the project corresponding to other acts, as such, the purpose of the urban development project project implementer’s project implementer’s burden of the expenses incurred in the construction of the public sewerage system necessary for treating sewage that is anticipated to be generated by the project. Therefore, if a building is constructed on a parcel of land created by a project corresponding to other acts under the Sewerage Act

Unless there are special circumstances, the owner of a building, etc. shall be deemed not to separately bear the burden of borne by the burden (see Supreme Court Decisions 2003Du6849, Sept. 24, 2004; 2010Du7604, Oct. 11, 2012, etc.).

In this case, the zero land readjustment project corresponds to other acts prescribed by the former Enforcement Decree of the same Act, the former Enforcement Decree of the same Act, and the former Ordinance on the Use of Sewerage due to an urban development project under the former Land readjustment Project Act. The fact that the association of this case, which is the other participant, paid the cost of public sewerage construction necessary for the treatment of sewage anticipated to be incurred from the project as the cost of sewerage burden is as seen above. Thus, if the plaintiffs constructed each building in accordance with the size and purpose stipulated in the project plan of the land readjustment project, the head of P office cannot separately impose the burden on

As to whether the instant building constructed as shown in the attached Table 2 by the Plaintiffs exceeded the size and purpose stipulated in the plan for the land readjustment project of 0, and as to whether the instant building was a building exceeding the size and purpose stipulated in the plan for the land readjustment project of 0, in full view of the overall purport of the instant argument as a result of the fact inquiry by the court on Chapter A1 P (i.e., November 17, 201 and April 9, 201) by the overall purport of the instant argument, it can be recognized that the instant building conforms to the standards for the area, building-to-land ratio, and usage stipulated in the Urban Planning Ordinance and the Building Ordinance of A1, and that the building was constructed lawfully after obtaining a building permit. Thus, barring any special circumstance, it can be recognized that the said building did not deviate

In regard to this, the Defendant asserts to the effect that the sewage burden-bearing entity finally imposed on the instant association is calculated and imposed on the amount of sewage generation based on 24,500 resident population premised on the development of apartment houses and detached houses, and that the individual buildings constructed by the Plaintiffs are relatively high for sewage generation using relatively large number of people as neighborhood living facilities, and that they exceeded the prescribed size and purpose of use in the said project plan.

However, even if the sewage burden burden imposed on the instant association is calculated on the basis of 24,50 resident population premised on the development of apartment houses and private housing site, it cannot be deemed that all buildings are limited to the purpose of apartment houses or private housing. Rather, according to the purport of the entire argument of this case, it is acknowledged that the Defendant did not limit the land to be purchased by the Plaintiffs at the time of approving the above project plan of the instant association only for the purpose of constructing a detached house or common house. Thus, the circumstance that individual buildings constructed by the Plaintiffs are relatively high compared to housing as residential facilities is that the Defendant should have considered when approving the land readjustment project of this case or the head of the PP office imposed a sewage burden on the instant association, and the building of this case did not deviate from the size and purpose stipulated in the original project plan, so long as all of the expenses borne by the Plaintiffs were paid as seen earlier, the reason for imposing the sewage burden should be objectively null and void, and it should be deemed that the Defendant’s duty of imposition of the charges is not objectively invalid.

B. The Defendant’s obligation to return unjust enrichment 1) The Defendant’s obligation to return unjust enrichment

The Defendant is obligated to return the amount borne by the Defendant to the Plaintiffs for unjust enrichment on the grounds that the Defendant acquired the amount borne by the sewerage without any legal ground upon the instant disposition that is null and void as a matter of course, and incurred losses equivalent to the same amount to the Plaintiffs. 2) The Defendant’s defense of extinctive prescription as to Plaintiff I’s claim

Since the defendant's defense that the claim for return of unjust enrichment by the plaintiff was extinguished by the prescription period, the prescription period for the plaintiff's claim for return of unjust enrichment has expired unless it is exercised for five years (Article 82 (2) of the Local Finance Act). The plaintiff paid KRW 5,780,490 to the sewerage charge on June 26, 2006 as mentioned above. The fact that the lawsuit in this case was filed on October 28, 201, which was five years after the lawsuit in this case was filed, is obvious in the record, and therefore, the plaintiff [the defendant's claim for return of unjust enrichment against the defendant has expired by the prescription period, and the defendant's defense has merit.

[Plaintiff I is a selective claim that the instant disposition is a tort against the Defendant, and even if it is recognized that the Defendant’s tort was committed, Plaintiff I’s claim for damages against the Defendant against Plaintiff I had expired five-year prescription period from the above payment date, which is the date of the occurrence of the damages. This result is the result of Plaintiff I’s selective claim)

5. Conclusion

Therefore, the defendant is obligated to pay the amount to be borne by each of the plaintiffs listed in the separate sheet No. 1 (as stated in the supplementary sheet No. 1) and 5% interest per annum under the Civil Act from the day following the payment date of the attached sheet No. 2 to November 7, 2011, on which the copy of the complaint of this case was served to the defendant, and to pay damages for delay of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the above plaintiffs' claim is justified, and the plaintiff No. 1's claim is dismissed as there is no ground.

Judges

judges of the presiding judge;

Judge Senior Professor

Judges Mahova-Gyeong

Note tin

1) Implementation districts:* Nowon-gu Seoul Special Metropolitan City Council 1,441, 300m, project period: August 14, 1998 to August 13, 2003

2) In accordance with the former Ordinance on the Use of the Sewerage Act, the head of A1 was delegated with the imposition and collection of charges borne by borne persons.

3) 11,589 KRW 450 + 24,982,780

4) Payment of 46,492,219 Won 46,492,210

5) Payment of 17,240,448 Won 17,240,440

6) Application to Plaintiff A

7) Application to the remaining plaintiffs

8) Application to Plaintiffs B, C, G, I, and K