Plaintiff 1 and two others (Law Firm Young-soo, Attorneys Lee Do-won et al., Counsel for the plaintiff-appellant)

Dongdaemun-gu Seoul Metropolitan Government and two others (Government Law Firm Corporation, Attorneys Kim Tae-hun, Counsel for the plaintiff-appellant)

June 14, 2018

1. A. The defendant Dongdaemun-gu Seoul Metropolitan Government pays to the plaintiff 1 1 17,81,697 won and 5,000,000 won from August 22, 2017; 12,81,697 won with 5% per annum from February 21, 2018 to July 12, 2018; and 15% per annum from the next day to the date of full payment.

B. Defendant Nowon-gu in Seoul Special Metropolitan City pays 17,377,743 won to Plaintiff 2 and 5,000,000 won from August 22, 2017; 12,377,743 won per annum from February 21, 2018 to July 12, 2018; and 15% per annum from the following day to the date of full payment.

C. Defendant Jung-gu, Seoul, paid to Plaintiff 3 17,377,743 and 5,000,000 won per annum from August 22, 2017; 12,377,743 won per annum from February 15, 2018 to July 12, 2018; and 15% per annum from the following day to the date of full payment.

2. The plaintiffs' remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 1/9 shall be borne by the Plaintiffs, and the remainder shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

1. The defendant Dongdaemun-gu Seoul Metropolitan Government shall pay to the plaintiff 1 1 19,274,232 and 5,000,000 won from November 28, 2008 to the delivery date of the complaint of this case, 14,274,232 won from November 28, 2008 to the delivery date of the application for modification of the purport of this case, 5% per annum from November 28, 2008 to the delivery date of the application for modification of the purport of this case, and 15% per annum from the next day to the full payment date.

2. Defendant Nowon-gu in Seoul Special Metropolitan City pays to Plaintiff 2 18,808,243 and 5,000,000 won from October 31, 2008 to the delivery date of the complaint of this case; 13,808,243 won from October 31, 2008 to the delivery date of the application for modification of the purport of this case; 5% per annum from October 31, 2008 to the delivery date of the application for modification of the purport of this case; and 15% per annum from the next day to the completion date of each claim.

3. Defendant Jung-gu, Seoul, paid to Plaintiff 3 18,808,243 and 5,000,000 won from October 1, 2008 to the delivery date of the complaint of this case; 13,808,243 won from October 1, 2008 to the delivery date of the application for modification of the purport of this case; 5% per annum from October 1, 2008 to the delivery date of the application for modification of the purport of this case; and 15% per annum from the next day to the payment date.

1. Facts of recognition;

A. The following owners provided housing or land owned by them to the above project by means of expropriation, etc. of residential buildings as incorporated into public works, etc. as follows:

On June 21, 1999, the name of the project subject to expropriation on June 21, 1999, the date of the announcement of the approval for the implementation of the autonomous Gu project by the owner of the title contained in the main sentence, and the building (location 2 omitted) of ○○○○ or △△△△△△ apartment Road Construction Project, which was located on January 30, 1998 from 200 to 3 non-party 2, Jung-gu, 1998, Jung-gu, 1998, the name of the project subject to expropriation on the date of the public announcement of the approval for the implementation of the autonomous Gu project

B. As above, the above owners offered housing, etc. to each business, and were selected as the subject of the special supply of national housing to be constructed in △△△ District in accordance with the former National Housing Special Supply Regulations (amended by April 10, 208) for the removal residents of Seoul Special Metropolitan City. Accordingly, the above owners entered into a sales contract on the apartment housing in △△△ District as follows (hereinafter “each sales contract in this case”). Nonparty 1 transferred the rights and duties pursuant to the sales contract to Plaintiff 1 with the consent of KSD Corporation. Thereafter, the Plaintiffs paid the sales price and completed the registration of ownership transfer for the apartment sold in lots.

Before the date of sale contract by the transferee of the unit in the main sentence, Nonparty 1, May 30, 2008, Plaintiff 501-2002, May 30, 2008, May 30, 2008, Plaintiff 2, 605-1304, May 6, 2008, 205-1304, 379,829,82-30375,197,5.6813, May 6, 2008, Plaintiff 3 (the deceased Nonparty 2’s heir) of May 7, 2008.

C. On July 30, 2013, the Plaintiffs filed a lawsuit against the Defendants with the same cause of claim as in the instant case and sentenced to a judgment citing the principal amount of KRW 2,00,000 and damages for delay thereof, and the judgment became final and conclusive on November 8, 2016 (Seoul Central District Court Decision 2013Da5102681, hereinafter referred to as “prior action”).

[Reasons for Recognition] Facts without dispute, Gap 1 through 9, Eul 1, Eul 2, 3, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

The Defendants supplied apartment to the Plaintiffs, including the cost of installing the basic living facilities in the sale price, thereby gaining profits equivalent to the cost of installing the basic living facilities without any legal grounds, and suffered losses from the Plaintiffs, so the amount shall be returned to the Plaintiffs as unjust enrichment.

On July 30, 2013, before the expiration of the extinctive prescription period, the Plaintiffs filed a prior suit and received a favorable judgment, and the judgment became final and conclusive on November 8, 2016, and thus the extinctive prescription was interrupted.

B. The Defendants

The plaintiffs can exercise their right to claim restitution of unjust enrichment (the plaintiff 1, November 28, 2008; the plaintiff 2, October 31, 2008; the plaintiff 3, October 1, 2008); and the plaintiff 3 filed the lawsuit of this case on May 18, 2017 after five years from the time when they were able to exercise their right to claim restitution of unjust enrichment (the statute of limitations expired).

3. Return of unjust enrichment:

A. Right to claim restitution of unjust enrichment

Pursuant to the proviso to Article 40(2) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”), a project operator to supply a housing site or house to a person subject to relocation measures (hereinafter “special supply”) pursuant to the proviso to Article 40(2) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “former Public Works Act”) is a method of relocation measures that a project operator may choose on the basis of delegation of Article 78(1) of the former Public Works Act, such as the Housing Site Development Promotion Act or the Housing Act. Therefore, in the case of special supply, as in the case of providing a settlement site, a project operator shall install a basic living facility as prescribed in Article 78(4) of the former Public Works Act and provide a person subject to relocation measures at his/her own expense. The main sentence of Article 78(4) of the same Act, which

Therefore, if a person subject to relocation measures was to pay the project operator, etc. the cost of the basic living facilities as stipulated in Article 78(4) of the former Public Works Act by including the cost of the basic living facilities as the sale price in a housing site or housing supply contract entered into between a person subject to relocation measures and a project operator or a supplier under his/her arrangement, the special supply contract violates Article 78(4) of the former Public Works Act, which is a mandatory law, and the portion of the cost of the basic living facilities included in the sale price of a housing site or a house directly supplied by the project operator is null and void. If another supplier supplies a housing site or a house through his/her arrangement, the project operator is exempted from the disbursement of the amount equivalent to the cost of the basic living facilities to be borne by the project operator without any legal cause. Accordingly, the project operator is obligated to return the amount to the person subject to relocation measures as unjust enrichment (see Supreme Court en banc Decision 2007Da63096, Jun. 23, 2011).

According to the above facts and evidence, Nonparty 1, Nonparty 2, and Plaintiff 2 are legal residents for relocation, and the Defendants are project implementers. Of each sales contract of this case, the part including the cost of basic living facilities is invalid as it violates Article 78(4) of the former Public Works Act, which is a mandatory law, and the Defendants, the project implementer, are obliged to return the amount equivalent to the cost of basic living facilities to the Plaintiffs as unjust enrichment.

(b) Extinctive prescription;

Where a lawsuit is instituted by clearly stating the purport that a judgment is sought only for a part of one claim, the interruption of extinctive prescription by the lawsuit shall take effect only for that part, and the remainder shall not take place, but even where only a part of the claim is claimed, if it is interpreted to seek a judgment on the whole claim in light of the purport thereof, the claim amount shall be deemed as the whole of the claim. In such a case, it is reasonable to interpret that the interruption of prescription takes effect within the scope of the identity of the claim (Supreme Court Decision 91Da43695 delivered on April 10, 1992).

According to the purport of the whole pleadings, the prior suit states, “The scope of the amount for which the plaintiff may claim the return of unjust enrichment from the defendants shall be the amount calculated by dividing the costs incurred in the basic living facilities above that the defendants should bear by the total floor area ratio of the plaintiffs to the total floor area, and the correct amount shall be determined after receiving the opinion or data on the costs incurred in the basic living facilities above from the non-party SP Corporation. The plaintiffs shall be deemed to have the right to claim the return of unjust enrichment, but the correct amount shall be calculated by receiving the data related to the basic living facilities from the defendants, and it shall be recognized that they will have claimed only 2,00,000 won which is a

Therefore, it is reasonable to view that the extinctive prescription takes effect as to the whole of the claim for return of unjust enrichment, with the purport of seeking a judgment on the whole of the claim for return of unjust enrichment on the premise of subsequent expansion of the claim. The Defendants’ assertion for the completion of extinctive prescription

4. Scope of return of unjust gains;

(a) Methods for calculating unjust enrichment;

1) Calculation Method

In the event that the Defendants, which is the executor of each public works in this case, supply the housing to the Plaintiffs as part of the relocation measures, the basic living facilities ought to be borne by the relevant Defendants. As such, each unjust enrichment to be returned to the Plaintiffs is the amount corresponding to the cost of establishing the basic living facilities. The cost of establishing the basic living facilities can be calculated by the formula of “total cost of installing the basic living facilities 】 (total sum of cost of installing the site of the apartment sold ± the site area of the apartment site ± the total project area) ± the cost of supplying the whole project area.” In addition, “total cost of installing the basic living facilities” in the foregoing formula is the sum of ① cost of the basic living facilities, ② cost of creating the basic

(ii) the scope of basic living facilities;

The purpose of Article 78(4) of the former Public Works Act is to provide a basis for living for those subject to relocation measures. As such, the term “basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities” under the said provision refers to roads, water supply and drainage facilities, electric facilities, telecommunications facilities, gas facilities, or district heating facilities, which are installed by a project operator who implements a housing construction project or a housing site development project under the relevant statutes, such as Article 23 of the Housing Act (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

(b) Calculation of costs of installing basic living facilities;

According to the above facts and the evidence, among the total cost for the construction of △△ District project, only the amount calculated by multiplying the cost for design, incidental design, civil engineering construction cost (excluding soundproof wall construction cost), civil engineering engineering installation cost, civil engineering supervision cost, civil engineering incidental cost, waste disposal cost, follow-up environmental research service cost by the ratio of the area for which the basic living facilities are installed among the total cost for each cost for the construction of basic living facilities is recognized as having been related to the construction of basic living facilities. As such, only the amount calculated by multiplying the total cost for each cost by the ratio of the area for which the basic living facilities are installed is not specified.

The cost of soundproofing wall construction is not only the cost of installing soundproof walls on the road installed by the Defendant in △△△ District, but also there is no evidence to recognize that it is the cost of installing soundproof walls on the side of an expressway between △△△△△△△△△△△” (the cost seems to be the cost of installing soundproof walls on the side of the road on the road between △△△△△△△△△△ seat). Even if the said soundproof wall construction cost is related to roads installed

According to the above facts and evidence, the cost of installing the basic living facilities in △△ District is ① KRW 104,416,236,149; ② the cost of creating the basic living facilities; ② KRW 15,766,093,027; ③ the direct labor cost related to the basic living facilities; KRW 276,419,357; KRW 1,361,363,858; capital cost; KRW 24,140,058,064; KRW 145,959,90,455; and KRW 34,085 square meters; ② the cost of installing the basic living facilities per one square meter of the total site area in the development zone for △△△△△△ District is KRW 424,197 (147,707,269,064; KRW 364; or KRW 384,501; or KRW 2005.37515.205.

In excess of this, the plaintiffs' assertion that the cost of installing basic living facilities per 1 square meter of paid supply area is KRW 455,512 is not accepted.

C. Scope of return of unjust enrichment

Therefore, with respect to KRW 17,81,697 (won 424,197 x 46.704 x 2,000,000) and KRW 5,00,000, the following day after the delivery of the complaint of this case, Defendant Dongdaemun-gu Seoul Metropolitan Government is obligated to pay to Plaintiff 1 5% per annum under the Civil Act from February 21, 2018 to July 13, 2018, which is the day following the delivery of the application for modification of the purport of this case, and damages for delay by 15% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

As to KRW 17,377,743 (won 424,197 x 45.681 x 2,00,000) and KRW 5,00,00 among them, the Defendant, Nowon-gu, Seoul Special Metropolitan City, has a duty to pay to Plaintiff 2 5% per annum under the Civil Act from February 21, 2018 to July 12, 2018, which is the day following the delivery date of the written application for modification of the purport of this case, for KRW 12,37,743, which is the day following the delivery date of the written application for modification of the purport of this case, and damages for delay by 15% 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.

With respect to KRW 17,377,743 (won 424,197 x 45.681 x 2,000,000) and KRW 5,00,000, which is the day following the day when the written complaint of this case was served, the Defendant Jung-gu Seoul Special Metropolitan City is obligated to pay to Plaintiff 3 5% per annum under the Civil Act from February 15, 2018 to July 13, 2018, which is the day following the day when the written application for amendment of the purport of this case was served, and damages for delay at each rate of KRW 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day until the day when the written application for amendment of the purport of this case was served.

5. Conclusion

Thus, each of the plaintiffs' claims against the defendants is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit.

South-North Judge