[1] In a case where a public project operator included basic facilities installation costs in the supply price of a housing site calculated on the basis of the cost of housing site preparation in a special supply contract for a housing site for which the project operator entered into with a person subject to relocation measures, whether unjust enrichment is established for the project operator (affirmative), and whether the cost of basic facilities installation can be calculated on the basis of the supply price of the housing site equivalent to

[2] Whether a project undertaker of a public project includes a “road that connects a road within a housing complex to the same road outside the relevant housing complex” regardless of its length or width (affirmative)

[1] Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007); Article 741 of the Civil Act / [2] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007); Article 2 subparag. 8 (see current Article 2 subparag. 10), and Article 23 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009)

[1] [2] Supreme Court en banc Decision 2012Da93435 Decided October 11, 2013, Supreme Court Decision 2012Da59268 Decided October 17, 2013, Supreme Court Decision 2012Da9794 Decided October 24, 2013 / [1] Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201 (Gong201Ha, 1440)

Plaintiff 1 and 15 others (Law Firm Songn, Attorneys Yoon Yong-dae et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Ansan-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na2993, 3009 decided November 29, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If a person subject to relocation measures is paid to a project operator, etc. the basic cost of the living facilities by including the cost of the basic 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 Public Works Act”) in a special supply contract for a housing site or housing entered into between a person subject to relocation measures and a project operator or a supplier under his/her arrangement, and thus the person subject to relocation measures has paid the cost of the basic living facilities to the project operator, etc., the portion of the special supply contract, which included the cost of the basic living facilities in the sale price, is invalid because it violates Article 78(4) of the former Public Works Act, which is a mandatory law (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

In light of such legal principles, if a project operator entered into a special supply contract for a housing site as relocation measures with a person subject to relocation measures including basic living facilities installation costs in the supply price of the housing site calculated on the basis of the cost for creating the housing site, such amount of unjust enrichment shall be deemed to be established. In such cases, the cost for installing basic living facilities that were transferred based on the supply price of the housing site equivalent to the appraised price shall not be calculated (see, e.g., Supreme Court Decisions 2012Da93435, Oct. 11, 2013; 2012Da59268, Oct. 17, 2013).

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the fair sale price should be calculated by deducting the cost of basic facilities from the actual sale price of the general sale site in the same business district, the condition of which is the same as the actual sale price of the housing site for migrants and its conditions, although the defendant actually set the cost of basic facilities in the same business district as the actual sale price which is not appraisal, the standard for calculating the fair sale price is different from the case where the cost of basic facilities is the basis of the cost of the housing site development even if the sale price is actually determined based on the actual sale price, based on the determination that there is no difference from the case where the cost of basic facilities is the result.

The calculation method of the legitimate sale price adopted by the court below is identical to the method and result of deducting the cost of basic living facilities from the cost of housing site development in accordance with the aforementioned legal principles. Thus, this part of the judgment below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles on the calculation of the legitimate sale price, or by misapprehending the rules of logic and experience and free evaluation of evidence

2. As to the grounds of appeal Nos. 2 through 4

A. The term “basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities” under Article 78(4) of the former Public Works Act refers to the main facilities, such as roads, water supply and drainage facilities, electric facilities, telecommunications facilities, gas facilities, district heating facilities, etc., on which a project proprietor who implements a housing construction project or a housing site development project, is required to install under the relevant statutes, such as Article 23 of the Housing Act (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 20

On the other hand, a road which is an arterial facility installed under a housing construction project or a housing site development project to which the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) applies is responsible for connecting the entrance of a housing complex in the project district and other roads outside the project district, and it can be an essential facility for the achievement of functions of the housing complex, etc. and the passage of residents, regardless of the length or width of the road, and the project undertaker shall be obliged to install the roads in accordance with the former Housing Act and subordinate statutes and the housing construction project plan or housing site development

In light of the contents of the former Housing Act and the purport of the former Public Works Act, which seeks to establish a basis for living for those subject to relocation measures as seen earlier, the roads for which a project proprietor of the same public project as the project in this case must provide a living facility to those subject to relocation measures, regardless of their length or width, are directly regulated by the former Housing Act and subordinate statutes, and include roads corresponding to arterial facilities as defined in Article 2 Subparag. 8 of the same Act, that is, roads within a housing complex, which link roads outside the housing complex to roads outside the housing complex, i.e., roads that are located outside the housing complex, regardless of their length or width. Such interpretation should be reasonable in cases of public works implemented under the former Housing Construction Promotion Act and subordinate statutes, which have the same provisions as the above Housing Act and subordinate statutes (see Supreme Court Decision 2012Da9794, Oct. 24, 2013, etc.).

B. According to the reasoning of the judgment below, the court below determined that the amount equivalent to the ratio of the cost of the basic living facilities to the cost of the construction of the basic living facilities out of the total or total project area is included in the cost of the construction of the basic living facilities, and the cost of the construction of the housing site is included in the cost of the construction of the basic living facilities, and the cost of the direct labor cost, sales cost, general management cost, and other cost of the construction of the housing site, which is the cost of the basic living facilities, among the cost of the construction of the housing site.

In light of the above legal principles and the records, the judgment of the court below is just. Contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the scope of basic living facilities and the installation cost of basic living facilities, or exceeding the bounds

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)