[1] Whether the sale price of an apartment of a national housing scale shall meet the requirements for special multiple quorum at the time of a rebuilding resolution in cases where the matters concerning the apportionment of expenses are resolved to include some of the value-added tax on the construction services of an apartment exceeding the scale of national housing (affirmative)

[2] The case reversing the decision of the court below which acknowledged the return of unjust enrichment from the reconstruction housing association on the ground that the association members who purchased apartment units in units of national housing scale did not meet the requirements for the special number of quorum required at the time of rebuilding resolution to include the value-added tax on the construction services of the apartment units exceeding the national housing scale in the total project cost, on the ground that there is no evidence supporting that the return of unjust enrichment from the reconstruction housing association was included in the total estimated sale

[1] In a case where the matters concerning the apportionment of expenses are resolved to include some of the value-added tax on the construction services of an apartment exceeding the scale of national housing in the sale price of an apartment of a national housing scale, a resolution is required by a majority of 4/5 or more of the members by applying the quorum of special number at the time of reconstruction resolution to ensure equity among the members of the association opposing interests

[2] The case reversing the judgment of the court below which acknowledged the return of unjust enrichment of the reconstruction housing association on the ground that the above value-added tax was reflected in the sale price of the apartment in the total project cost and was recovered from the total revenues since it is reasonable to deem that the above value-added tax was recovered from the total revenues, even if the value-added tax was included in the total project cost, there is no change in the estimated cost ratio due to the increase in the total revenues from the sale, and the fact that the above value-added tax was included in the sale price of the apartment in the total revenues of the national housing scale, even though the plaintiffs who claimed the return of unjust enrichment had the burden of proving that the total revenues from the sale did not include the above value-added tax in the total revenues from the sale of the housing scale, and that the above value-added tax was included in the sale price of the apartment in the total revenues from the housing scale, despite the burden of proof

[1] Article 47 of the Act on Ownership and Management of Condominium Buildings, Article 15 of the Value-Added Tax Act, Article 106 (1) 4 of the Restriction of Special Taxation Act, Article 106 (4) of the Enforcement Decree of the Restriction of Special Taxation Act / [2] Article 741 of the Civil Act, Article 47 of the Act on Ownership and Management of Condominium Buildings, Article 15 of the Value-Added Tax Act, Article 106 (1) 4 of the Restriction of Special Taxation Act, Article 106 (4) of the Enforcement Decree of the Restriction of Special Taxation Act, Articles 288 and 42

Plaintiff 1 and 754 others (Law Firm Jeong, et al., Counsel for the plaintiff-appellant)

The Reconstruction Housing Association, one week of the Yeero Apartment Zone (Law Firm Haeung, et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na104323 decided September 16, 2009

The judgment below is reversed, and the case is remanded to Seoul High Court.

1. The judgment of the court below

With reference to the reasoning of the judgment of the court of first instance, the court below held that the defendant's own recognition that it is difficult to prove whether the value-added tax of this case was reflected in the total estimated sales revenue of this case is included in the total sales revenue estimated by the transaction comparison method rather than the cost method, and that the total sales revenue estimated by this case cannot be deemed to include the value-added tax of this case, based on the premise that the total sales revenue estimated by this case was not included in the total sales revenue estimated by the defendant, and that the decision of this case, which included the value-added tax of this case in the total investment expenses, was invalid because it did not meet the requirements, and therefore it did not meet the requirements, and therefore it did not meet the requirements, and therefore, the defendant is obligated to return the difference between the contributions calculated by the resolution of the cost sharing (the actual contributions paid by the plaintiff) and the contributions calculated by the estimated cost ratio, which was not included in the total investment expenses, to the plaintiffs.

2. The judgment of this Court

A. According to the reasoning of the judgment below and the record, Article 4 of the management and disposal plan provides that the estimated cost ratio [the total revenue estimated for sale - total project cost assessed for - 100], the right price for each association member [the previous appraised value 】 estimated cost rate], the contribution of the association members [the amount of contribution to each association member - the average amount assessed at two appraisal corporations], and Article 5 provides that the general sale price of the apartment of this case shall be determined separately after consultation with the Si construction project, taking into account the sale price of the association members. The global appraisal corporation, etc. calculated the sale price of the apartment of this case by the transaction comparison method, not the cost law, but the purchase price of the apartment of this case as a complex similar to this case. The construction price of the new apartment of this case was included in the 5th unit area of national housing and the construction price of the new apartment and new apartment of this case including the sale price of the apartment of this case and the sale price of the apartment of this case which exceeds the general sale price of each apartment of this case.

B. In addition to these circumstances, the value-added tax of this case is to be paid to the construction company for essential expenses incurred in the new construction of the apartment complex of this case; the defendant association which received construction services; therefore, it is necessary to recover the above value-added tax from the buyer; if the partner or the general buyer does not bear the value-added tax of this case, the defendant association should bear the above value-added tax on behalf of the buyer; furthermore, the defendant association does not have any reason to bear the above value-added tax; further, neighboring apartment units in the area referred to in the calculation of the selling price of the apartment of this case are general supply among the reconstruction association suppliers of the reconstruction association, and the sale price is to be set at a higher level than the members of the association; it goes against the common sense that the actual share of the value-added tax of this case without reflecting the value-added tax of this case which is inevitably incurred in the new construction of the apartment house of general supply is a member of the association of national housing scale, whether it is a purchaser of the apartment of this case exceeding the national housing scale, or whether it is a general buyer or a whole.

Furthermore, even if it is unclear whether the value-added tax of this case is reflected in the sale price by calculating the sale price of the apartment in this case pursuant to the transaction comparison method, rather than the contract comparison method, the circumstances that include the value-added tax of this case in the total project cost, but did not reflect it in the sale price differently from ordinary cases, which did not increase in the total sales price, shall be deemed to have the burden of proving that the plaintiffs seeking return of unjust enrichment.

C. In addition, in order to accept the claim by the plaintiffs, the fact that the value-added tax of this case was included in the sale price of the apartment of the national housing scale of this case should be asserted and proved first, and each apartment's invitation notice for occupants, which is the case of reference in the transaction comparison method, includes the value-added tax in the sale price of the apartment of the national housing scale exceeding the national housing scale. As such, the court below should have deliberated on whether the sale price of the apartment of the national housing scale of this case includes the purchase value-added tax related to construction services in the sale price of the apartment of the relevant national housing scale which is the case of reference in the calculation of the sale price of the national housing scale of this case, and should have judged disadvantageously to the plaintiffs who bear the burden of proof in accordance with the general principle on proof of proof

On the other hand, if it is proved that some of the value-added tax of this case is included in the sale price of the apartment of the national housing scale of this case, it is necessary to make a resolution by the majority of 4/5 or more of the members of the association by applying the quorum of special number at the time of reconstruction resolution in order to ensure equity among the members of the association conflicting with interest.

D. Nevertheless, the court below, without examining the above matters, concluded that the defendant is obligated to return unjust enrichment to the plaintiffs on the grounds that there is no evidence that the total estimated sales revenue of this case included the value added tax. The court below erred by failing to exhaust all necessary deliberations or by neglecting the burden of proof, which affected the conclusion of the judgment.

In addition, the Supreme Court Decision 2004Du7658 Decided February 8, 2007, 2004Du7658 Decided February 8, 2007, which points out by the plaintiffs in this case where the sale price is calculated in accordance with the transaction comparison method, is inappropriate to invoke the issue differently.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)