Whether a project operator may include a person subject to relocation measures beyond the scope of a person subject to relocation measures under Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and Article 40(3) of the Enforcement Decree of the same Act (affirmative), and whether a project operator bears the duty to install basic living facilities for a non-resident pursuant to Article 78(4) of the same Act (negative)

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 40(3) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 20722 of Feb. 29, 2008)

Supreme Court Decision 2009Du9819 Decided September 24, 2009

Plaintiff 1 and 38 others (Attorneys Kim Jong- full, et al., Counsel for the plaintiff-appellant)

Plaintiff 4 and one other (Attorneys Kim Jong- full, et al., Counsel for the plaintiff-appellant)

EP Corporation (Law Firm Han & Yang LLC et al., Counsel for the plaintiff-appellant-appellant)

Seoul High Court Decision 2009Na23384 decided October 10, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by Plaintiffs 4 and 32 are dismissed. The costs of appeal by Plaintiffs 4 and 32 are assessed against the said Plaintiffs.

The grounds of appeal are examined.

1. As to the ground of appeal by the plaintiff 4 and 32

A. As to the grounds of appeal on whether to bear the duty to install basic living facilities

Article 78(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “Public Works Act”) provides that a project operator shall either establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for a person who is deprived of his base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter “person subject to relocation measures”). Meanwhile, Article 40(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008; hereinafter “Enforcement Decree of the Public Works Act”) provides that “the owner of a building who has not resided continuously from the date of the public announcement, etc. under the relevant Act and subordinate statutes for the public works to the date of conclusion or adjudication of expropriation” (hereinafter “unresident subject to relocation measures”). However, even in this case, it is permissible to establish the scope of a person subject to relocation measures as prescribed by the said Act and subordinate statutes.

However, even if a project operator is included in a person subject to relocation measures beyond the scope of a person subject to relocation measures under Article 78(1) of the Public Works Act and Article 40(3) of the Enforcement Decree of the Public Works Act, the relocation measures provided to an unresident owner who is not a person subject to relocation measures under the Act and subordinate statutes shall be deemed as being mutually advantageous, not as a duty under the Act and subordinate statutes. Thus, the project operator shall not be deemed to be obliged to install a basic living facility for such unresident pursuant to Article 78(4)

Examining the reasoning of the court below in light of the above legal principles, although the plaintiff 4 and 32 are not somewhat inappropriate or insufficient, they are the non-resident owners under Article 40 (3) of the Enforcement Decree of the Public Works Act, and they do not constitute a person subject to relocation measures who is obligated to install basic facilities pursuant to Article 78 (1) and (4) of the Public Works Act. The conclusion of the court below is just, and there is no error in the misapprehension of legal principles as to the selection of a person subject to relocation measures, violation of judicial precedents, contradiction of reasons, and lack of reasons, which affected the conclusion of the judgment

B. As to the ground of appeal on whether liability for damages occurred

The lower court rejected the Plaintiffs’ claim for damages on the ground that there is insufficient evidence to deem that the Defendant promised to supply an apartment building at a lower price than the general sale price, thereby failing to comply with the obligation, or that the Defendant committed an illegal act, such as inducing the Plaintiffs to comply with the consultation compensation.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of law of free evaluation of evidence against logical and empirical rules as otherwise alleged in the ground of appeal.

2. As to the Defendant’s ground of appeal

A. As to the ground of appeal on the “date of public notice, etc. under the relevant Acts and subordinate statutes for public services”

In full view of the content of the public announcement of the criteria for the relocation measures of this case, the court below determined that the defendant did not set the person subject to the relocation measures and the non-party subject to the relocation measures as of November 20, 2002, which is the base date for the relocation measures that he voluntarily determined, but rather set the person who acquired the housing within the project area of this case as of the date of public announcement of the compensation plan as a group of persons subject to the relocation measures, taking into account the agreement and voluntary migration, whether the person subject to the relocation measures has been residing in the relevant housing continuously by the date of public announcement of the compensation plan, and determined the type and area of the apartment to be supplied to him. As such, in this case, the court below determined that the "date of public announcement, etc. under the relevant Acts and subordinate statutes for public works" as referred to in Article 40 (3) 2 of

In light of the reasoning of the judgment below and the records, the above judgment of the court below is acceptable, and there is no error of law by misapprehending the legal principles as to the base date of relocation measures, as otherwise alleged in the

B. As to the ground of appeal on Article 6 of the Addenda to the Enforcement Decree of the Public Works Act

The court below rejected the defendant's assertion that the owner of a building without permission or report, constructed without permission or report as of January 24, 1989, does not constitute a person subject to relocation measures, notwithstanding Article 40 (3) 1 of the Addenda to the Enforcement Decree of the Public Works Act. In full view of the language and text of the above Addenda provision, the process of the introduction of the above Addenda provision, and the fact that the defendant himself takes January 24, 1989 as of January 24, 1989 as of January 24, 1989 as stipulated in Article 6 of the above Addenda, as of January 24, 1989, only is the time of construction of an unauthorized building and does not restrict ownership until the time of acquisition of ownership.

In light of the contents and purport of relevant Acts and subordinate statutes, the above determination by the court below is just and acceptable, and there is no error of law by misapprehending the legal principles on interpretation of Article 6 of the Addenda of the Enforcement Decree of the Public Works Act

C. As to the ground of appeal on the cost of installing basic living facilities

(1) The lower court rejected the Defendant’s assertion that a road, which is a basic living facility, should be limited to at least 200 meters in length and 8 meters in width, and determined that the Defendant’s entire road newly installed within the instant project area under the instant project plan constituted a basic living facility.

In light of the relevant legal principles and records, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on the scope

(2) In addition, the lower court determined that, inasmuch as the Defendant’s removal of a road equivalent to 252,89 square meters in size which was previously installed in accordance with the instant project plan and construction of a new road, the previous site was gratuitously reverted to the Defendant as state-owned or public land, but the assessed value of state-owned or public land gratuitously reverted is included in the total cost of housing site, which is the basis for determining the sale price, as long as the said assessed value of state-owned or public land is included in the total cost of housing site, the area of the State-owned land gratuitously reverted shall not be deducted when calculating the site cost of

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are just and acceptable, and the judgment of the court below is indirectly included in the judgment dismissing the defendant's assertion that the cost of the basic living facilities should be calculated on the basis of the area obtained without compensation from the newly constructed road area after deducting 252,89 square meters of the site area. Thus, there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or omission of judgment, as

(3) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ① the total area of the instant project district was calculated and announced as 3,492,421 square meters based on the land use plan on July 2007, as the development cost of the instant project district was disclosed around October 2007, and the area of the road was calculated and announced as 475,695 square meters; ② the Plaintiffs were 475,695 square meters from January 30, 2008 to March 20, 2008; ② the Plaintiff was 50 square meters of the development cost of each of the instant project district, which was calculated on the basis of the site development cost of 475,695 square meters, which was calculated on the basis of the housing site development cost of the instant project district; ③ The alteration of the development cost of the instant project district was determined as 2015 square meters of the development cost of the 2014 square meters of the construction cost of the instant project district; and ④ the alteration of the development cost of 21614.

In light of these facts, the plaintiffs entered into each of the instant sales contracts and then changed the road area from 475,695 square meters to 496,855.6 square meters, but this changed after the plaintiffs' sale price was calculated, which led to a change in the road area that affected the calculation of the plaintiffs' sale price. Therefore, in calculating unjust enrichment against the plaintiffs, it is reasonable to view that the calculation of unjust enrichment for the plaintiffs should be based on 475,695 square meters, which is the road area at the time of calculation of the housing site development cost, which

Nevertheless, the lower court calculated the Defendant’s unjust enrichment based on the 496,855.6m2, which is a road area additionally constructed after calculating the sale price. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the site cost of basic living facilities, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

(4) Furthermore, based on its stated reasoning, the lower court determined that direct personnel expenses, sales expenses, general management expenses, and capital expenses incurred in relation to the instant housing site development project constituted installation costs of basic living facilities.

In light of the relevant statutes and legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the cost of installing basic living facilities as alleged in the grounds of appeal.

D. As to the ground of appeal on the scope of unjust enrichment

In full view of various circumstances as indicated in its reasoning, including the fact that the sale price in a special supply contract for a person subject to relocation measures is determined as the same amount as the sale price of an apartment under a general sale contract, the lower court determined that each sale price that the Plaintiffs paid to the Defendant includes the cost of installing basic living facilities, and that the total amount equivalent to the cost of installing basic living facilities included in the sale price constitutes unjust enrichment

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeals by Plaintiffs 4 and 32 are all dismissed. The costs of the appeal by the said Plaintiffs are assessed against the said Plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)