After a sales contract is concluded for land converted to land for a factory in farmland, whether unjust enrichment is established where a seller has received a refund of farmland creation cost and exclusive charges while a purchaser has disbursed farmland creation cost and exclusive charges (affirmative)

When the purchaser evaluates and purchases the land and the above ground factory building used for the land in the farmland from the seller at the time of the sale and purchase contract, the seller is obligated not to arbitrarily submit a written waiver of business to the competent administrative agency to cancel the approval for the construction of a factory on the above land, or to refund the farmland creation cost and the exclusive use charge paid by the administrative agency to him/her. However, as a matter of administrative procedure, the seller becomes entitled to refund the farmland creation cost and the exclusive use charge paid by him/her, while the buyer suffers losses due to a new disbursement of the farmland creation cost and the exclusive use charge, in light of the purpose of the unjust enrichment system aimed at adjusting the property value in violation of the concept of fairness, in cases where there is a transfer of property value in violation of the concept of fairness, it is reasonable to view that there is causation between the buyer's loss

Articles 563 and 741 of the Civil Act

Supreme Court Decision 73Da29 delivered on April 8, 1975 (Gong1975, 8386) Supreme Court Decision 96Da16810 Delivered on July 12, 1996 (Gong196Ha, 2482)

Samples Food Co., Ltd. (Attorney Transferred-type et al., Counsel for the defendant-appellant)

Mangn Co., Ltd. (Attorney Jeon-soo et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2002Gahap2946 delivered on October 17, 2002

September 17, 2003

1. The plaintiff's appeal is all dismissed.

2. Upon the plaintiff's second preliminary claim added at the trial, the defendant shall pay to the plaintiff 134,135,940 won with 5% interest per annum from February 5, 2002 to October 1, 2003, and 20% interest per annum from the next day to the day of full payment.

3. Two-minutes of the costs of the lawsuit after the filing of the lawsuit are to be borne by the plaintiff, and the remainder by the defendant.

4. Paragraph 2 can be provisionally executed.

The judgment of the court of first instance is revoked. In the first instance, the defendant shall express his intention to transfer the claims listed in the attached Table 2 to the plaintiff, and the defendant shall notify the plaintiff of the above assignment of claims in advance, the defendant shall pay 134,135,940 won to the plaintiff, the amount of 5% per annum from the day following the date of service of a copy of the complaint of this case to the date of the judgment of the court of first instance, and the amount of 20% per annum from the next day to the date of full payment (the plaintiff shall make the plaintiff's primary claim as well as the preliminary claim as the first preliminary claim (hereinafter referred to as "the first preliminary claim"), and shall reduce the damages for delay from the first preliminary claim as well as from the date of the first preliminary claim to the date of full payment, and shall add the second preliminary claim (hereinafter referred to as "the second preliminary claim").

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no conflict between Gap's evidence 1 through 4, Gap's evidence 5-1, 2, 3, Eul's evidence 6, Eul's evidence 2-1, 2, 3, Eul's evidence 2-2, Eul's evidence 3, Eul's testimony for the number of witnesses at the court of first instance, and the whole purport of each fact inquiry with respect to Chungcheongbuk-do governor at the court of first instance, and there is no counter-proof otherwise.

A. On Apr. 17, 1995, Korea Development Lease Co., Ltd. (hereinafter referred to as 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '')' acquired land listed in the annexed Table No. 1 (hereinafter referred to as the 'the 'the 'the 'the 'the 'the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the '), and the ' the ' was suspended.

B. In accordance with the above agreement on March 16, 1998, the defendant was awarded a successful bid of KRW 164,81,000 in the auction procedure for the above real estate on March 16, 199 and completed the registration of ownership transfer on May 4, 199.

C. On November 23, 1998, the Defendant paid the farmland development cost amount of KRW 55,53,600 and exclusive charges of KRW 80,582,340 to the Korea Agricultural and Rural Infrastructure Corporation in relation to the diversion of farmland due to the construction of a factory on April 8, 1999 by using the instant land, the land category of which was the whole land, paddy field, forest, and forest as the factory site at the time, as the factory site, and paid KRW 134,135,940 in total to the Korea Agricultural and Rural Infrastructure Corporation (the Defendant was a company that manufactures and engages in construction materials, wholesale, real estate leasing, etc., but on April 15, 199, the Defendant added the manufacturing industry as the main category of business at that time, and applied for business registration by making an application for the manufacturing industry as the main category of business).

D. The defendant continued to implement the factory site development project and changed the land category of the land of this case into the factory site around April 199, while constructing three factory buildings on the land of 13 lots including the land of this case on the land of this case, and completed registration of initial ownership on the 8th of the same month.

E. On December 29, 199, Lee Jong-ok representing the defendant entered into a sales contract with the plaintiff on the land of this case and the factory building of this case (hereinafter referred to as "the above land and building of this case"), setting the sales price of 2,590,000,000 won (hereinafter referred to as "the sales contract of this case"). ① The plaintiff borrowed Lee Jae-hun, the representative director of the defendant, in lieu of the payment of the sales price, as the construction price of the new factory building of this case (the mortgage was established on the part of this case) and the construction price obligations for the subcontractor. ② The defendant paid the plaintiff all co-operation necessary to cancel the real right established on the real estate of this case to the plaintiff. ② At the time of the sales contract, the plaintiff was responsible for all debts other than those stated in the copy of the register of the real estate of this case, ③ at the time of the sale contract, the building of this case, electricity, gas, water facilities and the building of this case and the building of this case.

F. On April 20, 200, the head of Young-dong Gun revoked the approval for the establishment of the above factory as the defendant received the business waiver in the name of the defendant with respect to the approval for the establishment of a factory, which was obtained on November 23, 1998 by the defendant using the instant land as the factory site. Accordingly, the Cheongbuk-do Do Do Do Do Do Do on June 20, 200 decided to refund the farmland creation cost and exclusive charges already paid by the defendant as the project operator on June 20, 200 [ even if the land category of the instant land is changed to the factory site, it seems that the said land was determined as farmland

G. On the other hand, around April 200, the Plaintiff filed an application for a new construction approval with the head of Yeongdeungpo-gu Gun for 30 lots of land, including the land in this case, as factory site, and for the manufacturing industry of the funeral and the food-saving industry of the bond, as the type of business. On the 25th of the same month, the head of Young-dong Gun approved the new construction of a factory with the Plaintiff on June 2, 2000, the Cheongbuk-do Do governor notified the Plaintiff of the amount of 94,072,50 won including the land in this case, and 81,427,340 won for exclusive use and 175,49,480 won for farmland creation, including the land in this case. The Plaintiff paid the above amount to the Korea Agricultural and Rural Infrastructure Corporation on June 2, 2000 with the said new construction approval.

H. However, the Plaintiff filed an application for provisional attachment on June 3, 200 with the Cheongju District Court 200Kahap382, on the ground that the Defendant transferred the farmland creation cost and exclusive use charges on the instant land (hereinafter “instant refund claim”) to the Plaintiff, and the said court rendered a provisional attachment on the instant refund claim as the preserved right. Nonparty 1, who is an employee of the Plaintiff, applied for provisional attachment on the instant claim. Nonparty 1, at the time of receipt of the instant refund claim, is the right to be reverted to the Plaintiff under the instant sales contract. If the Defendant received the said refund, the Plaintiff was deemed to be unable to receive the said amount actually from the Defendant due to the financial situation of the Defendant, and applied for provisional attachment by forging the bond acquisition agreement.

I. On December 7, 2001, the Korea Agricultural and Rural Infrastructure Corporation deposited KRW 134,135,940, which is the full amount of the refund, with the depositee as the defendant under Daejeon District Court No. 2001Da4638, the Daejeon District Court 2001.

(j) Contents of the relevant laws and regulations relating to the instant case are as follows:

(1) According to the provisions of Article 36(1) of the Farmland Act and Article 13-2(1) of the Industrial Placement and Factory Construction Act, in approving the establishment of a factory, matters about which the head of a Si/Gun/Gu concerned has consulted with the heads of relevant administrative agencies regarding permission to divert farmland on the site for factories and access roads shall be deemed to have been permitted to divert farmland without permission of the Minister of Agriculture and Forestry

(2) According to the provisions of Article 40(1) of the Farmland Act, a person who intends to divert farmland for which consultation legally construed as permission to divert farmland under other Acts is required to pay the farmland creation cost to a person who operates and manages the Farmland Management Fund. In addition, according to the provisions of Articles 40(2) and 41 of the Farmland Act, when permission is revoked by the Minister of Agriculture and Forestry, the head of a Si/Gun/Gu, or the head of an autonomous Gu, by the person who has obtained permission to divert farmland or reported the farmland, the person who has paid the farmland creation cost should refund the farmland creation cost corresponding thereto to the person who has paid the farmland creation cost when permission is revoked by the Minister of Agriculture and Forestry, the person who has received permission to divert farmland or reported the farmland. Article 56(1) of the Enforcement Decree of the Farmland Act provides that the Minister of Agriculture and Forestry shall immediately determine the amount overpaid or erroneously paid or refunded as the farmland creation cost refund when there is an amount to be refunded pursuant to the provisions of Article 40(2) of the Farmland Act.

(3) Article 41 (1) of the Framework Act on Agriculture and Rural Community (amended by Act No. 6589 of Dec. 31, 2001) provides that "the Minister of Agriculture and Forestry shall impose and collect exclusive charges on and from a person who is obligated to pay the farmland creation cost under Article 40 (1) of the Farmland Act in order to secure investment funds for projects for improving the structure of rural communities, etc." and Article 25 (1) of the Enforcement Decree of the Farmland Act provides that "Article 56 (1) and (2) of the Enforcement Decree of the Farmland Act shall apply mutatis mutandis to the return of erroneously paid charges, etc."

2. Judgment as to the plaintiff's primary claim

A. Summary of the assertion

At the time of purchase of the instant land from the Defendant on December 29, 1999, the Plaintiff determined the purchase price by evaluating that the land category had already been changed into the land for factory, and therefore, the Plaintiff paid the farmland creation cost and the diversion charges under the name of the new landowner when the owner of the land applied for diversion of farmland changes in the administrative procedure. According to the Plaintiff’s payment, the Defendant has already paid the farmland creation cost and the diversion charges already paid. However, upon the Plaintiff’s provisional attachment of the Defendant’s farmland creation cost and the refund charges against the Korea Agricultural and Rural Infrastructure Corporation, the said amount was deposited in the Daejeon District Court. Accordingly, the Defendant’s claim for payment of the farmland creation cost and the diversion charges against the Korea Agricultural Infrastructure Corporation was without any legal ground. The Plaintiff paid the purchase price after evaluating the outcome of the diversion of the instant land. The Defendant’s profit was caused by the Plaintiff’s loss, and the Defendant has a duty to express his intent to transfer the deposit payment claim to the Plaintiff by unjust enrichment return and notify the said assignment of claims to the Republic of Korea.

B. Determination

On the other hand, since the fact that the defendant paid the deposit after the judgment of the court of first instance did not dispute between the parties, the defendant's claim for payment of deposit was extinguished. Therefore, the plaintiff's primary claim on the premise that the above claim for payment of deposit exists is without merit.

3. Judgment on the plaintiff's conjunctive claim

(a) First preliminary claim:

(1) Summary of the assertion

At the time of the instant sales contract, the Defendant agreed to bear the farmland creation cost and the exclusive use charge for the instant land. Since the Plaintiff paid KRW 134,135,940 in total to the Korea Agricultural and Rural Infrastructure Corporation on behalf of the Defendant, the Defendant is obliged to pay the Plaintiff the amount of KRW 134,135,940.

(2) Determination

Inasmuch as there is no evidence that the Plaintiff paid 134,135,940 won in aggregate of the farmland creation cost and exclusive charges on behalf of the Defendant, or agreed to pay the amount equivalent to the above amount that the Defendant is entitled to refund to the Plaintiff, the Plaintiff’s first preliminary claim is groundless.

(b) 2 preliminary claims

(1) Summary of the assertion

As seen earlier, the Plaintiff assessed that the land of this case was converted into farmland and determined the purchase price at the time of purchase from the Defendant, and thereafter, paid the farmland creation cost and the exclusive use charge for the land of this case for administrative reasons thereafter. The Defendant was entitled to refund KRW 134,135,940 for the farmland creation cost and the exclusive use charge already paid. Accordingly, given that the profit equivalent to the farmland creation cost and the exclusive use charge refunded to the Defendant is due to the Plaintiff’s loss, the Defendant is obligated to pay the Plaintiff an unjust enrichment amounting to KRW 134,135,940 and delay damages therefrom.

(2) Determination

According to the facts acknowledged earlier, the Plaintiff evaluated and purchased the instant land (this already paid farmland creation cost and exclusive use charge) and the building on its ground, which was converted from the Defendant to the land for factory from the Defendant at the time of the instant sales contract (the category of the instant land is indicated as factory site in the real estate list attached to the sales contract). The Defendant is obligated to arbitrarily submit a written waiver of business to the competent administrative agency to cancel approval for the construction of factory on the instant land, or not to transfer the farmland creation cost and exclusive use charge to himself/herself after being refunded the farmland development cost and exclusive use charge from the Administration. However, the Plaintiff’s request for approval for the alteration of factory industry due to the need for the Plaintiff’s business type was made without filing an application for alteration of factory establishment due to convenience due to the Defendant’s submission of a written waiver of business, and the Plaintiff’s claim for alteration of the farmland creation cost and exclusive use charge was made to the Plaintiff under the law, and the Plaintiff’s claim for alteration of the farmland development cost and exclusive use charge cannot be seen to be justifiable in light of the Plaintiff’s new farmland development cost and losses.

4. Conclusion

If so, the defendant is obligated to pay to the plaintiff 134,135,940 won with compensation for delay at the rate of 5% per annum under the Civil Act from February 5, 2002 following the delivery date of a copy of the complaint of this case to October 1, 2003 and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment. Therefore, the plaintiff's primary claim of this case and the primary primary claim of this case are legitimate, and thus, the plaintiff's appeal of this case is dismissed as it is without merit, and the second preliminary claim added in the trial of this case is justified, and it is decided as per Disposition by the assent of all participating Justices.

Judges Lee Jong-young (Presiding Judge)