[1] Whether a road to be provided as basic living facilities by a project operator who implements a housing construction project or a housing site preparation project within a housing site development project zone, which is a public project, includes all the “road within a housing complex, which connects roads to the same kind of road outside the housing complex, regardless of its length or width (affirmative)

[2] Whether a contribution based on measures to improve metropolitan transport in metropolitan areas under Article 7 of the former Special Act on the Management of Metropolitan Transport in Metropolitan Areas constitutes the basic cost of living facilities to be provided as a basis for livelihood to a person subject to measures for relocation (negative), and in cases where the operator of a development project includes the amount equivalent to the above contribution in sales contract concluded with the person subject to measures for relocation, whether the liability for return of unjust

[1] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (Amended by Act No. 8665, Oct. 17, 2007); Article 2 subparag. 4 (c) of the former Housing Act (Amended by Act No. 9405, Feb. 3, 2009); Article 2 subparag. 8 (see current Article 2 subparag. 10), Articles 21(1)2 and 23(1) and (6) of the former Enforcement Decree of the Housing Act; Article 24(4) [Attachment 2] of the former Enforcement Decree of the Housing Act (Amended by Presidential Decree No. 1065, Feb. 17, 2007); Article 27 subparag. 10 of the former Enforcement Decree of the Housing Act (Amended by Act No. 21290, Mar. 19, 200; Presidential Decree No. 2758, Jul. 27, 2009>

[1] [2] Supreme Court Decision 2012Da59268, 59275, 59282 Decided October 17, 2013, Supreme Court Decision 2012Da83902 Decided December 26, 2013 / [1] Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201 (Gong201Ha, 140), Supreme Court Decision 2012Da3303 Decided September 26, 2013 (Gong2013Ha, 1937)

Plaintiff 1 and 14 others (Attorneys Kim Jong- full, et al., Counsel for the plaintiff-appellant)

Sung-nam City and one other (Attorneys Choi Jin-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na22964, 22971 decided February 29, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the plaintiffs' grounds of appeal

A. As to the site cost for roads

1) Article 78 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 “former Public Works Act”) provides that a project operator shall either establish and implement relocation measures or pay resettlement funds to a person who is deprived of his/her base of livelihood due to the provision of a residential building due to the implementation of a public project (hereinafter “person subject to relocation measures”), as prescribed by Presidential Decree, for a person who is deprived of his/her base of livelihood due to the provision of a residential building due to the implementation of a public project (hereinafter “person subject to relocation measures”), and the contents of relocation measures include basic living facilities according to the relevant regional conditions, such as roads, water supply and drainage facilities, and other public facilities, etc. in the relocation settlement site,

In Supreme Court en banc Decision 2007Da63089, 63096 Decided June 23, 201, the purpose of Article 78(4) of the former Public Works Act is to provide the person subject to relocation measures with a basis of living. 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 means roads, water supply facilities, telecommunications facilities, telecommunications facilities, gas facilities, district heating facilities, etc., where a project proprietor who implements a housing construction project or a housing site development project under the relevant statutes, such as Article 23 of the Housing Act, is required to be installed. The purport of the said judgment is to clarify the basic living facilities of the public facilities installed in the housing site development project district, which are stipulated in Article 78(4) of the former Public Works Act, which are to be provided as the basis of living conditions, because the land price of the public facilities in the housing site development project district is unclear.

Meanwhile, under Article 2 subparag. 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009; hereinafter “former Housing Act”), “arterial facilities” refer to facilities which connect the key facilities located outside a housing complex (where two or more housing complexes are simultaneously developed, referring to each housing complex), such as roads, water supply and drainage systems, electrical facilities, gas facilities, communications facilities, and district heating facilities, to the same key facilities located outside the relevant housing complex.

Article 21 (1) 2 of the former Housing Act provides that the standards for installation of incidental facilities concerning the construction, etc. of housing constructed and supplied by a project undertaker shall be prescribed by the Presidential Decree. Accordingly, Article 25 of the former Housing Construction Standards (amended by Presidential Decree No. 20722, Feb. 29, 2008) provides that a housing complex where an apartment house is constructed as one of incidental facilities shall be adjacent to or on a long-term basis [referring to roads prescribed by Article 4 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 21290, Feb. 3, 2009)] and access roads to the relevant housing complex shall be installed at the time when a project undertaker submits an application for installation plan (including access roads adjacent to the relevant housing site) exceeding the standards prescribed by the Ordinance of the Ministry of Construction and Transportation, and Article 57 of the former Enforcement Rule of the Housing Act (amended by Presidential Decree No. 21290, Mar. 17, 2009) provides that a project undertaker shall submit a plan for installation.

In addition, according to Article 23(1) of the former Housing Act, where a project proprietor implements a housing construction project in excess of the number of houses as determined by the Presidential Decree or a housing site development project in excess of the size as determined by the Presidential Decree, roads and water supply and sewerage systems shall be installed by a local government (paragraph (1) and electric facilities, telecommunications, telecommunications, gas or district heating facilities shall be installed by a person who supplies electricity, telecommunications, gas or heating to the relevant area (paragraph (2) but where a project proprietor intends to install facilities falling under subparagraph 1 as included in the housing construction project plan or housing site development project plan under Article 16(1), he/she

As such, roads, which are arterial facilities installed under a housing construction project or a housing site preparation project to which the former Housing Act applies, are responsible for connecting the entrance of a housing complex in the project district with roads outside the project district, and are essential facilities for achieving the functions of the housing complex, etc. and for passage of the residents, regardless of the length or width of the roads, and the project undertaker is obliged to install the roads in accordance with the former Housing Act and the housing construction project plan or housing site preparation project plan based thereon.

In light of the contents of the former Housing Act and the purport of the former Act and the en banc Decision that seeks to provide a basis for living to the persons subject to relocation measures as seen earlier, the roads that the project executor is required to provide to the persons subject to relocation measures within the housing site development project area, which is a public project, such as this case, are directly regulated with respect to the construction of basic facilities under the former Housing Act regardless of their length or width, and the roads that correspond to arterial facilities under Article 2 subparagraph 8 of the former Housing Act, which are stipulated by the project proprietor, are all included in the roads that connect roads outside the housing complex to the same roads outside the housing complex concerned, i.e., roads that are located outside the housing complex, regardless of their length or width.

2) Nevertheless, the lower court accepted the Defendant’s assertion that a road less than 200 meters in length or less than 8 meters in width is not an arterial facility prescribed in the Housing Act, and determined that only 897,743 square meters in size among 1,475,882 square meters in size of the road claimed by the Plaintiff constituted a basic living facility. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of roads, which are basic living facilities as prescribed in Article 78(4) of the former Public Works Act, thereby adversely affecting

B. Regarding the metropolitan transport facility plaza, storage site, sewage treatment site cost

For reasons indicated in its holding, the lower court rejected the Plaintiffs’ assertion that metropolitan transport facilities squares, storage sites, and sewage treatment plants are included in the area where basic living facilities are installed.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the part of the judgment below concerning metropolitan transportation facilities squares and storage sites is justifiable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the scope of

However, it is difficult to accept the part of the judgment below concerning sewage treatment plants as it is for the following reasons. Even if the sewage treatment plant is deemed a key facility for water supply and sewerage systems which are main facilities under the Housing Act, it is inappropriate in light of the purport of the former Public Works Act, which provides that the person subject to relocation measures is not required to bear expenses for arterial facilities in order to maintain the living conditions of the previous person subject to relocation measures, if the project operator installs key facilities within the housing site development area instead of installing key facilities and using key facilities outside the housing

Nevertheless, the lower court excluded sewage treatment plants from the installation area of basic living facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of installation cost of basic living facilities under Article 78(4) of the former Public Works Act, thereby adversely affecting the conclusion of the judgment.

C. As to the cost of site for gas supply facilities, integrated energy supply facilities, and substations

The lower court rejected the Plaintiffs’ assertion that, in the case of gas supply facilities, integrated energy supply facilities, and substations, there is no assertion and proof as to the grounds for the Defendant’s obligation to install, and that, according to Article 23(1)2 of the former Housing Act, such facilities should be installed by the supplier of gas, heating, or electricity in those areas, they should be included in the area of the basic living facilities.

If a project operator supplies a site corresponding to a gas supply facility, collective energy supply facility, or substation site to a person who supplies gas, heating, or electricity to the relevant area at least the cost of housing site development, the cost of the site shall not be deemed to have been transferred to the sale price, and such cost shall not be included in the cost of installing basic living facilities.

In light of the reasoning of the lower judgment and the record, the instant gas supply facilities, integrated energy supply facilities, and substations are deemed to have borne the costs of installation including the site costs by the supplier of gas, heating, or electricity in the relevant area, and there is no evidence to prove that the Defendant had paid them to the Plaintiffs, including the sale price. Therefore, it is difficult to view that the site costs are included in the cost of installation

Although the reasoning of the lower court is somewhat inappropriate, the lower court’s conclusion rejecting the Plaintiffs’ assertion that the instant gas supply facilities, integrated energy supply facilities, and transformer site costs are included in the cost of basic living facilities is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the scope of the cost of basic living facilities, thereby affecting the conclusion

D. As to the burden of electricity relayation and the cost of constructing sewage treatment plants

The lower court rejected the Plaintiffs’ assertion that, while recognizing the fact that the Defendant assumed the cost of electricalization and the cost of sewage treatment plant construction, the cost should be included in the cost of basic living facilities.

In light of the current trend of undergroundization of electric facilities, it is reasonable to deem that the cost of electricity and undergroundization borne by the project undertaker falls under the “basic living facilities according to the relevant regional conditions.” Meanwhile, since sewage treatment plants fall under the basic living facilities as seen earlier, the cost of construction is also included in the cost of installation of basic living facilities.

Nevertheless, the lower court excluded the costs of electricalization, sewage treatment plant construction from the cost of basic living facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the cost of basic living facilities, thereby adversely affecting the conclusion of the judgment.

E. As to the civil engineering construction cost, research and design cost, confirmation and survey cost, road and packing construction cost, street lamps construction cost, underground tea map, tunnel and bridge construction cost

In the case of civil construction cost, research and design cost, and final survey cost, the lower court recognized that the part corresponding to the ratio of the area of the basic living facilities to the total project area is included in the cost of the construction of basic living facilities, and calculated the cost of the basic living facilities for each item by deeming that the part corresponding to the ratio of the road area recognized by the lower court as the basic living facilities from the total road area is included in the cost of the construction of basic living facilities.

However, as seen earlier, sewage treatment plants should be added to the area where the basic living facilities are installed, and roads connecting roads outside the relevant housing complex to the same kind of roads outside the relevant housing complex are recognized as roads which are the basic living facilities without asking the length or width thereof. Accordingly, the amount of each item above should be calculated again. Accordingly, the lower court erred by misapprehending the legal principles on the calculation of the cost of the basic living facilities, which affected the conclusion of the judgment.

F. Regarding direct personnel expenses, sales expenses, management expenses, capital expenses, or other expenses

The lower court rejected the Plaintiffs’ assertion on the grounds that there is no evidence to support that the direct personnel expenses, sales expenses, management expenses, capital expenses, or other expenses include the cost of basic living facilities.

However, in light of the reasoning of the lower judgment and the record, it is reasonable to view that the cost was calculated as “a certain percentage of the sum of the site cost and the cost of creation,” and that, insofar as part of the site cost and the cost of creation constitute the cost of the basic living facilities, the part corresponding to the cost of the basic living facilities

Nevertheless, the lower court excluded both direct personnel expenses, sales expenses, management expenses, capital expenses, and other basic living facilities expenses. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the scope of installation costs of basic living facilities, which affected the conclusion of the judgment

2. Judgment on the Defendants’ grounds of appeal

A. On the grounds indicated in its reasoning, the lower court determined that the Defendants were liable to refund the amount of the instant contribution included in the sale price or to compensate for damages, on the grounds that the Defendants’ portion of the sales price constituted invalid or tort against the provision on the reduction of charges under Article 11-2(1) of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8251, Jan. 19, 2007; hereinafter “former Intercity Transport Act”), which is a mandatory provision, on the grounds that the charges, identification line charges, and other costs for dealing with metropolitan transport (hereinafter “instant contributions”) are included in the cost of establishing basic living facilities.

B. However, the lower court’s determination is difficult to accept for the following reasons.

According to Article 2 of the former Metropolitan Transport Act, the term “metropolitan area” means the area prescribed by the Presidential Decree among the areas located in the traffic life zone such as the Special Metropolitan City, Metropolitan Cities, and their cities under Article 2 (1) 1 of the Local Autonomy Act (Article 1); the term “wide traffic facilities” means traffic facilities for dealing with a wide-area traffic demand of metropolitan areas, which meet the requirements prescribed by the Presidential Decree (a) and “urban railroads or railroads operated over two or more Cities/Dos and meeting the requirements prescribed by the Presidential Decree, which are urban railroads or railroads (b) (Article 2 (1) 2).

In addition, with respect to the projects as prescribed by the Presidential Decree, such as large-scale development projects affecting metropolitan transport in metropolitan areas, the Mayor/Do Governor in the area where the relevant projects are implemented shall establish measures to improve metropolitan transport according to the development projects and submit them to the Minister of Construction and Transportation (Article 7(1)); the Minister of Construction and Transportation shall determine measures to improve metropolitan transport submitted pursuant to the provisions of paragraph (1) through deliberation by the Metropolitan Transport Committee under Article 8; and shall notify the relevant Mayor/Do Governor thereof (Article 7(2)); the head of the relevant central administrative agency; the head of the relevant local government; the head of the relevant local government; and the operator of the relevant development project shall faithfully implement the measures to improve metropolitan transport established pursuant to the provisions of paragraph (2) of the former Enforcement Decree of the Metropolitan Transport Act (amended by the Presidential Decree No. 20021, Apr. 20, 2007); the head of the relevant central administrative agency or the head of the relevant local government shall, within his/her jurisdiction (hereinafter referred to as “the head of the relevant local government’s development project”) after consultation or approval of the development project.

In light of the relevant provisions of the former Act, including these provisions, contributions based on measures for the improvement of metropolitan transport are required for the construction and improvement of metropolitan transport facilities in the course of implementing a large-scale development project in a metropolitan area, and the cost incurred in increasing the value of housing sites and housing in the metropolitan area is also expected to benefit from those who are provided with housing sites or housing in the metropolitan area. In view of the fact that a person subject to measures for the improvement of metropolitan transport has been provided with housing sites or housing in the metropolitan area, the contributions based on measures for the improvement of metropolitan transport cannot be deemed

In addition, Article 11-2(1)3 of the former Act on Special Cases concerning the Acquisition of Land for Metropolitan Transport and the Compensation for Loss of Land for Public Transport and Article 11-2(1)3 of the former Act on Special Cases concerning the Construction of Housing and the Construction of Housing in accordance with the implementation of relocation measures under Article 8 of the former Act on Special Cases concerning the Acquisition of Land for Metropolitan Transport and the Compensation for Loss thereof. However, this only provides that the Mayor/Do Governor, who is the authority imposing charges for metropolitan transport facilities, shall be exempted from the charges for the construction of housing sites and the construction of housing in accordance with the implementation of relocation measures to reduce the burden of the operator of the development project by allowing the Mayor/Do Governor to exempt the charges for metropolitan transport facilities. In cases where the operator of the development project actually paid the charges for metropolitan transport facilities in the course of the construction of housing sites and the construction of housing, even if a purchaser includes a person subject to relocation measures, such charges shall not be deemed to have been excluded from the charges actually paid to the person subject to relocation measures under Article 7 of the former Metropolitan Transport Act on the basis of the charges.

C. According to the evidence duly admitted by the court below, the housing site development project of this case includes the area of 9,315,00 square meters, accommodation number of 29,674 households, which constitutes a large-scale development project, and the measures to improve metropolitan transportation that became final and conclusive with respect to the above project include some of the construction costs of Gyeyang-Yonyang-Yon-Yon-Yon-Son-Son-Aon-Son-Son-Son-Con-Son-Son-Con-Son-Son-Aon-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son-Son

Nevertheless, the lower court determined otherwise that the Defendants were liable to refund or compensate the amount of the instant contribution included in the purchase price of the Plaintiffs as unjust enrichment. In so doing, the lower court erred by misapprehending the legal doctrine on Article 7 of the former Metropolitan Transport Act, thereby adversely affecting the conclusion of the judgment.

3. Determination on the remaining grounds of appeal by Defendant Sungnam-si

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is just for the court below to include the part corresponding to the ratio of the size of the basic living facilities in the cost of creating the basic living facilities, and there is no error of law by misapprehending the legal principles as to the scope of the cost of the basic living facilities

4. Determination on the remaining grounds of appeal by Defendant Korea Land and Housing Corporation

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is just that the court below included the water supply site and pressure plant in the installation area of basic living facilities, and there is no error of law by misapprehending the legal principles as to the scope of the installation cost of basic living facilities

5. Conclusion

Therefore, 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 Park Poe-dae (Presiding Justice)