2012 Doz. 100818

1. Dominium ○

2. Kim○-○

3. Mo○○

4. Kim △△△

5 grandchildren 5

6. Forwarding ○○

7. Transmission.

8. Forwarding △△△△;

9. △△;

10. Cautions

Park ○

12. ○○

13. This paragraph

○ ○

15. Maximum ○

16. Kim

17. The Song affairs △△△△

[Defendant-Appellee] Han field Law Firm

Attorney Kim Dong-hwan

Korea Land and Housing Corporation

Law Firm Han-ro, Counsel for the defendant-appellant

Attorney Yang Ho-soo

July 9, 2014

July 23, 2014

1. The defendant's each relevant money and each of the above mentioned in the column of "the detailed statement of the cited amount in attached Form 2" to the plaintiffs.

From April 6, 2012 to July 23, 2014, 5% per annum and the day of full payment from the next day to the day of full payment with respect to money.

up to 20% of the annual interest rate shall be paid.

2. The plaintiffs' remaining claims against the defendant are all dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs the amount of money in attached Form 1 8. The amount of money in each corresponding column of the "unfair amount of profit claimed by the plaintiffs", and 5% per annum from April 6, 2012 to the date of the pronouncement of the judgment of this case, and 20% per annum from the next day to the date of full payment.

1. Basic facts

(a) Execution of housing site development projects;

Daejeon Dong-dong, Gaam-dong, and Sung-dong, Daejeon District (hereinafter referred to as Daejeon District) was designated as a district subject to housing site development around April 1996. The Korea Land Corporation, which is a project implementer of the Daejeon District Housing Site Development Project (hereinafter referred to as the "project in this case"), (the defendant comprehensively succeeded to the property, claims, debts, and other rights and obligations of the Korea Land Corporation under the Korea Land and Housing Corporation Act; hereinafter referred to as the "Defendant") has obtained approval of the development plan on December 22, 199, and approval of the revision of the implementation plan on May 2, 2004.

(b) Conclusion of sales contracts;

1) The Defendant decided to supply a detached house site (hereinafter referred to as “special supply”) within the instant project district to those selected as a person subject to relocation measures as part of relocation measures for those who have lost their base of living as a housing or land, etc. was transferred to the instant project district and owned by the Defendant.

2 ) 이에 원고 유 , 김 , 박○○을 제외한 나머지 원고들 , 망 유☆☆ , 망 김☆ ☆ , 이☆☆은 2004 . 9 . 경 피고와 특별공급 단독주택용지에 관한 각 분양계약 ( 이하 ' 이 사건 각 분양계약 ' 이라 한다 ) 을 체결하였다 . 한편 , 망 유☆☆은 사망하여 원고 유소

이 , 망 김영제는 사망하여 원고 김소가 각 그 상속인들과의 협의에 의하여 피고에 대하여 가지는 부당이득반환채권을 각 단독상속하였고 , 원고 박○○은 2004 . 10 . 12 . 이☆☆의 분양계약상 권리 · 의무 일체를 승계하였다 ( 이하 망 유☆☆ , 망 김☆☆ , 이☆ ☆의 행위도 원고 유소 , 김소 , 박○○이 한 것으로 본다 ) .

3) Meanwhile, the Plaintiff △△△△ purchased from the Plaintiff △△△△, Dong-dong, Daejeon ** Dong-dong, Dong-dong, 230 to 6m2, Dong-dong*** * on July 1, 2009, merged on July 1, 2009, and the same *** * 461m high.

(c) Payment of sale price;

1) The Plaintiffs’ special supply of detached housing sites does not exceed 265 meters in total, and the arithmetic mean of the average of the supply cost under the following established rules does not exceed 80% in development cost. The Defendant indicated that the supply price per square meter of the Plaintiffs is 253,909 won in accordance with the formula under subparagraph 1 of attached Table 2 of Article 17(1)1 of the following established rules, and 311,000 won in calculating the arithmetic mean of 368,138,00 won in accordance with the formula under subparagraph 1 of attached Table 2. The Defendant calculated the sale price in accordance with the [Attachment 1] supply site and the claim price list ⑤ The sale price list is also calculated as 80% in price-fixing method in accordance with the above written statement with the arithmetic mean of the Plaintiffs’ 1 and 20% in the above written statement with respect to the above Defendant 1’s sale price calculation method.

A person shall be appointed.

A person shall be appointed.

2) The Plaintiffs paid each purchase price calculated as above to the Defendant (in the event of advance payment, the advance payment discount shall be added to the actual amount paid, and in the case of the payment of overdue interests, the Plaintiffs shall be deemed to have paid all the purchase price of the agreement if they were excluded). The final payment date is as indicated in the column of “the balance payment date” 6.

[Grounds for Recognition] The facts without dispute, Gap's statements in Gap's 1 to 9 (including each number, if any) and the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

The Defendant, as a project executor of the instant case, shall bear the cost of installing the basic living facilities pursuant to Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 7304, Dec. 31, 2004; hereinafter “former Act”). Accordingly, the Defendant had the Plaintiffs pay the sale price for which the cost of installing the basic living facilities was distributed in accordance with each of the instant sales contracts. Accordingly, the Defendant obtained the benefit equivalent to the cost of installing the basic living facilities and suffered damages equivalent to the said amount. Accordingly, the Defendant shall pay the amount equivalent to the cost of installing the basic living facilities included in each of the instant sales prices and the delayed damages to the Plaintiffs.

3. Grounds for return of unjust enrichment

A. General legal principles

Article 78 (1) of the former Public Works Act provides that a project operator is obligated to establish and implement relocation measures as prescribed by Presidential Decree for a person who is deprived of his base of livelihood due to the implementation of a public project (hereinafter referred to as a "person subject to relocation measures") or who is obligated to pay resettlement funds as prescribed by Presidential Decree. Article 40 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18580, Nov. 3, 2004) provides that "the relocation measures shall be implemented only in cases where the person who wishes to move to a resettlement area among those subject to relocation measures who have any inevitable reasons prescribed by the Ordinance of the Ministry of Construction and Transportation are at least 10 houses, but the project operator shall be required to take relocation measures at the expense of an administrative agency, such as the Housing Site Development Promotion Act or the Housing Act (including cases where a project operator supplies housing or housing to those subject to relocation measures under the relevant Act." Article 78 (2) of the former Public Works Act provides that the project operator shall be required to establish and implement relocation measures.

In full view of the above provisions, it is reasonable to interpret that a project operator supplies a housing site or a house to a person subject to relocation measures under the proviso of Article 40(2) of the former Enforcement Decree of the Public Works Act, such as the Housing Site Development Promotion Act or the Housing Act (hereinafter referred to as "special supply") as a means of relocation measures that a project operator may choose based on the above subparagraph of Article 78(1) of the former Public Works Act, and that a person subject to relocation measures should install a basic living facility as stipulated in Article 78(4) of the former Public Works Act at the cost of the project operator to provide the person subject to relocation measures, as in the case of providing a settlement site even in the case of a special supply. The conclusion does not change because the housing price acquired by the person subject to relocation measures through a special supply exceeds the supply price of the housing site and the housing market price so

The purpose of the former Public Works Act is to promote the promotion of public welfare and the protection of appropriate property rights by prescribing matters concerning compensation for losses incurred by the acquisition or use of land, etc. necessary for public works through consultation or expropriation. Measures for relocation under the former Public Works Act is a system that is prepared to restore the previous living conditions to those subject to relocation measures who lose their base of living, which is necessary for the implementation of public works, and at the same time to guarantee a decent life. The main text of Article 78(1) of the former Public Works Act, which imposes a duty to establish and implement relocation measures on the project operator, as well as Article 78(4) of the same Act, which provides for the contents of the measures, is a mandatory law that is not applied by the project operator at the discretion.

The purpose of Article 78(4) of the former Public Works Act is to provide a person subject to relocation measures with a basis for living. The term "basic living facilities according to the relevant local conditions, such as roads, water supply facilities, drainage facilities, and other public facilities," as referred to in the said provision, means roads, water supply facilities, telecommunications facilities, telecommunications facilities, gas facilities, and district heating facilities, which are to be installed by a project operator who implements a housing construction project or a housing site development project under the relevant statutes, such as Article 23 of the Housing Act.

If a person subject to relocation measures under a special supply contract for a housing site or housing combined with a person subject to relocation measures or a supplier under his/her arrangement included the cost of installing the basic living facilities as stipulated in Article 78(4) of the former Public Works Act in the sale price and thus a person subject to relocation measures has paid the cost of installing the basic living facilities to the project operator, the special supply contract is null and void in violation of Article 78(4) of the former Public Works Act, which is a mandatory law, if the person subject to relocation measures directly supplied the housing site or housing. If another supplier supplies the housing site or housing by using a vessel known to the project operator, the project operator is exempted from paying an amount equivalent to the cost of installing the basic living facilities to be borne by the project operator without any legal cause, and the project operator is obligated to return the amount to the person subject to relocation measures with unjust gains (see Supreme Court en banc Decision 2007Da636369, Jun. 23, 2011; 208Da630966, Jun. 6, 2009).

B. In the instant case:

As seen earlier, the Plaintiffs received the special supply of the land for relocation measures, not the general land.

If the sale price calculated by a political party excluding the cost of the basic living facilities as stipulated in Article 78(4) of the former Public Works Act exceeds the price paid by the plaintiffs, the cost of the basic living facilities should be deemed to include the cost of the basic living facilities. In this case, in light of the aforementioned legal principles, the defendant, who is the project operator of this case, is exempted from the disbursement of the amount equivalent to the cost of the basic living facilities to be borne by himself/herself, gains a profit equivalent to the same amount without any legal ground, and thereby the plaintiffs suffered a loss equivalent to the same amount. Accordingly, the defendant is obliged to return to the plaintiffs the amount exceeding the legitimate sale price, namely, the amount equivalent to the cost of the installation of the basic living facilities.

4. Whether to return unjust enrichment and the scope thereof;

(a) Method of computing a legitimate sale price;

The Defendant calculated the unit price for supply of a site for detached houses in an arithmetic mean of the arithmetic mean of the formula in subparagraph 1 and subparagraph 2 of attached Table 2 of Article 17 (1) of the Rules on the Establishment and Implementation of Relocation Measures as seen earlier.

According to the above legal principle, the average liquor value by the formula under subparagraphs 1 and 2 of attached Table 2 shall be the same as the supply unit price under subparagraph 1, inasmuch as the cost of installing basic facilities / the cost of supplying basic facilities x (the cost of public facilities - the cost of supplying the existing public facilities area) in the formula under subparagraph 2 of attached Table 2 is not zero in calculating the supply unit price. Thus, the legitimate sale price per square meter is "the cost of installing basic facilities per meter - the cost of installing basic facilities per meter," and the cost of installing basic facilities per square meter is "the total project cost (excluding the cost of relocation measures) - the cost of installing basic facilities / the cost of supplying basic facilities (the cost of disposal at a cost in this case) / The cost of supplying basic facilities should be calculated by the formula under subparagraph 2 of attached Table 2.

At this time, the cost of the cost of the basic living facilities is the formula in which the total cost of the site for the basic living facilities (the total cost of the site / the total project area) and the cost of the construction of the basic living facilities are the sum of the cost of the basic living facilities, and it is reasonable to determine the sum of the cost of the direct expenses, general management expenses and sales expenses, and other indirect expenses (the specified ratio of the total cost of the site and the cost of the creation) as follows.

B. Calculation of cost of establishing basic living facilities included in each of the sales contracts in this case

1) Items of total project cost and calculation method of cost of installing basic living facilities

In full view of the purport of the argument in Section B-2, the total project cost of the instant project is KRW 158, 750, 458, and 342, which consists of the following items in the calculation table and the relocation measures expenses ( KRW 2,847, 213, and 402). The cost disposal area of the instant project is 404, 118 square meters out of the total project area 644, 118 square meters (the Defendant calculated the cost of each unit and the unit price of the site for a detached house as the cost of the provisional disposal of the land for a detached house). The fact that the cost of the instant project is 158, 750, 458, and 342 can be recognized.

Total project cost (excluding the relocation cost) calculation statement;

A person shall be appointed.

Accordingly, it is reasonable to calculate the cost of basic living facilities by adding up the cost of installing basic living facilities among the cost of site for living at the time of basic living, the cost of creating basic living facilities at the time of distinguished service, and the cost of installing basic living facilities at the stage of direct operation, and ② the cost of selling and general management, and other indirect costs.

(ii)the installation area of basic living facilities;

Basic living facilities are "arterial facilities, such as roads, water supply and drainage systems, electric facilities, telecommunications facilities, gas facilities, and district heating facilities, which are to be installed by a project operator who implements a housing construction project or a housing site development project in accordance with the relevant laws, such as Article 23 of the Housing Act. The fact that the installation area of basic living facilities is a total of 151,954 meters, as shown in Ama, is recognized without dispute between the parties.

Meanwhile, in seeking the cost of installing basic living facilities, the Plaintiff calculated the ratio of the area corresponding to the snow of the basic living time in the total project area to the total project area (the total project area is 151, 954m/the total project area is 644m, 118m, the small number of decimal places) and then multiplied by the above ratio in seeking the cost of installing basic living facilities. Accordingly, this ratio is followed.

3) Site costs for basic living facilities: 20, 984, 666, 320 won;

The cost of the basic living facilities is 20,984, 666, 320 won (the total cost of site 88, 952, 000, 000 won for the installation area of the basic X living facilities 0. 23591).

4) Costs for creating basic living facilities: 27, 897, 392, 331 won (turfs less than won; hereinafter the same shall apply);

A) Calculation of the cost of creating the basic living facilities

The following may be recognized as the cost of creating the basic living facilities by integrating the purpose of the pleading in the entry of the evidence No. 1-4 of Section B.

A person shall be appointed.

A person shall be appointed.

B) Determination of the parties’ assertion

(1) The site cost for the rooftop;

The defendant asserts that the construction cost out of the project cost in the rooftop shall be borne by the Daejeon Metropolitan City, the defendant reflected only the site cost in the project cost, and the fact that the rooftop has existed outside the project district in this case is not a dispute between the parties, but the plaintiffs claim that the amount is KRW 1,203,00,000, the amount is KRW 1,946, 635,666.

In full view of the purport of the argument in the statement in the evidence No. 5 of this case, it is recognized that the total amount of six roads will have been scheduled to be constructed in the project zone of this case, the land compensation amounting to KRW 1,420, 395, 266, and the obstruction compensation amounting to KRW 526,240,40, and KRW 666 ( KRW 1,420, KRW 395, KRW 266, KRW 56, KRW 666 in total at the site of the project zone of this case, and KRW 65, KRW 665, KRW 666 in total, KRW 1,420, KRW 526, KRW 526, KRW 526, KRW 520, KRW 400, KRW 400 in the site of this case, and the plaintiffs' assertion that this part of this case's land was 60,000, KRW 660 in the site of this case.

(2) Cooperation Fund for the Conservation of Ecosystem

The defendant asserts that the arterial facility cost includes the Cooperation Charge for the Conservation of Ecosystem, and that this part is unrelated to the cost of the basic living facilities, so it should be deducted from the arterial facility cost.

Comprehensively taking account of the purport of the statement Eul's evidence No. 6, the defendant sent to Daejeon Metropolitan City a letter that the total amount of the Cooperation Charge for the Conservation of Ecosystem is scheduled to be paid 259, 902, 750 won on October 19, 2001 according to the provisions of Article 49 of the Natural Environment Conservation Act, based on the size of 640,040 meters approved for the implementation plan, and the fact that the payment was made in installments.

On the other hand, Article 1 of the Natural Environment Conservation Act (amended by Act No. 7678 of Aug. 4, 2005) aims to "the purpose of this Act is to promote sustainable utilization of the natural environment by protecting the natural environment from artificial damage, conserving the ecosystem, natural scenery, etc., and systematically conserving and managing the natural environment, and to enable citizens to lead a leisurely and healthy life in a pleasant natural environment." Article 46 "The Minister of Environment shall impose and collect ecosystem conservation charges on the operators of projects which systematically affect the natural environment or ecosystems for the conservation of the natural environment and the management and utilization of natural assets, or bring about a decrease in biodiversity."

In full view of the above facts and relevant provisions, it can be seen that the charges imposed on the act of destroying an ecosystem accompanied by development activities, etc., are imposed in proportion to the damaged area of the ecosystem. The defendant calculated and paid the Cooperation Charge for the Conservation of Ecosystem based on 640,040 meters corresponding to the damaged area among the total project area, and the damaged area seems to include the damaged area. Therefore, it is reasonable to view the defendant as the cost of installing the Basic Living Facilities in proportion to the ratio corresponding to the installed area of the basic living facilities in the total area of the damaged area. Accordingly, as seen earlier, it is reasonable to view that the cost of installing the Basic Living Facilities is equivalent to the ratio equivalent to the installed area of the basic living facilities in the total area of the damaged area. Accordingly, this part of the defendant's assertion is without merit.

5) Expenses related to basic facilities among direct personnel expenses, sales expenses and management expenses, and other indirect expenses: 9, 817, 694, 583 won;

A) Comprehensively taking account of the overall purport of the pleading in the statement No. 1-2 of the evidence No. 1-2, the facts calculated in the following manner can be acknowledged as follows:

(1) Direct labor cost = (site cost + creation cost) X direct labor cost rate (2. 13%)

(2) Sales expenses and management expenses = (Site creation expenses + direct labor expenses) X sales expenses and management ratio.

(6. 40%)

(3) Other indirect costs = (site cost + creation cost + direct labor cost) ¡¿ Indirect cost rate (11. 18%);

According to the above formula, the calculation of direct personnel expenses, sales expenses, management expenses, and other indirect expenses includes the amount calculated by multiplying the sum of the site expenses and creation expenses by a certain ratio. However, as seen earlier, the site expenses and creation expenses include the site expenses for each basic living facility and creation expenses. Therefore, each of the above expenses shall be deemed to include the cost for installing basic living facilities. Accordingly, this part shall be returned to the Plaintiffs as unjust enrichment.

B) The amount of direct personnel expenses, sales expenses, management expenses, or other indirect expenses incurred in installing basic living facilities may be calculated in accordance with the above formula as follows.

(1) Direct labor cost related to the cost of establishing a basic living facility: 1,041, 187, 849 won;

[The cost of creating basic living facilities 20, 984, 666, 320 won + the cost of creating basic living facilities

27, 897, 392, 331 won) x 0. 0213 = 1,041, 187, 849 won

(2) Sales expenses and management expenses related to the cost of installing basic living facilities: Three, 195, 087, 776 won.

[The cost of creating basic living facilities 20, 984, 666, 320 won + the cost of creating basic living facilities

27, 897, 392, 331 won + Direct labor cost for basic living facilities 1,041, 187, and 849 won) ¡¿ 064 =

3, 195, 087, 776 won

(3) Other indirect costs related to the cost of establishing a basic living facility: 5,581, 418, 958 won.

[The cost of creating basic living facilities 20, 984, 666, 320 won + the cost of creating basic living facilities

27, 897, 392, 331 won + Direct labor cost for basic living facilities 1,041, 187, and 849 won) ¡¿ 0.118 =

5, 581, 418, 958 Won

(4) Small river: 9,817, 694, 583 won.

6) Total sum of cost of basic living facilities

Therefore, the cost of installing the basic living facilities of the instant project is KRW 58, 69, 753, 234 (20, 984, 666, 320 for the basic living facilities of the instant project + KRW 27,897, 392, 331 for the cost of creating the basic living facilities + KRW 9,817, 694, 5833 out of direct and indirect costs.

C. Justifiable sale price and unjust enrichment

In full view of the purport of the argument in the above facts, the legitimate sale price per square meter for the plaintiffs in the project district of this case shall be the total project cost (excluding the relocation expenses) 155, 903, 244, and 940 won minus KRW 58, 69, 753, and 234 won for the cost of installing basic living facilities, 97, 203, 491, and 706 won for a fee disposal area.

404, 276 46 m240, 168 m2, 438 m2. 4) The sales price which the plaintiffs had to have paid to the defendant shall be 240, 168737 m2, 438. The amount which the plaintiffs had to have paid is the amount calculated by multiplying the following 20% of the sales price by the difference rate in attached Table 1 4 m2 and the difference in attached Table 3 m2 m2 m2 by the interest rate in attached Table 3 m2 m2 m2 m2. 5 m2 from the day of each lawsuit to the day of 200 m20 m20 m2. 5 m20 m20 m2.

5. Conclusion

Therefore, the plaintiffs' claims of this case are justified within the scope of the above recognition, and the remaining claims are without merit, and they are all dismissed. It is so decided as per Disposition.

Judges Lee Jae-soo

Judges Jeon Jae-chul

Judges Park Jong-chul

1) All the parts written as "part reflection" in the remarks column of the amount fully reflected, X basic living facilities 0.23591, 23591, and 3.0

The same shall apply.

2) Arterial facility costs consisting of site costs, cooperative charges for the Conservation of Ecosystem, sewage treatment charges, etc. on rooftop roads, and as follows:

The land cost for this rooftop is KRW 1,946, 635, 666, and the Cooperation Charge for the Conservation of Ecosystem for the Conservation of Ecosystem is KRW 259, 902, 750, and there is no dispute between Won and the defendant.

land costs of arterial facilities (other than the above table) are KRW 6,863, 461, 584.

3) In calculating the Cooperation Charge for the Conservation of Ecosystem, the Defendant had the base area of 640,040 square meters, but only the data submitted to this court was submitted.

Since it can not accurately distinguish how the area of basic living facilities is included in the area, it shall be compared to the total project area.

The Cooperation Fund for the Conservation of Ecosystem is also calculated as the percentage of the basic facilities to be active.

4) The Plaintiffs are not more than a decimal point in the column of “unit price calculation sheet” in attached Form 2 of the application form to change the purpose of claim and cause of claim.

Burin 237, 639 won, but each of the relevant money in the column "amount" shall be calculated as a unit price including below decimal point.

Since it is apparent that the unit price for supply per square meter shall be 240, 438, 168737, and the final amount shall be 240, 438, when calculating the legitimate selling price for the plaintiffs.

When calculating the amount of sales, the amount of less than the won shall be discarded.

[Attachment 1]

Details of supply of migrants' housing site and claim amount list;

A person shall be appointed.

[Attachment 2]

Detailed statement of cited Amount

A person shall be appointed.