2014Da59750 Confirmation of Non-existence of Obligation

Appellee, Appellee

The list of the plaintiffs and the succeeding intervenors is as shown in the attached Table.

1. H:

2. M;

3. R:

4. U;

5. AA;

6. AE;

7. AV;

8. AX;

9. AZ.

10. BA

The Korea Land and Housing Corporation which is a lawsuit taken over by Korea Land Corporation.

Seoul High Court Decision 2012Na22145 Decided July 17, 2014

October 15, 2015

The part of the lower judgment against the Plaintiffs and the Intervenors succeeding to the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In a special supply contract for a housing site concluded between a person subject to relocation measures and a project operator, if a person subject to relocation measures has paid the cost of installing the basic living facilities to the project operator by including the cost of installing the basic living facilities in the sale price under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Land Compensation Act”), the portion of the special supply contract included the cost of installing the basic living facilities in the sale price is null and void as it violates Article 78(4) of the former Land Compensation Act, which is a mandatory law (see Supreme Court en banc Decision 2007Da63089, 63096, Jun. 23, 2011).

Meanwhile, if a project operator sets the sales price of a re-resident at a certain amount at the cost of housing site development, it should be determined whether the sales price exceeds the amount obtained by deducting the basic facilities installation cost from the cost of housing site development, including whether the cost of housing site development is included in the cost of housing site construction and its scope. In this case, Article 78(4) of the former Land Compensation Act prohibits a project operator from carrying out the basic facilities installation cost of a non-resident subject to relocation measures, but does not stipulate the expenses that the project operator may actively charge the person subject to relocation measures or the details of the sales price that he/she may receive from the person subject to relocation measures. As such, since Article 78(4) of the same Act prohibits a project operator from carrying out the cost of housing site development, among the cost of housing site development, which the project operator had taken the basis for the determination of the sale price of a re-resident's housing site development cost, it shall be calculated by deducting the installation cost of the basic facilities from the cost of housing site development cost

Moreover, it is nothing more than dispute over whether the cost of creating a housing site, which is used as the basis for the determination of the cost of selling the housing site for the migrants, should be included in the cost of supplying the housing site at a cost lower than the cost of development, because it is nothing more than dispute over the legitimacy of the calculation of the cost of creating a housing site, it cannot be said that there is a relationship between the cost of installing a basic living facility for those subject to relocation measures, and the project operator violates Article 78(4) of the former Land Compensation Act. Therefore, in calculating the amount of unjust enrichment equivalent to the cost of installing a basic living facility included in the cost of selling the housing site for the migrants, the cost of supplying the housing site, which is used as the basis for the determination of the cost of selling the housing site for the settlement of the cost of selling the housing site for the settlement of

B. The decision of the court below is just in accordance with the above legal principles and it is not erroneous in the misapprehension of legal principles as to the calculation of the price of the housing site to be used by the defendant as the basis for the calculation of the price of the housing site to be used as the basis for the sale price of the migrants, and in the calculation of the price of the housing site to be used as the basis for the calculation of the price of the housing site to be used as the price of the land to be supplied at the cost below the development cost, which is calculated by deducting the cost of basic facilities from the price of the housing site development in comparison with

2. As to the grounds of appeal Nos. 2 and 3

A. As to the ground of appeal on the site for power supply facilities

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to regard the supply of electricity as basic facilities and include the site area in the site area of basic living facilities on the grounds as stated in its reasoning. In so doing, it did not err by misapprehending the legal principles as to the scope of basic living facilities

B. As to the ground of appeal on the site of gas pressure plant and pressure plant

(1) Judicial confession refers to a statement of facts unfavorable to himself/herself, consistent with the allegations by the other party on the date of pleading or on the date of preparation procedure, and confession of indirect facts is not binding upon the court or the party (see, e.g., Supreme Court Decision 2013Da213823, Mar. 13, 2014).

In the instant case where the Plaintiffs and the Intervenor’s Intervenor seeking return of unjust enrichment on the grounds that the cost of the basic living facilities was fully paid to the sale price of the resettled housing site that received a special supply at a certain amount at the cost of the construction of the housing site, the establishment of unjust enrichment and its scope are determined through mutual relation, such as whether the sale price exceeds “the amount obtained by deducting the cost of the basic living facilities from the cost of the construction of the housing site” (see Supreme Court Decision 2014Da85391, Jul. 9, 2015). As such, it is difficult to view that the issue of whether the basic living facilities area of the cost of the basic living facilities is included in the cost of the construction of the living facilities and the cost of the pressure park area, which are merely the basis for calculating the cost of the construction of the living facilities, constitutes a principal fact. In addition, in light of the records, since the Defendant’s statement is recognized to be due to a violation of truth and a mistake, it cannot be deemed that the Defendant’s confession

(2) Furthermore, according to the reasoning of the lower judgment and the record, the housing site development cost in the instant project district was calculated on the basis of the development plan and implementation plan as amended to BT announced by the Ministry of Construction and Transportation on May 18, 2007, and the said development plan and implementation plan do not include the installation of gas pressure stations or pressure stations, and later, included the development plan and implementation plan as amended to BU as announced by the Ministry of Land, Transport and Maritime Affairs on August 11, 2009 in the development plan and implementation plan as announced by the Ministry of Land, Transport and Maritime Affairs.

According to the above facts, after calculating the cost of housing site development in the project district of this case, 75 square meters and 1,200 square meters of gas pressure site were added according to the modification of the development plan and the implementation plan, but this was changed after the sale price of the resettled housing site was calculated, and such change did not affect the calculation of the sale price. Therefore, it is reasonable to deem that the calculation of unjust enrichment for the plaintiffs and the plaintiffs participating in the plaintiff's succession should not be taken into account.

(3) Nevertheless, the lower court calculated the Defendant’s unjust enrichment on the basis of the premise that the Defendant’s judicial confession was established on the premise that the amount of such confession is included in the site area for basic living facilities, and that such confession cannot be deemed to be against the truth and due to mistake. In so doing, the lower court erred by misapprehending the legal doctrine on the point of time when the costs of a confession and a basic living facilities are calculated, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

C. As to the grounds of appeal on the costs relating to structures and their appurtenants and capital costs, the lower court calculated the basic living facilities installation costs by dividing each cost of the building into the proportion as indicated in its reasoning, on the grounds that both the retaining wall, the incidental cost, and the capital cost are related to the construction of the basic living facilities.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the scope of basic living facilities and the allocation of burden of proof, incomplete hearing,

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs and the intervenors succeeding to the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.