(영문) 대법원 2016.2.18.선고 2015다21189 판결

According to the reasoning of the judgment of the court below and the record, the defendant shall supply the housing site for migrants based on a multi-resident 165m square meters or 265m square meters per parcel pursuant to the "established Rules on the Establishment and Implementation of Relocation Measures of the former Korea Land Corporation": Provided, That this shall not apply where it is inevitable in consideration of the conditions of the relevant project district, such as the allocation of shares, the land utilization plan, and the efficiency of land use, and the real estate market trend in the relevant region, etc., and the supply price of the housing site is determined by comparing the amount calculated by subtracting the cost of basic living facilities according to the defendant's calculation method and the amount equivalent to 80% (Seoul Metropolitan area and Metropolitan City area) or 70m (other areas) of the cost of the housing site development. In the event of supplying a parcel exceeding 265m square meters, the excess portion shall be supplied at the appraised price for the housing site development project.

Therefore, since the part supplied by the Defendant to the Plaintiffs, who are eligible for relocation measures, in excess of 265 square meters, is the same as the part supplied to the general buyers rather than the content of relocation measures, the installation cost of basic living facilities equivalent to the excess portion should be transferred equally with the general buyers. Therefore, it is reasonable to include the excess portion in the lawful sale price by calculating the appraisal price (see, e.g., Supreme Court Decisions 2012Da95325, Jan. 23, 2014; 2012Da203478, Feb. 13, 2014).

Examining the above facts in light of the aforementioned legal principles, the court below was just in holding that with respect to the portion supplied by the Defendant exceeding 265 square meters, which was supplied by the Plaintiff BE, Q,Y, AC, AD, AI, AK, Q, AV, AV, N,00, P should bear the cost of basic living facilities on an equal basis with the general buyers. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal principles on the burden of

(b) Whether the retention area and the total business area of the reduced area are excluded;

(1) In order to calculate part of the cost of sites for basic living facilities and the cost of creating basic living facilities, the lower court, using the method of multiplying the total cost of the site or the cost of creating basic living facilities by the total project area, 26,50 meters of the preserved area and the total project area of the instant project district including the reduced area of urban support facilities 198,714 meters.

(2) According to the reasoning of the judgment below and the record, although the housing site development cost, which forms the basis for the determination of the sale price of the housing site for migrants, was not determined in the housing site development plan and implementation plan, among the urban support facilities site, the Defendant treated the area scheduled to be supplied without compensation as the primary infrastructure site, but excluded it from the temporary disposal area, and included it in the total project area. As the site corresponding to the above depreciation area is planned as the initial urban support facility site, the fact that the site cost and construction cost already spent are already spent can be revealed. Thus, the site corresponding to the depreciation area of this case is excluded from the site which is ultimately supplied with compensation but is supplied without compensation after the creation work, it can be seen that the housing site development project of this case is included in the scope of implementation. If the depreciation area of this case is excluded from the total project area, the cost burden incurred for the remaining portion can be increased by more than the proportion of the installation cost of the living facilities in the process of other parts than the total project area. Therefore, it can be reasonable to calculate the above project area.

In the same purport, the lower court is justifiable to have determined that the area that the Defendant handled as the sensitive area is included in the total business area. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err 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 calculation

(3) However, it is reasonable to exclude the area of the site from the total area of the project when calculating the cost of the basic living facilities according to the size of the site, in full view of the following: (a) the cost of the basic living facilities is determined by the method of calculating the cost of the site; (b) the cost of the basic living facilities is determined by the method of calculating the cost of the site; (c) the cost of the basic living facilities, other than the total area of the site, if the cost of the site is included in the total area of the site, would vary depending on the size of the site; and (d) the cost of the basic living facilities, etc., in calculating the cost of the basic living facilities, etc., should be excluded from the total area of the project (see Supreme Court Decision 2014Da85391, Jul. 9, 2015).

Nevertheless, the lower court calculated the cost of installing basic living facilities by including the area of the retention site in the total business area. In so doing, the lower court erred by misapprehending the legal doctrine on the method of calculating the cost of installing basic living facilities, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with

For the reasons indicated in its holding, the lower court determined that only the portion of a square of 27,291 meters remaining 27,291 meters, excluding the portion of 306,920 square meters which is attached to a traffic plaza, among the 334,211 square meters in the instant project district, falls under a road facility and is included in the basic

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the scope of basic living facilities. D. In a case where a project proprietor, as to whether the area of basic living facilities of substations, gas supply facilities, and integrated energy supply facilities, supplied the site for facilities to a person who supplies electricity, gas, heating, etc. at least the cost of developing the housing site, the site cost cannot be deemed to have been transferred to the cost of supplying the housing site, and thus, such determination shall not be included in the cost of installing the basic living facilities (see, e.g., Supreme Court Decisions 2012Da95301, Jan. 16, 2014; 20

The court below rejected the plaintiffs' assertion that each of the above sites should be included in the construction area of basic living facilities on the ground that there is no evidence to deem that the defendant had paid the site cost to the plaintiffs, including the sale price, after recognizing that the defendant supplied the site of transformation stations, gas supply facilities, and integrated energy supply facilities to the Korea Electric Power Corporation, the Korea Gas Corporation, and the Korea District Heating Corporation with at least a housing site development cost.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the

E. (1) The lower court determined that only the amount equivalent to the percentage of the road area, which is the basic living facilities for the entire road area in the instant project zone, among the road area in the instant project zone, constitutes the basic living facilities, on the premise that the remaining part of the road area, excluding motorways, among the total road area in the instant project zone, constitutes the road that is the basic living facilities. The lower court determined that only the amount equivalent to the percentage of the road area, which is the basic living facilities for the entire road area in the instant project zone, is included in the cost of installing the basic living facilities.

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, it is clear that the construction cost of the road-related construction cost is unrelated to the construction cost of the road that is to be developed by the project implementer of the project of this case, not the project implementer of this case, but to the joint implementer of the project of this case, including the defendant, and the defendant calculated the cost of KRW 40 billion for the housing site development cost in addition to the construction cost of the road-related construction cost. In full view of these circumstances, the construction cost of the road-related construction cost of the road is a cost unrelated to the construction of the Gyeong-Seoul Highway and the Gyeong-Seoul Highway, which is to be high enough to constitute the installation cost of the road which is a basic living facility.

Nevertheless, the lower court, without properly examining this, included only the amount equivalent to the percentage of the road area, which is the basic living facilities for the entire road area, among the expenses for installation of roads, packaging and street lamps, solely for the reasons indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the expenses for installation of basic living facilities, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

(f) Whether the cost of basic living facilities related to metropolitan transport facilities is included;

In addition to the purport of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (Amended by Act No. 2007 and Act No. 8251, Jan. 19, 200), the charges for intercity transport facilities imposed only in metropolitan areas are required for the construction and improvement of intercity transport facilities in metropolitan areas, and are imposed on the project operator by the Mayor/Do Governor for the cost incurred in increasing the value of the housing sites and housing in metropolitan areas. In light of the fact that those who are provided with a housing site for relocation measures who are provided with a housing site for migrants in metropolitan areas have profits from the construction and improvement of intercity transport facilities, the charges for intercity transport facilities cannot be deemed to fall under the cost of installing the main residential facilities to be provided to the person subject to the relocation measures as a basis for their life (see, e.g., Supreme Court Decisions 2012Da84233, Jan. 23, 2014; 2012Da87492, Mar. 13,

In the same purport, the lower court is justifiable to exclude the cost of metropolitan transport treatment from the cost of creating basic living facilities. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, misapprehending the legal doctrine

(g) Whether the installation costs of basic living facilities are recognized for structures and the reserve fund;

(1) Of the cost of housing site development, the cost of the item included in the cost of the construction of the housing site is recognized to have been spent as the cost of the cost of the construction of the basic living facilities, namely, the relationship between the cost of the construction of the basic living facilities and the cost of the cost of the construction of the basic living facilities. However, the cost of the basic living facilities is included in the cost of the basic living facilities within the ratio of the total or total project area of the cost of the construction of the basic living facilities, and the burden of proof of the relevance lies in the assertion that the cost of the relevant item is the cost of the basic living facilities (see

(2) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court is justifiable to have determined that the cost of installing structures does not include the cost of installing basic living facilities on the grounds stated in its reasoning, and there was no error by misapprehending the legal doctrine on the scope of the cost of installing basic

(3) However, the lower court determined that the cost of the reserve fund is not included in the cost of the basic living facilities. However, it is difficult to accept such determination for the following reasons. According to evidence duly adopted by the lower court, the cost of the reserve fund item is an item of the cost appropriated in preparation for unexpected construction works during the construction of housing site, and thus, it is reasonable to deem that the cost of the construction of the basic living facilities equivalent to the ratio corresponding to the size of the installation of the basic living facilities out of the total project area, considering the nature of the expenditure item. Therefore, the lower court erred by misapprehending the legal doctrine on the scope of the cost of the basic living facilities, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error

H. Whether the gap rate in calculating unjust enrichment is applied

Where a project operator separately determines the sales price of a resettled housing site by applying a gap within the discretionary scope, it may be deemed that the development cost of the entire resettled housing site has been differentiatedly allocated to each resettled housing site in accordance with the conditions of the location. As such, when calculating the development cost, basic living facilities installation cost, and reasonable sales price for the individual resettled housing site, it shall be calculated by reflecting the relevant gap (see Supreme Court Decisions 2014Da6572, Aug. 20, 2014; 2014Da11406, Aug. 20, 2014).

According to the reasoning of the judgment below and the record, the defendant set the unit price for supply of housing sites to be sold to the person subject to relocation measures not exceeding 265m of the housing site development project district of this case, which is specially sold to the person subject to relocation measures pursuant to the "established Rules on the Establishment and Implementation of Relocation Measures", as 1,691,804 won per square meter, and calculated the applicable area of the gap by multiplying the gap rate by the difference rate calculated by comparing the standard land location conditions of each of the housing site of this case by the difference rate calculated by multiplying the individual location conditions of each of the housing site of this case by the total amount applied to the development cost, and then calculated the amount applying the difference rate by multiplying the total amount applied to the development cost by the rate

In light of the above legal principles and the above facts, it is reasonable that the court below calculated the gap rate applied by the defendant in calculating the selling price in determining the legitimate selling price. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the calculation of unjust enrichment, or by violating

2. As to the Defendant’s ground of appeal

(a) Scope of roads included in basic living facilities;

A road for which a project operator is required to provide basic facilities to a person subject to relocation measures shall include both the roads corresponding to arterial facilities as defined in Article 2 subparag. 8 of the Housing Act, i.e., the roads located outside the relevant housing complex, and the roads connecting the same kind of roads located outside the relevant housing complex, notwithstanding its length and width (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). A road installed by a project operator in a public-service zone and connecting the entrance of a housing complex, etc. inside the relevant housing complex, etc. and other roads located outside the relevant project district, except in extenuating circumstances (see Supreme Court Decision 2013Da29509, Jul. 23, 2015).

Examining the reasoning of the judgment below in light of the above legal principles and the records, it is just for the court below to have determined that high speed roads between the State-funded local highways 23 lines, 57 lines, CDs, CE, and decentralization established within the instant project district constituted roads as basic living facilities, on the grounds as stated in its reasoning, and there were no errors by misapprehending the legal principles as to the scope of roads included in the basic living facilities, as otherwise alleged in

(b) Whether the total cost of construction of basic living facilities is recognized for each underground lane, tunnel, bridge, and bridge;

For the reasons indicated in its holding, the lower court determined that the full amount of the cost of installing underground roads, tunnels, bridges (road bridges, etc.) and bridges (rivers) in the instant project district constituted the cost of creating basic living facilities.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

The lower court determined that, on the grounds indicated in its reasoning, it is reasonable to view that construction waste disposal costs were used for the entire construction project of the instant case, on the grounds that the Defendant could not avoid construction waste generated in the process of installing a basic living facility in the instant project district and it appears that it would be inevitable for the Defendant to incur expenses for the disposal thereof, and that the part corresponding to the ratio of the area of the basic living facility installed to the total project area

However, we cannot accept the above judgment of the court below for the following reasons.

Of the cost of housing site development, the cost of the item appropriated for the cost of creating a housing site is recognized as having been spent for the relevant cost of the cost of the construction of basic living facilities, i.e., the cost of the cost of the cost of the construction of basic living facilities, and the cost of the cost of the construction of basic living facilities, within the percentage of the area of the installation of basic living facilities to the total or total project area, and the burden of proof of such relevance is the burden of proving that the cost of the relevant item is the cost of basic living facilities (see Supreme Court Decision 2014Da8539

Examining the record in light of the above legal principles, since it is unclear whether the cost of construction waste disposal cost is the cost spent for any purpose in the instant project district, it is difficult to view that the expense is related to the construction of basic facilities. Nevertheless, the lower court determined otherwise that the part corresponding to the ratio of the total project area of construction waste disposal cost to the total project area is included in the cost of basic facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the cost of basic facilities and the burden of proof, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. 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.