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

Korea Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

February 29, 2012

Suwon District Court Decision 2006Gahap7224 Decided December 26, 2007

1. The judgment of the court of first instance is modified as follows.

A. The defendant shall pay to the plaintiffs the amount of KRW 20,869,515 as well as the amount of KRW 20,869,515 as to each of them from August 9, 2006 to Plaintiffs 3, 6, and 9; the remaining plaintiffs from the date of each final payment specified in attached Table 1 calculation table 6 to each of the plaintiffs; 5% per annum from March 16, 2012 to the date of full payment; and 20% per annum from each of the following day to the date of full payment.

B. Each of the plaintiffs' remaining claims is dismissed.

2. The total costs of the lawsuit are three-minutes, and 2 are assessed against the plaintiffs, and the remainder is assessed against the defendant.

3. Paragraph 1. A of this Article may be provisionally executed.

1. The plaintiffs' claims and purport of appeal

The judgment of the court of first instance is modified as follows. The defendant shall pay to the plaintiffs 41,41,146 won and each of them at the rate of 5% per annum from the day following the day of each final prohibition of sale in attached Table 1 calculation table 6 to the day of each judgment of the court, and 20% per annum from the next day to the day of complete payment (the plaintiff reduces the purport of the claim at the trial, while the plaintiff reduces the claim, and claims for return of the previous unjust enrichment with respect to the portion of the shares for metropolitan transportation facilities are the primary claim, and adding the claim for compensation for damages caused by

2. The defendant's purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Basic facts

A. On December 18, 200, the Minister of Construction and Transportation designated and publicly announced a small copy of the Seocheon-gu, Seocheon-gu, Seocheon-gu, Seocheon-gu, Bluedong, and Ilcheon-dong as a planned area for housing site development (hereinafter “instant housing site development project”). On September 7, 2001, the Gyeonggi-do Governor approved and publicly announced a housing site development plan by converting the business area into 219,457 square meters, and on December 22, 2001, the housing site development implementation plan was approved and publicly notified.

B. The Defendant (the Korea National Housing Corporation and the Korea Land Corporation were newly incorporated as the Defendant on October 1, 2009) was the project implementer of the instant housing site development project, and as a countermeasure for the relocation of those who would lose their base of livelihood due to the instant housing site development project, the Defendant decided to provide 14 households of public sale of 1,104 households of 14 households of construction and supply on the ground of 58,978 square meters in the instant housing site development project zone, in the same way as the general sale conditions, to those subject to relocation measures.

C. Accordingly, between October 27, 2003 and October 29, 2003, the Defendant concluded an apartment sale agreement with the Plaintiffs, Nonparty 1, and 2 (hereinafter “persons subject to the relocation measures of this case”) excluding Plaintiff 7 and one household among the above apartment units (the contracted area 129.1275mm2 and the site area 54m2) with respect to each apartment unit (hereinafter “each apartment of this case”) with the same amount as the general sale price in attached Table 1 calculation sheet (hereinafter “each apartment unit of this case”).

D. On August 11, 2005, Plaintiff 7 succeeded to the rights and obligations under the instant sales contract by Nonparty 1, and Nonparty 2 died on June 2, 2006, Plaintiff 10 succeeded to the rights and obligations under the instant sales contract by mutual agreement with his heir. Plaintiff 8 entered into a contract on the succession of rights and obligations under the said contract with Nonparty 3 on August 8, 2006, but around October 2006, Plaintiff 8 notified the Defendant of the assignment of claims for the return of unjust enrichment against the Defendant.

E. Meanwhile, the Plaintiffs, who acquired the status of contractor in the sales contract for each apartment of this case through the above process, paid each of the amounts listed in attached Table 1 Calculation Table 5 to the Defendant as the sales price and late payment charge in accordance with each of the above sales contract.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 5 through 16, 24 through 35, Eul 1 through 9 (including each number), the purport of the whole pleadings

2. Grounds for the claim;

A. The Defendant, as a project implementor for the housing site development project of this case, shall bear each of the following costs for installing 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. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”).

(1) Total amount of KRW 44,978,492,321

(A) Costs of the site for the basic living facilities (No. 40,565,008,794)

(B) interest on construction funds related to basic living facilities 3,028,281,969 (No. 7-2)

(C) sales costs related to basic living facilities 115,713,356 (Evidence B7-2)

(d) construction indirect costs related to basic living facilities 425,043,599 won (Evidence B 7-2)

(E) General management expenses related to basic living facilities 844,44,603 won (Evidence No. 7-2)

(2) Total creation cost of KRW 26,971,637,931

(A) Net construction cost for basic living facilities (Evidence B-8) 24,325,064,567

(B) 1,815,928,472 interest on construction funds related to basic living facilities (No. 7-2)

(C) Sales costs related to basic living facilities 69,388,247 won (Evidence B-7-2)

(d) construction indirect costs related to basic living facilities 254,880,088 (Evidence B 7-2)

(E) General management expenses related to basic living facilities (Evidence B-7) 506,376,557

(3) A total of KRW 15,644,151,000 related to apartment construction costs

(A) Apartment Construction Costs of KRW 9,019,226,00 (Evidence A to 25 through 29)

(B) Apartment Telecommunications Construction Costs of 3,213,79,000

(C) 3,411,126,00 won (Evidence A to 25 through 29) for landscaping costs

B. Nevertheless, in entering into each of the instant sales contracts, the Defendant included the sales price in the sales price without deducting the construction cost of basic living facilities to be borne by the Defendant, and the Plaintiffs paid the sales price, which includes the construction cost of basic living facilities, to the Defendant according to each of the above sales contracts.

C. However, the part which did not deduct the cost of the basic living facilities in each sale contract above is null and void in violation of the mandatory law. As such, the Defendant is obligated to pay the Plaintiffs the aggregate of KRW 4,978,492,321 related to the cost of the construction of basic living facilities and KRW 26,971,637,931 related to the cost of the construction under paragraph (1) above and KRW 26,950,130,252 related to the cost of the construction under paragraph (2) below, multiplied by the value calculated by dividing the sum of KRW 13,833 square meters of the site subject to the cost of the housing site development project in this case by 13,833 square meters, and KRW 29,030,94 and ② the aggregate of KRW 15,64,151,000 related to the construction cost under paragraph (3) of the same Article by 139,246.369 square meters, KRW 14,214101,21415

3. Return of unjust enrichment:

Article 78(1) of the former Public Works Act provides that a project operator shall be obligated to establish and implement relocation measures, and the proviso to Article 40(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20722, Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”) provides that a project operator shall be deemed to have established and implemented relocation measures if he/she supplies a house to a person subject to relocation measures under the relevant Acts and subordinate statutes, such as the Housing Act. The main sentence of Article 78(4) of the former Public Works Act provides that the details of relocation measures include basic living facilities according to the relevant local conditions, such as roads, water supply facilities, drainage facilities, and other public facilities.

Comprehensively taking account of the above provisions, the project executor’s special supply of housing to those subject to relocation measures under the proviso of Article 40(2) of the former Enforcement Decree of the Public Works Act is a method of taking relocation measures that can be selected by the project executor based on delegation of Article 78(1) of the former Public Works Act. Thus, it is reasonable to view that the project executor should install basic living facilities under Article 78(4) of the former Public Works Act at the expense of the project executor and provide them to those subject to relocation measures.

However, the purpose of Article 78(4) of the former Public Works Act is to provide a 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 ought to be deemed to mean arterial facilities, such as roads, water supply and drainage facilities, electric facilities, telecommunications facilities, gas facilities, or district heating facilities, which are 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 (see, e.g., Supreme Court en banc Decision 2007Da63089, 63096, Jun.

Therefore, in the sales contract of this case, if the defendant included the cost of the basic living facilities as stipulated in Article 78 (4) of the former Public Works Act in the sales contract of this case and the plaintiffs paid the cost of the basic living facilities to the defendant, this part of the above sales contract is null and void in violation of the above provision, which is a mandatory law, and thus, the defendant is obliged to return the amount equivalent to the cost of the basic living facilities out of the above sales price

4. Scope of unjust gains;

A. Calculation method of unjust enrichment

The fact that the “basic living facilities installation cost” is included in the sales price paid by the plaintiffs in each sales contract of this case, and the cost of installing basic living facilities per 1 square meter of each apartment of this case that the plaintiffs purchased is the cost of installing basic living facilities per 1 square meter of each apartment of this case, and therefore, there is no dispute between the parties that the plaintiffs are entitled to return from

A person shall be appointed.

However, the plaintiffs' land ownership area is 54 square meters or more as recognized earlier. The fact that the area of the housing site development project of this case is 13,833 square meters or more is 133,833 square meters and there is no dispute between the parties. Accordingly, the issue of this case is the item of basic living facilities and the calculation of the cost

However, in light of the provisions of Article 2 subparag. 6 and 10 of the Housing Act, and Article 24(4)2 of the Enforcement Decree of the Housing Act, it is reasonable to deem that the cost of establishing basic living facilities prescribed by the former Public Works Act was partly disbursed among the cost of creating a housing site. Therefore, among the plaintiffs' claims, the part on the electrical construction, telecommunications construction, and landscape architecture on each apartment of this case, which is not the cost of creating a housing site, which is not the cost of creating a housing site, under the premise that the construction of basic living facilities is the cost of creating a housing site

Meanwhile, the cost of housing site development project of this case calculated pursuant to Article 11 of the Housing Site Development Promotion Act is as follows: (i) the cost of housing site development is as follows: (ii) the Defendant classify the cost of housing site into three categories; (iii) the cost of housing site development in a complex; (iv) the cost of urban-based site; and (v) the cost of housing site development; and (v) the cost of housing site development is as follows: (v) the cost of housing site development is as follows; and (v) the cost of housing site development is as follows: (v) the cost of housing site development is as follows: (v) the cost of housing site development is as follows; (v) the cost of housing site development is as follows; (v) the cost of housing site development is as follows; (v) the cost of housing site development is as follows: (v) the total cost of housing site development project is as 244,30 square meters; and (v) the cost of housing site development is directly different from the cost of housing site development; and (v) the cost of housing site is directly determined by the Defendant 213131.

The purchase cost of 107,885,496,00 of the direct cost of the non-permanent project in the main sentence x 23,29,629,925,00 of the No. 230 of the No. 29,629,925,00 of the No. 230 x 11,215,182,00 of the No. 30 x 38,730,600 of the direct cost of the construction in each branch x 3,735,738,00 of the purchase cost of indirect cost of the non-permanent project x 2,367,729,000 of the purchase cost of the non-permanent project x the total indirect cost of the sale management expenses x the total indirect cost of the indirect cost of the 6,103,467,007,148,307,300

(b) Amount computed;

(a) Costs of sites for basic living facilities;

The fact that the total site cost of the instant housing site development project is KRW 107,885,496,00,000, and that the total project area is 219,457 square meters and the road of KRW 59,907 is included in the total project area, there is no dispute between the parties.

According to the relevant provisions of Article 23 of the Housing Act, the above road, the area of which is 59,907 square meters, is one of the main facility items, and can be deemed as falling under the basic living facilities prescribed by the former Public Works Act. In this regard, pursuant to Article 2 subparag. 6 and 10 of the Housing Act, and Article 24(4)1 of the Enforcement Decree of the Housing Act, the road, which is an arterial facility, shall be at least 8 meters in width and at least 200 meters in length, and the corresponding road area is not more than 37,672 square meters in length. However, there is no ground for interpretation as alleged by the Defendant, and the Defendant did not submit any evidence as to the above assertion, and thus, the entire road area of 59,907 square meters in size shall be recognized as the area of the site of

Since the site cost of the above road area of 59,907 square meters, which is a basic living facility, can be calculated by the following formula, the site cost of the living facility of the instant housing site development project is 29,450,39,89,000 won (i.e., total site cost of 107,885,496,000 square meters x road of 59,907 square meters x road of 59,907 square meters x total project area of 219,457 square meters, hereinafter the same shall apply):

A person shall be appointed.

In addition to the above road size of 59,907 square meters, the plaintiffs asserted that the land should be included in the cost of basic living facilities as well as the cost of basic living facilities because the land falls under the site of basic living facilities of the children's park site of 6,607 square meters, green buffer green belt site of 9,938 square meters, and landscape green belt site of 9,172 square meters. Thus, the plaintiffs asserted that the land should be included in the cost of basic living facilities of the housing site of the same kind outside the above housing complex (referring to the "basic living facilities" of Article 78 (4) of the former Public Works Act and the "arterial facilities" of Article 2 subparagraph 10 of the Housing Act and attached Table 2 of the Housing Act are not included in the basic living facilities or arterial facilities. Article 2 subparagraph 10 of the Housing Act provides that the term "arterial facilities" of the housing complex (where two or more facilities are simultaneously developed, referring to the respective housing complex) such as roads, water supply, gas facilities, communications facilities, and district heating facilities.

(b) Costs for creating basic living facilities (construction costs)

With respect to the cost of creating the basic living facilities, the Plaintiffs asserted that the cost of creating the basic living facilities was required as stated in the evidence Nos. 7-2 (B-2 (Presumption of Sale Price in Deputy House), evidence Nos. 8-4 (Presumption of Construction Costs), 5 (Calculation of Land Costs), 6 (Calculation of Land Costs for Basic Living Facilities), 7 (Calculation of Land Costs for Basic Living Facilities), 8 (Land Use Plan), and 8 (Land Use Plan), but the evidence Nos. 7-2, 8-4, 8-5 is related to the estimation of the cost of constructing each apartment complex of this case. The evidence Nos. 8-6 through 8 of the evidence No. 8 is insufficient to acknowledge the cost of establishing and implementing the basic living facilities according to the evidence No. 8-5 of the above Rules.

As seen earlier, the Defendant spent a total of KRW 29,629,925,00 in the construction cost of the instant housing site development project, and included it in the sale price of apartments in the housing site development zone including the Plaintiffs, and among which, the construction cost related to the basic living facilities (excluding KRW 3,014,712,00 in the total construction cost, KRW 90,00 in Korea-China public charges, KRW 900,00 in the total construction cost, and KRW 2,359,601,00 in school facilities charges, and KRW 23,35,61,00 in the total construction cost) is recognized as follows.

15,201,194,00 (2) The cost of electrical construction (1,00,000,000) the cost of the non-public construction (3) the cost of the non-public construction (114847300,000) The cost of the investigation (1139400,672,1005) the cost of the ground investigation (5) the cost of the non-public construction (2,672,100,000 (6) the cost of the water supply facility contributions (1,885,520,520,000 (8) the cost of the water supply facility contributions (109,62,000,000 the total amount of the non-public construction contributions 23,35,612,000.

First of the above costs, there is no dispute between the parties regarding the fact that the construction cost of civil works includes earth and sand, construction cost of roads, packing cost, waterworks construction cost, and sewerage construction cost. According to the Gap evidence 6-3 (Approval of Implementation Plan for Housing Site Development Project of Small-Scale District 2), earth and sand construction cost of KRW 5,000,000, 4,000,000, waterworks construction cost of KRW 1,000,000, and sewerage construction cost of KRW 4,50,000,000 (the aggregate of the construction cost of civil works based on the statement of evidence 6-3 of the above evidence 6-14,50,000,000, this difference between the above construction cost of civil construction cost of KRW 15,201,194,000,000 and approximately KRW 70,000,000,000 from each of the above construction cost of civil works.

However, among the details of the above civil construction costs, the total amount of KRW 9,500,000, which is the cost of creating basic living facilities, should be recognized as the cost of creating basic living facilities, since both the road construction cost, packing cost, waterworks construction cost, and sewerage construction cost are the cost that are paid only as basic living facilities.

① The remainder of the civil construction cost is KRW 5,701,194,00 (i.e., KRW 15,201, 194,00 - KRW 9,500,000), ③ outsourcing design cost, ④ survey service cost, ⑤ Ground Survey cost, and 9,00 square meters of the road recognized as above, but the total project area is not limited to the total project area of KRW 219,457 square meters, and all of them shall be calculated by the following formula.

A person shall be appointed.

Finally, since electrical construction costs, 6th water supply facility contributions, 7th water supply facility contributions, 8th water supply facility contributions, and 8th water supply contributions are all paid to basic living facilities, they are recognized as the cost of creating basic living facilities.

Therefore, the sum of the cost of creating basic living facilities paid by the defendant is KRW 17,977,111.318 as listed below.

(1) The total expenses of the table in the main sentence of this Article shall be 15,201,194,00 partial recognition of 11,05,306,302,2772,000,000 1,000,000,000,313,508,2134,213, 324,759,000,652,1615 ground survey expenses of 113,94,00,000, 240, 240, 207, 209, 207, 207, 208, 209, 207, 209, 207, 209, 207, 3209, 207, 209, 2005, 208, 209, 2008, 209, 2005, 2009,

The plaintiffs claim that the contributions to the metropolitan transport facilities stated in Eul evidence 8-5 and 7 should be included in the cost of creating the basic living facilities. Thus, the plaintiffs' assertion that the contributions to the metropolitan transport facilities stated in Eul evidence 8-5 and 7 should be included in the cost of creating the living facilities. In addition, since there is no evidence to prove that the contributions to the roads of this case fall under the cost of establishing the basic living facilities of this case, the plaintiffs' assertion that the contributions to the metropolitan transport facilities of this case fall under the cost of establishing the above basic living facilities of this case and the "arterial facilities" of Article 2-10, Article 24 (4) of the Housing Act and attached Table 2 of the Housing Act can not be asserted as follows:

However, Article 11-2 subparag. 3 of the former Metropolitan Transport Act provides that no charge shall be imposed on the creation of a housing site and the construction of a house in accordance with the implementation of relocation measures. The defendant paid 2,359,80,000 square meters for the remainder of 214,49,497 square meters in total business area with the exception of 4,967 square meters in the area for relocation measures. In light of the fact that the sale price of each apartment of this case by the plaintiffs is the same as that of the general sale price, the defendant is obligated to return to the plaintiffs the amount equivalent to the share of the share of the share of the metropolitan transport facilities in each apartment of this case, including the plaintiffs, by equally bearing the share of the share of the share of the share of the share of the share of the share of each apartment of this case to the general buyers. Since the share of the share of the share of each apartment facilities in this case is invalid in violation of the former Metropolitan Transport Act, which is a mandatory law.

Furthermore, according to the amount of unjust enrichment, the Defendant has borne the shares in metropolitan transport facilities for the instant housing site development project on the total project area of 219,457 square meters. Thus, the shares in the shares in metropolitan transport facilities for one square meter per site (2,359,801,000 square meters ± 219,457 square meters). The shares in the shares in metropolitan transport facilities for the Defendant’s return to the Plaintiffs are 580,608 won (=10,752 won x 54 square meters).

(c)other costs.

As seen earlier, the defendant paid KRW 1,215,182,00 as direct expenses, sales expenses and general management expenses, KRW 3,735,738,00 as indirect expenses, and KRW 2,367,729,00 as indirect expenses, and included them in the sale price of each apartment in this case against the plaintiffs. Among each of these expenses, the expenses that were paid in connection with the basic living facilities shall be deemed as basic living facilities expenses, and the defendant shall return them as unjust enrichment to the plaintiffs.

However, according to the statement No. 23-1 of the evidence No. 23, the above direct expenses are calculated by multiplying the cost of creation by the construction indirect ratio by the branch office. The above sales expenses and general management expenses are calculated by multiplying the direct expenses (the site cost + the cost of creation + the direct expenses) by the ratio of sales expenses and management expenses. The above indirect expenses are acknowledged to be an amount calculated by multiplying the direct expenses by the ratio of indirect expenses.

Therefore, if the installation cost of basic living facilities included in direct expenses is calculated according to the following formula, the amount shall be 737,276,995 won.

A person shall be appointed.

In addition, if the cost of installing basic living facilities included in the sales expenses and general management expenses is calculated by the following formula, the amount shall be 1,296,981,528 won:

A person shall be appointed.

Finally, if the cost of the basic living facilities included in the indirect cost is calculated according to the following formula, the amount shall be 822,033,230 won.

A person shall be appointed.

C. Sub-decision

The cost of installing the basic living facilities of the instant housing site development project is a total of 50,283,802,961 won (=29,450,39,890 won for the site of the basic living facilities + KRW 17,977,311.318 won for the cost of creating the basic living facilities + KRW 737,276,995 for the direct cost of the basic living facilities + KRW 1,296,981,528 for the sales cost of the basic living facilities and general management cost of the basic living facilities + KRW 82,03,230 for the indirect cost of the basic living facilities + KRW 20,28,907 for the amount to be refunded by the Defendant to the Plaintiffs as unjust enrichment of the basic living facilities (= KRW 54 square meters for the Plaintiff’s site area x KRW 50,283,802,961 for the basic living facilities ± KRW 1383,383).

Therefore, the Defendant is obligated to pay to each of the Plaintiffs the amount of KRW 20,869,515 (i.e., unjust enrichment amounting to KRW 20,288,907 on basic living facilities + unjust enrichment amounting to KRW 580,608 on metropolitan transportation facilities contributions) and statutory interest thereon.

However, the Plaintiffs sought payment of legal interest from the day following the date of each final prohibition of sale to the Defendant. However, Article 748 of the Civil Act applies to the scope of return of unjust enrichment to the extent that the benefits received by a bona fide beneficiary exist, and in the case of a malicious beneficiary, the interest shall be paid to the benefits received in bad faith. There is no evidence to acknowledge that the Defendant, at the time of receiving the sales payment from the Plaintiffs, was aware that the possession of one’s own

However, when a bona fide beneficiary has lost, the defendant is considered to be the beneficiary of bad faith from the time of filing the lawsuit, and since the defendant is the beneficiary of bad faith, the plaintiff 3, 6, and 9 as the beneficiary of bad faith from August 9, 2006, which was clearly recorded that it was the filing date of the lawsuit of this case, and the remaining plaintiffs as the result of the filing of the lawsuit of this case after the filing date of the lawsuit of this case, the above plaintiffs are obligated to return the above plaintiffs with legal interest from

Ultimately, the Defendant is obligated to pay to the Plaintiffs each of the unjust enrichment of KRW 20,869,515 as well as the Plaintiff 3,6, and 9 as to the unjust enrichment of KRW 20,869,515, from August 9, 2006, and to the rest of the Plaintiffs the payment day from the day after each of the final payment day specified in attached Table 1 calculation table 6 to the day after the final payment day, and to pay legal interest and delay damages calculated at the rate of 5% per annum as stipulated in the Civil Act until March 16, 2012, which is the date when each of the Defendant rendered a decision of a reasonable trial to dispute on the existence and scope of the obligation.

5. Conclusion

Therefore, the plaintiffs' claims are accepted within the above recognized scope and the remaining claims are dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above.

[Attachment]

Judges Kim Yong-open (Presiding Judge)