[1] In a case where a rental business operator created a housing site through a public project and constructed a publicly constructed rental house with an exclusive area of 85 square meters or less with an obligatory rental period of 85 square meters or less, but did not determine the supply price of the housing site created under the relevant Acts and subordinate statutes that create the housing site, the method

[2] The case holding that in a case where the issue of calculating the maximum construction cost, which is the constituent element of the pre-sale conversion price, was the apartment building constructed with an apartment building with an exclusive area of more than 50 square meters and less than 60 square meters, which was directly created by the Corporation A under the former Housing Construction Promotion Act, after the expiration of the mandatory rental period, the apartment building constructed with an exclusive area of more than 50 square meters and less than 60 square meters was converted into lots to the lessee, the case holding that in a case where the issue is the calculation of the maximum construction cost, which is the unit element of the pre-sale conversion price, the price calculated by applying the "area excluding

[1] Article 9(1) [Attachment Table 1] of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 194, Dec. 16, 2009) provides that the method of calculating the pre-sale conversion price of public rental housing (hereinafter “Attachment Table 1”) shall vary between the relevant housing site cost, which is the constituent element of the pre-sale conversion price of the publicly constructed rental housing, and the case where it is a business owner’s housing site. [Attachment Table 1] subparagraph (a) [Attachment Table 1] subparagraph 2(a) of [Attachment Table 1] of Article 9(1) [Attachment Table 1] of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 194] shall apply to cases where a rental business operator is supplied with a housing site developed by the State, local government, or public institution with the housing site developed by the rental business operator pursuant to the housing site development project and its supply price of the housing site, which is not applicable [Attachment 2].]

[2] In a case where the issue was the calculation of the maximum construction cost, which is the constituent element of the pre-sale conversion price, after the expiry of the mandatory rental period, the apartment building constructed with an apartment building with an exclusive area of more than 50 square meters and less than 60 square meters in a housing site directly created under the former Housing Construction Promotion Act, the case holding that Article 3-3 (1) [Attachment 1] of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance No. 360 of Jun. 27, 2003), which is the basis of the notification of the standard construction cost, is that the "standard construction cost per square meter of public constructed rental housing" as stipulated in the former Enforcement Rule of the Rental Housing Act (amended by Ordinance No. 360 of the Ministry of Construction and Transportation), which is the "standard construction cost per square meter of public constructed rental housing" (hereinafter referred to as the "standard construction cost") with respect to the total construction cost per square meter in addition to the standard construction cost per apartment lot area (hereinafter referred to as the "standard construction cost per square meter)."

[1] Articles 21(1) and (10) of the former Rental Housing Act (amended by Act No. 9863, Dec. 29, 2009); Articles 13(5) and 23(7) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 21744, Sep. 21, 2009); Article 9(1) [Attachment Table 1] and 14 of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs Article 194, Dec. 16, 2009); Article 15(1) and (10) of the former Rental Housing Act (amended by Act No. 7598, Jul. 13, 2005); Article 13(5) and 23(7) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 21744, Sep. 21, 2009); Article 30(1) of the former Rental Housing Act [see current Article 30(1)]

[Attachment 1] List of Plaintiffs (Attorney Kim Jin-hee, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm LLC, Attorneys Jeon Jae-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na87937 decided July 17, 2013

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the plaintiffs' grounds of appeal on attached Form 1, except for the plaintiffs and plaintiffs 34 and 91 as stated in the list of general buyers in attached Form 2.

A. As to the assertion regarding the calculation standard of housing site costs

(1) According to Articles 21(1) and 21(10) of the former Rental Housing Act (amended by Act No. 9863, Dec. 29, 2009); Articles 23(7) and 13(5) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 21744, Sept. 21, 2009); Articles 14 and 9(1) of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 194, Dec. 16, 2009), the sale conversion price shall be calculated [the arithmetic mean of the housing price at the time of the first sale conversion of the housing site at the time of the construction of the housing site at the time of the public institution [the sale conversion price shall be the average of the housing price at the time of the construction of the housing site at the time of the public institution - [the sale price at the time of the first sale price of the housing site at the public institution];

The attached Table of this case separates the method of calculating the cost of a housing site, which is the constituent element of the pre-sale conversion for a publicly constructed rental house, and separates cases where the relevant housing site is a public housing site and an enterprise-owned housing site. The provisions of subparagraph (a) of the attached Table of this case can be deemed to apply directly to cases where a rental business operator is supplied with a public housing site developed by the State, local governments, public institutions, etc. pursuant to the Act, such as the Housing Site Development Promotion Act. Even if a rental business operator directly constructs a housing site through a public project and constructs a publicly constructed rental house with an area of 85 square meters or less in its own size, but does not provide for the supply of a housing site and its supply price, it is difficult to view such housing site differently from the “public housing site” under subparagraph (a) of the attached Table of this case, which assumes that the site of a rental house is a housing site owned by a business operator, and thus, the provisions of subparagraph (a) of the attached Table of this case should not be applied. However, as long as the supply price of a rental business operator does not apply to the housing site.

(2) According to the reasoning of the lower judgment and the record, ① the Korea National Housing Corporation (Korea National Housing Corporation and the Korea Land Corporation were merged with the Defendant on October 1, 2009; hereinafter “Defendant”) decided to newly construct and lease the instant apartment that falls under the publicly constructed rental housing of 13 to 15 stories, or 51.57§³, or 59.97§³, and obtained approval of the housing construction project plan under Article 3 of the former Housing Construction Promotion Act (amended by Act No. 6250, Jan. 28, 2000; hereinafter the same) with respect to the instant apartment construction project on December 23, 200; ② the Defendant purchased the instant apartment site through consultation or acquired through land expropriation; and the Defendant constructed the instant apartment after obtaining a housing construction project plan from the National Housing Fund with the Plaintiff’s housing Fund’s housing purchase price to the lessee on April 203, the Defendant entered the relevant apartment sale agreement with the Plaintiff in the separate sheet with the Plaintiff and the Plaintiff’s remaining period of 200 years after the sale agreement.

Examining such factual relations in light of the legal principles as seen earlier, the Defendant, as a rental business entity, directly created the instant apartment site under the former Housing Construction Promotion Act and constructed the instant apartment site, which is a publicly constructed rental house with an area of 85 square meters or less in its exclusive use area, and converted it to the lessee in preference to the lessee after the expiration of the mandatory rental period. As long as the supply of the housing site and its supply price are not prescribed in Acts and subordinate statutes based on the construction of the housing site, such as the former Housing Construction Promotion Act, and the housing site cost, which is the constituent element of the pre-sale conversion price for the instant apartment site, should

(3) Therefore, the lower court’s determination that the development cost of the instant apartment site should be applied as it is not the supply price discounted in accordance with the housing site development business guidelines, but the development cost of the instant apartment site in calculating the housing site price, which is the constituent element of the pre-sale conversion of the instant apartment site, is justifiable. In so doing, it did not err by misapprehending the legal doctrine as to

The Supreme Court en banc Decision 2009Da97079 Decided April 21, 201, pointed out in the ground of appeal, where a rental business operator directly constructs public rental housing on the housing site developed by him/her under the Housing Site Development Promotion Act, is related to the calculation of the cost of the housing site, which is reflected in the pre-sale conversion price of the public rental housing, and thus, it is inappropriate to invoke the instant case

B. As to the assertion regarding the calculation method of standard construction cost

(1) Articles 14 and 9(1) [Attachment 1](a) of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 144, Jun. 26, 2009) applicable to calculating construction costs, which are the constituent elements of the pre-sale conversion price for the apartment of this case, provide that “The upper limit price for construction costs” shall be the price separately publicly notified by the Minister of Land, Transport and Maritime Affairs (hereinafter “standard construction cost”). In this case, the number of floors of a building shall be applied on the basis of the relevant highest floor of each building; d) provides that “10/100 of the standard construction cost shall be recognized as 15/100 of the total floor area of the underground floor (including underground parking lot area) approved by the person authorized to approve the project plan, and the remaining part shall be recognized as 80/100 of the standard construction cost as construction cost.”

Meanwhile, Article 2 subparag. 10 and 8(5) of the former Rules on Housing Supply (amended by Ordinance of the Ministry of Construction and Transportation No. 2002-270, Dec. 2, 2002; hereinafter “Public Notice of Standard Building Costs”) provides that the maximum construction cost per square meter of publicly constructed apartment units with an area exceeding 50 square meters for exclusive use by its occupant and not more than 630,300 square meters (hereinafter “the maximum construction cost per square meter per square meter”) shall be applied to housing supply area by determining that the maximum construction cost per square meter of publicly constructed apartment units with an area exceeding 630,300 square meters and less than 60 square meters and less than 630,00 (hereinafter “the former Rules”). According to Article 2 subparag. 10 and 8(5) of the former Rules on Housing Supply (amended by Ordinance of the Ministry of Construction and Transportation No. 361, Jun. 27, 2003; the latter Enforcement Decree of the Building Act (amended by Presidential Decree No. 1964, Dec. 16, 19, 20003).

The public notice of standard construction cost of this case did not separately stipulate the specific meaning of the “house supplied area” that is applied to the upper limit of construction cost per square meter of the public rental housing. However, according to the record, it can be known that the upper limit of construction cost per square meter of the public rental housing in the public notice of standard construction cost of this case is about the total cost of all facilities, such as residential facilities, guard rooms, management office rooms and welfare facilities (excluding underground parking lots) that constitute rental housing complex. In addition, in Article 3-3(1) [Attachment 1] of the former Enforcement Rule of the Rental Housing Act (amended by Ordinance of the Ministry of Construction and Transportation No. 360 of June 27, 2003), which is the basis for the public notice of standard construction cost of this case, the upper limit of construction cost of the public rental housing in the public notice of the construction cost of this case is the building cost of the public rental housing (hereinafter “standard construction cost”) and the upper limit of construction cost of the public notice of the construction cost of this case is the (including the upper limit of construction cost) price of 10 square meters.

(2) Therefore, pursuant to paragraph (2) (d)(1) and (d) of the instant calculation standard, in calculating the maximum price of the construction cost under subparagraph (a) (hereinafter “basic maximum price”) with respect to the instant apartment under subparagraph (d) and the additional charges for the construction cost (hereinafter “additional charges for underground floors”) with respect to the area of the underground floor under subparagraph (d), the total amount of KRW 34,026.578 square meters of the total contract area of the instant apartment, recognized by the lower court, should be applied to the total amount of KRW 33,524.78 square meters of the total underground floor area of the instant apartment, excluding KRW 30,524.78 square meters of the total area of the instant apartment, 30,000 square meters of the instant apartment, and the total amount of KRW 1,526,788 square meters of the building cost, and the total amount of KRW 1,501,78,000,000 of the instant aggregate of the construction cost per 360,01,01,06.

(3) The lower court calculated the basic maximum price by applying 630,300,000 won to the maximum construction cost per 1 kilometer of the instant apartment building with respect to the total contract area of 34,026.578 square meters of the instant apartment building, and did not separately add the amount of the underground floor charges for the total underground floor area of 501.78 square meters of the instant apartment building. However, the lower court did not err by misapprehending the legal doctrine on the area subject to standard construction cost under the Rental Housing Act, contrary to what is alleged in the grounds of appeal.

C. As to the assertion on indirect costs

The lower court rejected the assertion that the construction costs should be excluded from indirect costs, such as construction costs, indirect costs, site costs, and general management costs, by deeming that the construction costs refer to all direct and indirect costs invested by the rental business operator in the construction of a building.

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 violation of the rules of evidence as to the input of indirect costs.

2. As to the appeal by Plaintiffs and Plaintiffs 34, and 91 on the list of general buyers

The lower court rejected the claim for return of unjust enrichment by deeming that the provisions on the calculation of conversion price under the Rental Housing Act and subordinate statutes are not applicable to the general buyers who purchased the remaining household after preferential conversion of the pre-sale price to tenants, based on the reasons indicated in its reasoning, and rejected the claim for return of unjust enrichment by deeming that the Plaintiffs 34 and 91 cannot be recognized as having acquired the right to claim for return of unjust enrichment equivalent to the difference between the real conversion price and the conversion price based on the

Although the above plaintiffs filed an appeal against the judgment of the court below, they did not state the grounds for appeal, nor did they state the grounds for appeal as to this part in the appellate brief.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of General Purchasers: omitted

Justices Kim Chang-suk (Presiding Justice)