(영문) 대법원 2015.11.26.선고 2014다235714 판결

1. As to the grounds of appeal on the area of a basic living facility for the person subject to relocation measures. Roads which a project implementer is required to provide a basic living facility for the person subject to relocation measures include roads constituting arterial facilities prescribed in Article 2 subparag. 8 of the Housing Act, i.e. roads within a housing complex, which connect to roads of the same kind located outside the relevant housing complex, notwithstanding their length or width (see Supreme Court Decision 2012Da3303, Sept. 26, 2013). Roads installed within a public-service zone by a project implementer, which are essential facilities for the achievement of the functions of a housing complex, etc. and passage of all residents in the housing complex, and are included therein (see Supreme Court Decision 2013Da29509, Jul. 23, 2015).

For the reasons indicated in its holding, the lower court rejected all the Defendant’s assertion that (1) the Defendant’s construction of roads and traffic squares in the instant project district in accordance with the “P New City Land Development Project (0. Q) plan (hereinafter “instant project”) constituted a basic living facility; and (2) the sum of the road area and traffic plaza area in the instant project district is recognized as a basic living facility installation area within the instant project district; and (2) other detached complexes, apartment complexes, and roads in the instant project district, which are irrelevant to the Plaintiffs, cannot be deemed as a basic living facility.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the scope of

2. As to the ground of appeal on the cost of creating basic living facilities

(a) Construction expenses for ecological corridors;

On the grounds indicated in its reasoning, the lower court determined that the construction cost of a structure (bridges, etc.) constituted a basic facility construction cost of KRW 75,790,00,000 as a road subsidiary facility, and based on the evidence evidence No. 8 (Record of Construction Costs), the lower court found the fact that the construction cost of KRW 13,847,00,000 for an ecological corridor is included in KRW 75,790,000 of construction cost of a structure (bridges, etc.).

However, according to Article 2 subparagraph 9 of the Natural Environment Conservation Act, the term "ecological corridor" refers to artificial structures installed to prevent habitats of wild fauna and flora from being isolated, damaged, or destroyed due to roads, dams, underwater water reservoirs, estuary banks, etc. and to maintain the continuity of ecosystems, such as migration of wild fauna and flora, and ecological space such as vegetation. Thus, the construction cost of ecological corridor should not be included in the construction cost of basic living facilities.

Nevertheless, the lower court recognized the total construction cost of the above structure (bridge, etc.) as the construction cost of basic living facilities without excluding the construction cost of the above structure (bridge, etc.). In so doing, the lower court erred by misapprehending the legal doctrine on the construction cost of basic living facilities, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

(b) The post management work and the cost of E.S.;

For the reasons indicated in its holding, the lower court determined to the effect that the amount equivalent to the ratio of the total area of the instant project district to the total area of the living facilities installed in the instant project district constitutes the cost of building the main facilities for the living period.

However, it is reasonable to view that the cost of follow-up management and ES does not constitute the cost of creating the basic living facilities, since it cannot be deemed that it is the cost of maintaining and managing the facilities.

Therefore, this part of the judgment below is erroneous in the misapprehension of legal principles as to the cost of creating basic living facilities, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

For the reasons indicated in its holding, the lower court determined to the effect that, on the grounds indicated in its reasoning, it is reasonable to view that the cost incurred in the installation of basic living facilities and the cost incurred in disposing of such wastes constitutes the cost for creating basic living facilities, the amount equivalent to the ratio of the total area of the instant project district to the total area of the basic living

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on cost of creating basic living facilities, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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.