[1] Whether the operator of a public project is obligated to return the cost of the basic living facilities that he/she should bear to the person subject to the relocation measures in unjust enrichment (affirmative)

[2] Whether a road to be provided as basic living facilities by a project operator who implements a housing construction project or a housing site preparation project within a housing site development project zone, which is a public project, includes all the “road within a housing complex, which connects roads to the same kind of road outside the housing complex, regardless of its length or width (affirmative)

[3] Whether a charge based on measures to improve metropolitan transport in metropolitan areas under Article 7 of the former Special Act on the Management of Metropolitan Transport in Metropolitan Areas constitutes the cost of establishing basic living facilities to be provided as a basis for livelihood to a person subject to measures for relocation (negative), and whether a project operator is liable to return unjust enrichment in cases where the sales price for the sales contract concluded with the person subject to measures for relocation includes

[1] Article 78(1) and (4) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 8665 of Oct. 17, 2007); Article 741 of the Civil Act / [2] Article 78(1) and (4) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 8665 of Oct. 17, 2007); Article 2 subparag. 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009); Article 2 subparag. 2, Article 21(1)2, and Article 23(1) and (6) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 1075 of Feb. 3, 2009); Article 741 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2501, Feb. 19, 207)

[2] [3] Supreme Court Decision 2012Da59268, 59275, 59282 Decided October 17, 2013 / [2] Supreme Court Decision 2012Da3303 Decided September 26, 2013 (Gong2013Ha, 1937), Supreme Court Decision 2012Da92661 Decided October 11, 2013, Supreme Court Decision 2012Da92173 Decided October 17, 2013

Plaintiff 1 and two others

Plaintiff 4

Plaintiff 5 and 14 others (Law Firm Young-soo, Attorneys Lee E-soo, Counsel for the plaintiff-appellant)

Sung-nam City (Law Firm Fence, Attorneys Cho Young-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na12663 decided August 16, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding the plaintiffs' grounds of appeal

A. (1) According to Article 78 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”), a project operator is obligated to establish and implement relocation measures or pay resettlement funds as prescribed by the Presidential Decree for persons who are deprived of their base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter “persons subject to relocation measures”). 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, etc. for the settlement area. Accordingly, the project operator is obligated to return the basic living facilities that he/she should bear to a person subject to relocation measures (the main sentence of paragraph (4)).

(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 ① general squares and green areas except traffic squares, public vacant land, rivers, reservoirs, garbage incineration stations, and automatic garbage collection facilities except for traffic squares are not basic living facilities, so the part area should be excluded from the construction area of basic living facilities; ② gas supply facilities and integrated energy supply facilities are deemed to have been borne by the supplier of the relevant area, and there is no evidence to support that the Defendant had borne such installation cost, and ③ it is difficult to deem that the Defendant supplied the housing site of apartment lots sold to the Plaintiffs to the construction company at a price higher than the construction cost of the housing site, thereby making it difficult to view that the Defendant obtained unjust enrichment by transferring the excess portion to the Plaintiffs, and that such profit cannot be deemed to be the installation cost of basic living facilities. In so doing, it did not err by exceeding the bounds of the principle of free evaluation

B. (1) According to Article 2 Subparag. 8 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009; hereinafter “former Housing Act”), “arterial facilities” refer to facilities that connect the key facilities located outside a housing complex (where two or more housing complexes are simultaneously developed, referring to each housing complex), such as roads, water supply and drainage systems, electrical facilities, gas facilities, communications facilities, and district heating facilities, to the same key facilities located outside the relevant housing complex.

Meanwhile, if a project operator constructs roads corresponding to arterial facilities stipulated in Article 2 subparagraph 8 of the former Housing Act in the course of developing a housing complex by implementing a housing site development project, such roads are responsible for connecting the entrance of a housing complex located outside the housing site development project zone with roads located outside the housing site development project zone, regardless of the length or width of the roads, and are essential facilities for achieving functions such as the housing complex concerned and for passage of residents.

Examining the meaning of arterial facilities under the former Housing Act, the role and utility of arterial facilities as arterial facilities under the said provisions, such as this case, a project operator who implements a housing construction project or a housing site development project within a housing site development project zone, is required to provide a person subject to relocation measures with basic facilities, regardless of their length or width, shall include roads corresponding to arterial facilities under Article 2 subparag. 8 of the former Housing Act, i.e., roads connected to roads outside the housing complex, which are located outside the housing complex.

(2) Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the scope of roads falling under the basic living facilities as stipulated under Article 78(4) of the former Public Works Act and the roads falling under the basic living facilities as stipulated under the Housing Act and its Enforcement Decree, and rejected the Plaintiffs’ assertion that the roads in the instant project district constituted the basic living facilities regardless of their length and width.

C. According to the reasoning of the lower judgment, the lower court rejected the Plaintiffs’ assertion that the amount related to the basic living facilities among the capital cost should be included in the cost of the basic living facilities, on the ground that the capital cost was not calculated at a certain ratio, unlike the direct personnel cost.

However, according to the records, the above capital costs can also be seen as expenses accompanied by or contributed to the construction of basic living facilities, and the "Notice of the Development Costs of Seongbuk-gu Development Project" (Evidence A49) prepared by the Sungnam-gu Development Project Association of the Korea Land Corporation (Evidence A) is stated as "5.44% of sales and management expenses, 5.69% of capital costs, and 0.24% of other expenses," and it can be seen that capital costs are costs calculated by multiplying the total sum of land costs, development costs, etc., by a certain ratio, and thus, they shall not be treated differently from sales expenses, management expenses, other expenses, etc.

Nevertheless, the lower court erred 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 cost of installing basic living facilities.

2. As to the Defendant’s ground of appeal

A. According to Article 2 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 8251, Jan. 19, 2007; hereinafter “former Intercity Transport Act”), the term “metropolitan area” means the area prescribed by the Presidential Decree among the areas located in the Seoul Special Metropolitan City, Metropolitan Cities and their cities under Article 2(1)1 of the Local Autonomy Act and in the same traffic and living zone as the cities (Article 2(1)1 of the same Act; and the term “metropolitan traffic facilities” means transportation facilities for dealing with a wide-area traffic demand of metropolitan areas (hereinafter “wide-area roads”), which meet the requirements prescribed by the Presidential Decree, and “urban railroads or railroads that are operated across two or more Cities/Dos and that meet the requirements prescribed by the Presidential Decree” (Article 2(2)2 of the same Act).

In addition, with respect to the projects prescribed by the Presidential Decree, including large-scale development projects affecting metropolitan transport in metropolitan areas, the former Metropolitan Transport Act provides that the Mayor/Do Governor in the area where the relevant projects are implemented shall establish measures to improve metropolitan transport according to the development projects and submit them to the Minister of Construction and Transportation (Article 7(1)); the Minister of Construction and Transportation shall determine measures to improve metropolitan transport submitted pursuant to the provisions of paragraph (1) through deliberation by the Metropolitan Transport Committee under Article 8; and shall notify the relevant Mayor/Do Governor thereof (Article 7(2)); the head of the relevant central administrative agency; the head of the relevant local government; the head of the relevant local government; and the operator of the relevant development project shall faithfully implement the measures to improve metropolitan transport established pursuant to the provisions of paragraph (2) of the former Enforcement Decree of the Metropolitan Transport Act (amended by Presidential Decree No. 20021, Apr. 20, 2007); the “project prescribed by the Presidential Decree” under Article 7(1) of the Act shall include housing site development projects under the Housing Site Development Promotion Act and the head of the relevant central administrative agency (hereinafter referred to be notified).

In light of the relevant provisions of the former Act on the Improvement of Intercity Transport in the case of a large-scale development project of a metropolitan area including these provisions, the contributions under the measures for the improvement of intercity transport are required for the construction and improvement of metropolitan transport facilities in the course of implementing a large-scale development project in a metropolitan area, and the costs incurred in increasing the value of housing sites and housing in the metropolitan area enjoying benefits therefrom from those who are provided with housing sites or housing in the metropolitan area, the contributions under the measures for the improvement of intercity transport cannot be deemed to constitute the cost of establishing basic living

Meanwhile, Article 11-2(1)3 of the former Act on Special Cases concerning the Acquisition of Land for Metropolitan Transport and the Compensation for Loss of Land for Public Transport and Article 11-2(1)3 of the former Act provides that a project shall be exempted in the case of a housing site creation and a housing construction project in accordance with the implementation of relocation measures under Article 8 of the former Act on Special Cases concerning the Acquisition of Land for Metropolitan Transport and the Compensation for Loss thereof. However, this provision merely provides that a Mayor/Do Governor, who is the authority imposing the charges for metropolitan transport facilities, shall exempt the project operator from the liability to pay the charges for metropolitan transport facilities by allowing the Mayor/Do Governor, who is the authority imposing the charges for metropolitan transport facilities, to reduce the burden of payment of the project operator. In cases where the development project operator actually paid the charges for metropolitan transport facilities in the course of the creation of housing site and the construction of housing, even if the housing site includes the person subject to relocation measures, it does not constitute a provision that excludes the charges actually paid from the calculation of the charges for metropolitan transport facilities in accordance with the improvement plan.

B. However, according to the reasoning of the judgment below and the evidence adopted by the court below, the project of this case includes the following facts: the area of 9,307,148 square meters, the accommodation number of 29,674 households, which correspond to large-scale development projects; and the measures to improve metropolitan transportation which became final and conclusive with respect to the above project include the means that the Defendants share 440 billion won, which is 37% of the construction cost of Youngyang-Yan-Yan roads, and 18% of the construction cost of status party railroads, and 420 billion won among the construction cost of status party railroads. Thus, it is reasonable to view the contributions of this case, which are these contents, as the contributions in accordance with the measures to improve metropolitan transportation under Article 7 of the former Metropolitan Transport Act. Accordingly, in light of the above legal principles, the instant contributions do not constitute the installation cost of basic facilities, and even if the amount equivalent to

Nevertheless, the lower court determined that the Defendant should return the portion of the instant contribution included in the sale price paid by the Plaintiffs as unjust enrichment, which is erroneous by misapprehending the legal doctrine on the relevant provisions of the former Metropolitan Transport Act.

3. Conclusion

Therefore, the judgment of the court below is reversed, and 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 Park Poe-young (Presiding Justice)