[2] The case holding that it does not exceed the limit of delegation in the case where the legislation that regards the detached house under Article 2 (2) 1 of the Building Act and the apartment house under Article 2 (2) 2 of the same Act as the same purpose is made in the case where both a building to be removed and a newly built building to be exempted from the infrastructure charges under Article 5 of the former Enforcement Decree of the Infrastructure Charges require the same use as that under each subparagraph of Article 2 (2) of the Building Act

[2] The case holding that the legislative purport of Article 2 (2) 1 of the Building Act and Article 2 (2) 2 of the Building Act are within the limit of delegation, and it is difficult to view that the scope of the same purpose of use was determined and the degree of each infrastructure was not considered to exceed the limit of delegation solely on the ground that both a building to be removed and a newly built building to be exempted from infrastructure charges under Article 5 of the former Enforcement Decree of the Infrastructure Charges Act (amended by Presidential Decree No. 21038, Sep. 25, 2008) require the same use as that of each item of Article 2 (2) of the Building Act.

Article 6(2) of the Infrastructure Charges Act (amended by Act No. 9051 of Mar. 28, 2008; hereinafter “the Act”) provides that “construction subject to infrastructure charges shall be an act of constructing a building with a total floor area exceeding 200 square meters (including the total floor area of an existing building).” Paragraph (3) of the same Article provides that “Where an existing building is removed and a building for each purpose under Article 2(2) of the Building Act is newly constructed within the same purpose as prescribed by the Presidential Decree, it shall be subject to imposition of infrastructure charges only for construction exceeding the total floor area of the existing building.” Article 6(2) of the Enforcement Decree of the Building Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “the Act”). Article 6(2) provides that “Where a building subject to imposition of infrastructure charges is newly built for the same purpose as prescribed by the Presidential Decree under Article 2(2) of the Building Act and Article 2(2) of the Enforcement Decree of the Building Act (hereinafter “the provisions of the Building Act”) are newly constructed for each purpose under the same Article 2(2) of the same Act.”

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and contents of the pertinent provision, the structure of the provision, and the relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which the meaning can be accurately known, it should also be taken into account whether the delegation provision itself exceeds the limits of its literal meaning, or whether the delegation provision is a new legislation beyond the bounds of its literal meaning by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision.

However, as seen above, Article 6(3) of the Act, which is the delegation provision of this case, requires the existing building to be removed as a condition subject to the exemption of infrastructure charges, and the new building to be newly built, to be delegated to the Presidential Decree for the same purpose within the scope of the same purpose as stipulated in Article 2(2) of the Building Act. Thus, the Enforcement Decree shall determine its content within the limit of the same purpose. The same purpose of use is limited to the case where the scope of the same purpose of use is the same under each subparagraph of Article 2(2) of the Building Act. However, the legislation that considers the same purpose of use as a building for the same purpose is limited to the case where the scope of single house under Article 2(2)1 of the Building Act and the apartment house under Article 2(2)2 of the Building Act as a building for the same purpose is within the limit of delegation. Furthermore, it is difficult to see that it alone does not consider the degree of

Nevertheless, the court below held that the decision of the court below is erroneous in the misapprehension of legal principles as to the limit of delegated legislation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

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.

Justices Kim Nung-hwan (Presiding Justice)