(a) The ownership of the original land;

Before the division, the Plaintiff owned Nonparty 1 with the address of 4,079 square meters and the address of 2,529 square meters prior to the division. The Plaintiff owned Nonparty 2 with the address of 1,428 square meters prior to the division ( Address 3 omitted) (hereinafter referred to as “the land” in this case) in the order of Na-gu, Sungnam-si, Sungnam-si, and the address of 2,529 square meters.

(b) Joint purchase;

(1) On June 21, 2001, the plaintiff, the non-party 3, the non-party 4, the non-party 5, and the non-party 6 purchased part of each land before the partition in order to construct each building, and purchased it by dividing it into two lands before the partition, and completed the registration of ownership transfer for convenience, and decided to complete the registration of ownership transfer for each land purchased through the partition procedure

(2) Accordingly, on December 19, 2001, with respect to shares 1,094/4,079 out of the land No. 1 before subdivision, the Plaintiff’s name; ② shares 1,070/4,079 out of the land No. 1 before subdivision; ② shares 237/2,529 out of the land No. 2 before subdivision; and 276/1,428 out of the land No. 2 before subdivision; ③ shares 576/4,079 out of the land No. 1 before subdivision; ③ shares 161/2,529 out of the land No. 2 before subdivision; and shares 398/1,428 out of the land No. 3 before subdivision; ④ shares 1,090/4,079 out of the land before subdivision; ⑤ shares 1,249/79 out of the land before subdivision; and Nonparty 281/278 out of the previous subdivision and the ownership transfer registration to Nonparty 3, respectively, under Nonparty 3’s No.

(c) Co-owned property

(5) The Plaintiff, the non-party 3, the non-party 4, and the non-party 6 are the non-party 1, the non-party 4 and the non-party 6 are the non-party 4 and the non-party 1, the non-party 6 and the non-party 6 are the non-party 1, the non-party 6 and the non-party 1, the non-party 6 and the non-party 5, the non-party 4 and the non-party 5, the non-party 6 and the non-party 1, the non-party 6 and the non-party 5, the non-party 5, the non-party 1, the non-party 4 and the non-party 5, the non-party 6 and the non-party 5, the non-party 4 and the non-party 6, the non-party 5, the non-party 1, the non-party 1, the non-party 12, the non-party 1, the non-party 2, the non-party 34.

(d) Change of land category and merger;

On September 16, 2002, Sii-dong ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), ( Address 8 omitted), ( Address 10 omitted), ( Address 13 omitted), ( Address 13 omitted), and ( Address 6 omitted), ( Address 10 omitted), ( Address 13 omitted) land was combined into Sii-dong ( Address 6 omitted), 826 square meters ( Address 6 omitted) and 826 square meters ( Address 13 omitted), ( Address 19 omitted), ( Address 17 omitted), and each land was combined into a religious site ( Address 2 omitted), 2,211 square meters (number 1,962+249). In addition, on November 3, 2003, ( Address 17 omitted), the land category was changed to a religious site, and the religious site was changed to 12,251 square meters (M249).

(e) Donations;

On May 27, 2002, a road was installed on a 276 square meters in Si-dong ( Address 7 omitted), 256 square meters, ( Address 11 omitted), 237 square meters in Si-dong ( Address 14 omitted), and a road was completed on May 27, 2002 (hereinafter in this case, the land of this case was finally divided, and 815 square meters in Si-dong ( Address 5 omitted), which is the Plaintiff’s ownership, among the combined land, 'the land of this case 1; 'the land of this case 2, Si-dong ( Address 6 omitted), Si-dong ( Address 4 omitted); 'the land of this case 807 square meters in Si-dong ( Address 4 omitted); 'the land of this case 3, 807 square meters in Si-dong, which is the non-party 4-party 4; 'the land of this case 4, the non-party 621, 2214 square meters in Si-dong 7.

(f) Building permission;

(1) Around July 200, Nonparty 7 obtained approval for use from Nonparty 1, 2, and 3 as to each part of the instant land in accordance with an agreement with the Plaintiff, Nonparty 3, and 4, and then requested the Nonparty 1, and 2, who had previously been the owner of the instant land, to conduct design and construction permission procedures to Nonparty 9, a building office, and entered into an agreement with the head of Sungnam-si on September 7, 2001 with the head of Sungnam-si to grant each construction permission on each part of the instant land in the name of Nonparty 1, 2, and 3 under the name of the head of Sungnam-si, with respect to the first-class neighborhood living facilities (retail stores), building area, and one-story building with a total floor area of 160.21 square meters (the second-class 7 purchased each part of the instant land before subdivision from Nonparty 1, 201, and then changed the Plaintiff, Nonparty 3, and Nonparty 4, and the second-class 2, each part of the instant land.

(2) However, the part of the instant land Nos. 1, 2, and 3 are connected to each other, and the part of the instant land Nos. 6, which had been located from the time of the above sales contract or the building permit, was scheduled to be constructed for the sake of a building, which is scheduled to be constructed for each part of the instant land No. 1 through 5, and thereafter, the road was actually constructed, and on May 27, 2002, the land No. 6 of the instant case was registered as owned by Sungnam-si.

(g) Succession, etc. to building permission;

(1) When Nonparty 7 obtained a building permit as above, the Plaintiff and Nonparty 3, etc. concluded a design and supervision contract on the new building with Nonparty 9 on October 2001 and around November 21, 2001 in order to change the size of the new building on the premise that they succeed to the name of the building permit. In the Plaintiff’s case, on December 21, 2001, the building area of the building to be newly constructed on the instant land No. 1 is 160.40 square meters, the total floor area is 812 square meters, the building area is 812 square meters, the building area is 164.25 square meters, the building area of the building to be newly constructed on the instant land No. 2 on February 15, 2002, and the building area to be 492.75 square meters, and the building area is 3 stories on the ground (hereinafter referred to as “each building each of the instant cases”).

(2) On March 15, 2002, the plaintiff, the non-party 3, and the non-party 4 reported the commencement of construction in the name of the non-party 7, and on March 22, 2002, the report was accepted on April 6, 2002 by reporting the change of the construction participants who changed the name of the owner from the non-party 7 to the non-party 7.

(3) Upon completion of the construction work of each building of this case, the Plaintiff and Nonparty 3 obtained approval from the head of Sung-nam Si/Gu for each use on September 10, 2002. The land category of the instant Nos. 1 and 2 changed from the answer and the front.

H. Disposition of this case

On February 10, 2003, the Defendant issued the instant disposition that imposed development charges of KRW 53,595,40 on the Plaintiff.

2. As to the succession to the status of a project implementer

A. The judgment of the court below

According to Articles 5(1)10 and 5(2) of the Restitution of Development Gains Act (hereinafter “the Restitution of Development Gains Act”), Article 4(1)2 and 4(1) [Attachment Table 1] 9 of the Enforcement Decree of the Development Gains Act, the construction of a new building is subject to development charges. In the case of a project in an area outside the Seoul Special Metropolitan City or a Metropolitan City, the area of the land for the project approved under the provisions of the relevant Acts shall be not less than 90 square meters. In light of the above provisions of the Act or the legislative intent of the Act, the lower court determined that the Plaintiff is liable to pay development charges to the non-party 1 and the total area of the land that the non-party 2 succeeded to the status of the non-party 1 and the non-party 3 shall be determined by adding up the existing area of the land that the non-party 2 succeeded to the status of the non-party 9 square meters to the non-party 1 and the total area of the land that the non-party 3 succeeded to the status of the development charges shall be determined.

B. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

The purport of imposing development charges is to properly recover development gains, so the person subject to imposition should be the person to whom the development gains actually accrue, and the project operator, who is a person obligated to pay development charges under Article 6 of the Act, shall be the person to whom the development gains actually accrue, regardless of the name of the project operator (see Supreme Court Decisions 93Nu2940 delivered on July 16, 1993; 92Nu19354 delivered on August 24, 1993, etc.).

Even based on the facts found by the court below, five persons including the plaintiff, etc. purchased part of the specific part of the land before subdivision in order to build their own neighborhood living facilities on June 21, 2001. After the purchase, the non-party 7 applied for a building permit under one's name for the plaintiff, non-party 3, and the non-party 4. After the purchase, the plaintiff and the non-party 3 entered into a construction contract for new buildings on October 2001 and entered into a construction permit for new buildings on November 2001 and changed the name of the plaintiff and the non-party 3 within one week after the commencement of the construction report. According to the records, the plaintiff and the non-party 3 entered into each construction contract for each building of this case with the non-party 10 who are the construction business operator before the change of the above owner's name, and completed each construction project at each expense with the plaintiff and the non-party 3, the owner of each of the development project of this case, which actually belonged to the plaintiff and the non-party 3.

Nevertheless, the court below recognized the operator of each development project of this case as non-party 7 and judged it on the premise of this. Thus, the court below erred by failing to exhaust all necessary deliberations and by misapprehending the rules of evidence, or by misapprehending the legal principles on the project operator who is the person liable for the payment of development charges.

3. As to the joint implementation of the development project

A. The judgment of the court below

Even if the executor of each development project of this case is not the non-party 7, the court below determined that the plaintiff and the non-party 3 purchased the land of this case 1 and the non-party 3 on the same day, and all the non-party 7 obtained a building permit in its name according to the agreement with the non-party 7. Meanwhile, according to the newly constructed evidence, the plaintiff and the non-party 3 requested the same designer (non-party 9) and the construction businessman (non-party 10) to design and construct each of the buildings of this case at the same date or similar time, and the construction work for constructing each of the buildings of this case on the land of this case can be acknowledged that the construction work for constructing each of the buildings of this case was jointly contracted and constructed, and the construction work for constructing each of the buildings of this case can be jointly executed, and therefore, the plaintiff and the non-party 3 should be determined on the basis of the total area subject to the development charges of 16m20,000 square meters.

B. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

Article 4(1) of the Enforcement Decree of the Construction Business Act provides that if a construction project is implemented jointly by several persons within an urban planning zone other than the Special Metropolitan City or Metropolitan Cities, it shall be determined whether the total size of the building is less than 90 square meters (see, e.g., Supreme Court Decisions 95Nu10464, Jul. 12, 1996; 200Du9694, Apr. 24, 200). Article 4(1) of the Enforcement Decree of the Construction Business Act provides that the size of the land subject to the construction project is not less than 90 square meters if the construction project is implemented jointly with the Plaintiff and the same person (including his/her spouse and lineal ascendant and descendant) because it is difficult to view that the land category of the land subject to the construction project is less than that of each new construction project, and thus, it is difficult for the same person to jointly take into account the construction cost of each new construction project to jointly implement the construction project, and thus, it is difficult for them to jointly undertake the construction project.

Nevertheless, the court below recognized that the plaintiff and the non-party 3 jointly implemented each of the development projects of this case. Thus, the court below erred by failing to exhaust all necessary deliberations and by erroneous finding facts against the rules of evidence.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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.

Justices Shin Hyun-chul (Presiding Justice)