[도로수익자부담금부과처분무효확인][집31(2)특,150;공1983.6.15.(706),899]
A. Whether Article 2(1)3 of the Seoul Special Metropolitan City Ordinance on Collection of Charges on Road Beneficiaries violates the upper-tier law (negative)
(b) The purport of Article 5 (2) of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on Collection of Road Beneficiaries Charges
A. Article 66 of the Road Act and Article 2(1)3 of the Seoul Special Metropolitan City Ordinance on the Collection of Charges on Road Beneficiaries fall under the special provisions of Article 56(3) of the Enforcement Decree of the Urban Planning Act, and Article 56(3) of the Enforcement Decree of the same Act shall not be construed to violate Article 65 of the Urban Planning Act. Thus, the concept of "material benefit" under Article 66 of the Road Act shall be construed as "the benefit that is received because the market price of the land at the time of the announcement of the implementation of the project exceeds the amount calculated by adding twice the amount of natural inflation" under Article 66(1) of the Road Act, and it shall not be deemed as a violation of the upper
B. The provisions of Article 5 (2) of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on the Collection of Road Beneficiary Charges shall not be construed as an administrative regulation that the head of the Gu shall follow the appraisal of the land in investigating the market price of the land, and it shall not be construed as a provision that the assessment should be based only on the appraisal results of the Korea Appraisal Board regardless of the actual profits.
(a) Article 65 of the Urban Planning Act, Article 56 (1) and (3) of the Enforcement Decree of the same Act, Article 66 of the Road Act, Article 2 (1) 3 of the Seoul Special Metropolitan City Ordinance on Collection of Charges on Road Beneficiaries, and Article 2 (2) of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on Collection of Charges on
A. Supreme Court Decision 81Nu288 delivered on April 27, 1982; Supreme Court Decision 81Nu127 delivered on November 24, 1981
Plaintiff
Attorney Park Jong-sik, Counsel for the defendant-appellant of Jongno-gu Seoul Metropolitan Government
Seoul High Court Decision 80Gu331,549 (Joint Judgment) Decided December 30, 1981
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal by the defendant's attorney are examined (including the grounds of appeal for supplement).
1. According to the reasoning of the judgment below, the court below recognized the fact that the Road Expansion Corporation was implemented as an urban planning project under Article 65 of the Urban Planning Act lawfully, and determined that the above provision violates Article 56 (3) of the Enforcement Decree of the Road Act, i.e., the above provision of Article 56 (1) of the Enforcement Decree, except as otherwise provided in other Acts and subordinate statutes, and even if the Mayor of the Seoul Metropolitan Government, which is an urban planning project operator, determines matters necessary for the collection of the share of beneficiaries under Article 65 (4) of the Enforcement Decree of the Road Act, the above provision of Article 56 (1) of the Enforcement Decree of the Urban Planning Act, which provides that "the above provision of Article 56 (1) of the Enforcement Decree of the Road Act, shall be deemed to be unlawful since the above provision of Article 6 of the Enforcement Decree of the Road Act, which provides that "the above provision of Article 86 (2) of the Enforcement Decree of the Road Act, which provides that "the above provision of the above Ordinance shall be more effective than the above provision of the Urban Planning Act."
2. According to the records, in determining whether or not there was a significant benefit in the site of this case owned by the plaintiff, the Korea Appraisal Board's appraisal result of the theory is acceptable on the ground that the appraisal result of the plaintiff's appraisal by the Korea Appraisal Board for the same reasons as the opinion of the court below did not accept a comprehensive and flexible appraisal, and the appraisal result of the non-party's appraisal by the non-party to the judgment below is more reasonable, and there is no illegality in the theory of lawsuit, and Article 5 (2) of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on the Collection of Road Share Charges, which points out the issue, is merely an administrative regulation that the defendant shall make an appraisal by the Korea Appraisal Board when investigating the market price of the land, and regardless of the existence of substantial benefit, it is not interpreted that the provision should be calculated only by the appraisal result by the Korea Appraisal Board (see Supreme Court Decision 81Nu127, Nov. 24, 1981).
Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kang Jong-young (Presiding Justice)