On the first ground for appeal

원심이 적법하게 확정한 사실관계에 의하면, 이 사건 과세기간의 개시일(1990. 1. 1.) 이전인 1989. 11.경 이 사건 토지(행정구역 변경 전 전남 광산군 서창면 마륵리 7의 1 대 9,260㎡) 상에 설치되었던 양계장이 폐쇄되고 계사만이 방치되어 있다가 과세기간 종료일(1992. 12. 31.) 이후인 1994.경 계사가 철거되고 콘크리트 포장이 되어 카센터 등이 들어 서 있다는 것이므로, 원심이 이 사건 토지 전부를 나지로 판단한 것은 정당하고, 이와 달리 이 사건 토지의 일부분이 카센터 등으로 사용되고 있어 그 부분은 유휴토지에 해당하지 아니함에도 원심이 이를 오해하였다는 논지는 이유 없다.

On the second ground for appeal

The court below acknowledged the fact that the plaintiff acquired the land of this case on November 10, 197, and the Minister of National Defense established the area including the land of this case as a military facility protection zone on July 28, 1976, as prescribed by the military facility protection law of the military facility protection zone on July 28, 1976, before the acquisition of the land of this case. The plaintiff acquired the land of this case as a military facility protection zone because it was not known that it was within the military facility protection zone, so such case shall be deemed as a case where the use under the law is prohibited and restricted after the acquisition of the land of this case under Article 8 (3) of the Land Excess Profit Tax Act (Article 4 of the former Protection of Military Installations Act and Article 3 of the Enforcement Decree of the same Act) or the real estate transaction practices at the time. In light of the records, the above decision is acceptable, and there is no violation of law as pointing out the land of this case.

On the third ground for appeal

The issue is that the plaintiffs acquired the land of this case and used it as a site for the mass fraternity, but since the land of this case was no longer used due to the order of the administrative office as the land was incorporated into the urban planning zone due to the change of administrative district, it constitutes the prohibition and restriction of use under the provisions of Acts and subordinate statutes. However, according to the facts established by the court below, the non-party, who leased the land of this case from the plaintiffs on the ground and operated the mass fraternity business around November 1, 1989 as the land of this case was incorporated into Gwangju Metropolitan City, returned it after the plaintiffs discontinued the mass fraternity business at the request of the plaintiffs around November 1989. Thus, even if the lessee temporarily used the land of this case which is the object of lease as a site for the mass fraternity different from the land category, it cannot be said that it constitutes a new prohibition and restriction of use under the provisions of Acts and subordinate statutes added to the land of this case.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)