[택지초과소유부담금부과처분취소][공1998.1.1.(49),132]
[1] The purpose of the provision on the exceptional date for the imposition of the housing site excess ownership charges
[2] Where a housing rental business entity constructed and rents a house, the date on which the charge for excess ownership is imposed
[3] Whether a housing rental business operator constitutes a business operator under Article 11 (1) of the Enforcement Decree of the Housing Lease Act, who did not make business registration under the Act on the Ownership of Housing Sites (negative)
[4] The time limit for the imposition of excess ownership charges in cases where reasons for exclusion of the pertinent housing site from the subject of imposition occur during the period of imposition of excess ownership charges
[5] Whether a multi-household house can be deemed as a multi-household house similar to a multi-household house in light of its substance (affirmative)
[1] As a matter of principle, the main text of Article 25 of the Act on the Ownership of Housing Sites provides that the date of disposal of the housing site, the designation date of the substitute developer, the date of commencement of construction, the date of commencement of lease, the date of commencement of the imposition of the above charges, and the date of occurrence of the reasons for exclusion from the above charges, etc. As the exceptional imposition date, the above provisions on the exceptional imposition date cannot impose the above charges on the owner of the housing site after the occurrence of the reasons for exclusion from the imposition of the above charges, since the above charges cannot be imposed on the owner of the housing site after the occurrence of the reasons for exclusion from the imposition of the above charges.
[2] In a case where an entrepreneur who runs the business of building and leasing a house to another person under Article 11 (1) 2 of the Act on the Ownership of a Housing Site acquires the house for the pertinent purpose, such entrepreneur shall construct the house and lease it to another person, but it constitutes a housing site used and developed in accordance with the plan for use excluded from the subject of imposition of the house under Article 20 (1) 8 of the same Act and Article 26 (1) 5 of the Enforcement Decree of the same Act, and the commencement of construction of the house for lease alone does not constitute a housing site used and developed in accordance with the plan for use. Thus, the imposition date of the excess of the charge for the housing site for the housing site owned by the entrepreneur shall be deemed the commencement date of lease
[3] Even if the owner of an existing housing site starts or starts the construction of the existing housing site in order to operate a rental housing business, the housing site concerned cannot be seen as a site subject to the exemption from the charge for excess ownership because it does not fall under a business operator under Article 11 (1) 2 of the Enforcement Decree of the Act on the Ownership of the Housing Site and Article 29 (1) of the Enforcement Decree of the same Act, even if the owner of the existing housing site starts the construction of the relevant housing site after the commencement of the lease of the housing site, the housing site concerned falls under the housing site subject to the exemption from the charge
[4] In full view of the relevant provisions such as Article 22(1) and Article 25 of the Act on the Ownership of Housing Sites; Article 29 subparag. 4 of the Enforcement Decree of the same Act; Article 26(2) of the same Act; Article 30(3) and Article 24(2) of the Enforcement Decree of the same Act; Article 28 of the Enforcement Decree of the same Act, where a cause for exclusion of the relevant housing site from the subject of imposition occurs during the imposition period of the charges, administrative agencies shall impose the said charges corresponding to the period from the date on which the relevant housing site falls under the subject of imposition to the date on which the cause for exclusion from the subject of imposition arises; and the said charges cannot be imposed
[5] A building permit is issued as a single house and the building registered as a multi-household detached house is physically partitioned so that two or more households can live from the design and construction stage. A fire room and living facilities are installed independently for each household unit, and if the site, walls, corridor, stairs, and other facilities can be jointly used by each household, the apartment house similar to the multi-household house should be deemed as a multi-household house in light of its substance.
[1] Articles 25 and 26(2) of the Act on the Ownership of Housing Sites, Article 29 of the Enforcement Decree of the Act on the Ownership of Housing Sites / [2] Articles 11(1)2 and 20(1)8 of the Act on the Ownership of Housing Sites, Article 26(1)5 of the Enforcement Decree of the Act on the Ownership of Housing Sites / [3] Article 11(1)2 of the Act on the Ownership of Housing Sites, Article 29(1) of the Enforcement Decree of the Act on the Ownership of Housing Sites, Article 5 of the Enforcement Decree of the Act on the Ownership of Housing Sites / [4] Articles 22(1), 24(2), 25, and 26(2) of the Act on the Ownership of Housing Sites, Articles 28, 29 subparag. 4, and 30(3) of the Enforcement Decree of the Act on the Ownership of Housing Sites / [5] Article 11(1)2 of the Act on the Ownership of Housing Sites.
[3] Supreme Court en banc Decision 95Nu10495 delivered on June 11, 1996 (Gong1996Ha, 2204) Supreme Court Decision 95Nu16929 delivered on July 26, 1996 / [5] Supreme Court en banc Decision 92Nu15994 delivered on August 24, 1993 (Gong193Ha, 2656), Supreme Court en banc Decision 93Nu7075 delivered on August 24, 1993 (Gong193Ha, 2671), Supreme Court Decision 96Nu1378 delivered on December 23, 196
Plaintiff (Appellant and Appellee et al., Counsel for the plaintiff-appellant)
The head of Gangnam-gu Seoul Metropolitan Government (Attorney Han-ro, Counsel for defendant)
Seoul High Court Decision 96Gu33459 delivered on March 21, 1997
All appeals are dismissed. The costs of appeal are assessed against each party.
We examine the grounds of appeal.
1. Judgment on the Plaintiff’s grounds of appeal
A. On the first ground for appeal
The main text of Article 25 of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act") provides that in principle, the imposition date of charges shall be June 1 of each year in accordance with the proviso of Article 25, Article 26(2) of the Act, and Article 29 of the Enforcement Decree of the Act provides that the disposal date of the housing site, the designation date of the substitute developer, the commencement date of construction, the commencement date of lease, the date of occurrence of reasons for exclusion from the imposition of charges, etc. As such, the above provision on the exceptional imposition date shall be construed as an exceptional imposition date, and the above provision shall be construed as the imposition date of charges until the date on which the relevant housing site (including the housing site subject to the disposal obligation, as well as the housing site subject to the disposal obligation, as well as the housing site subject to the use and development obligation) becomes impossible for the owner of the housing site
In addition, if an entrepreneur who constructs a house and leases it to another person for the purpose of the acquisition of the housing site for the purpose of the business, the entrepreneur shall construct the housing and lease it to another person, but it constitutes a housing site used and developed in accordance with the plan for use excluded from the subject of imposition under Article 20 (1) 8 of the Act and Article 26 (1) 5 of the Enforcement Decree of the Act, and the starting of construction of the housing for rent does not constitute a housing site used and developed in accordance with the plan for use. Thus, the base date for imposition of charges on the housing site owned by the entrepreneur shall be the starting date of lease and the starting date of construction shall not be deemed the starting date of the construction. Meanwhile, even if the owner of the existing housing site starts or starts the construction of the housing site for the purpose of running the rental housing business, it shall not be deemed that the housing site is exempt from the subject of imposition of charges since he does not fall under the business registration under the business registration under Article 5 of the Enforcement Decree of the Act, Article 11 (1) 2 of the Enforcement Decree.
In the same purport, the court below's imposition period of the instant disposition on the regular portion in 194 is just after the lease commencement date of multi-household houses constructed on the ground of the instant housing site from June 2, 1994 and after the completion of business registration as of April 24, 1995, and there is no error of law in the misapprehension of legal principles as to the standard date of imposition such as theory of lawsuit or the rental housing business operator. There is no reason to argue.
B. On the second ground for appeal
In full view of Articles 22(1) and 25 of the Act, Article 29 subparag. 4 and Article 26(2) of the Enforcement Decree of the Act, Article 30(3) and Article 24(2) of the Enforcement Decree of the Act, Article 28 of the Enforcement Decree of the Act, and Article 28 of the Enforcement Decree of the Act, in a case where a cause for exclusion from the subject of imposition occurs during the imposition period of a charge, administrative agencies should impose a charge corresponding to the period from the date on which the relevant site falls under the subject of imposition to the date on which the cause for exclusion from the subject of imposition arises, and it does not impose
The judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the imposition period of charges like the theory of lawsuit. We do not have merit.
2. Judgment on the Defendant’s grounds of appeal
The building that has obtained a building permit as a detached house and registered as a multi-household detached house in the building management ledger is physically partitioned so that two or more households can live in from the design and construction stage. Each household unit can independently live in an independent residential life in a room and living facilities. If each household is able to jointly use the site, walls, corridor, stairs, and other facilities, then it shall be deemed an apartment house similar to a multi-household house (see, e.g., Supreme Court en banc Decision 92Nu15994, Aug. 24, 1993; 93Nu7075, Aug. 24, 1993; 96Nu1378, Dec. 23, 1996).
In this case where the court below decided that the plaintiff is a rental housing business operator under Article 11 (1) of the Enforcement Decree of the Act in the case where the plaintiff constructed a multi-household house (9 households) on the same scale as the judgment of the court below so that the plaintiff can carry on an independent residential life for 9 households and rents it to another person, it is just in its conclusion as the premise that the plaintiff considers the multi-household house as a real multi-household house in accordance with the above legal principles, and there is no error in the misapprehension of legal principles
3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)