[개발부담금부과처분취소][공2000.2.15.(100),405]
Whether the change of land category is necessary to constitute a development project under Article 5 (1) 10 of the former Restitution of Development Gains Act through the alteration of the form and quality due to physical development activities, such as cutting, banking, and suspension of land on the land (negative)
Article 5 (1) 10 of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997) provides that "a project which requires a change of land category as one subject to development charges, which is prescribed by Presidential Decree," and Article 4 (1) [Attachment 1] 10 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996) provides that "a project involving a change of land category is a development project involving a change of land category, which requires a change of land category or construction of a building as prescribed by the Ordinance of the Ministry of Construction and Transportation" and Article 3-2 (2) [Attachment 2] of the same Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Construction and Transportation No. 93 of Feb. 15, 1997) provides that "a project subject to a separate imposition of development charges following a change of land category shall be deemed to be a change of land category due to such change of land category and land category.
Article 5(1)10 of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997); Article 4(1) [Attachment 1] 10 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996); Article 3-2(2) [Attachment 2] 1 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Ordinance of the Ministry of Construction and Transportation No. 93 of Feb. 15, 1997)
Supreme Court Decision 95Nu8287 delivered on January 23, 1996 (Gong1996Sang, 1343) Supreme Court Decision 96Nu1237 delivered on June 27, 1997 (Gong1997Ha, 2192), Supreme Court Decision 97Nu775 delivered on July 14, 1998 (Gong198Ha, 2143), Supreme Court Decision 97Nu2153 delivered on November 13, 1998 (Gong198Ha, 283), Supreme Court en banc Decision 97Nu2153 delivered on July 23, 199 (Gong198Ha, 283), Supreme Court Decision 198Du12969 delivered on July 16, 199 (Gong198Ha, 283).
Plaintiff (Attorney Kim Jae-won, Counsel for the plaintiff-appellant)
Hanam Market
Seoul High Court Decision 97Gu39850 delivered on October 1, 1998
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal by the defendant litigant are examined.
The lower court determined that, on February 13, 196, the Plaintiff applied for a new construction of 1,345 square meters of the building area on the ground (hereinafter “instant land”) 52.08 square meters, 15 square meters of underground, 200 square meters of the building site and the new construction of a steel structure and a reinforced concrete building (hereinafter “the instant building”) on the 196th anniversary of the construction of the instant building owned by the Defendant, and that, on November 4, 1996, the Plaintiff applied for a new construction of 1,345 square meters of the instant building (hereinafter “the instant building”) on the 196th anniversary of the instant construction site, which was located on the 196th anniversary of the instant building, and that the instant building was subject to a new construction permit of 1,36th of the Enforcement Decree of the Building Act (amended by the Presidential Decree No. 1565, Nov. 11, 197).
However, Article 5 (1) 10 of the Act provides that "a development project which requires a land category change" as one subject to development charges, and Article 4 (1) [Attachment Table 1] 10 of the Enforcement Decree of the Act provides that "a development project which requires a land category change and which requires a land category change" as prescribed by the Ordinance of the Ministry of Construction and Transportation. Article 3-2 (2) [Attachment Table 2] of the Enforcement Decree of the Act provides that the type of a building shall be defined as the type of the building. Thus, it is interpreted that the purpose of Article 5 (1) 10 of the Act is to recover if the land category of the building site is changed solely from the construction of the building site without a physical change in the form and quality of the building site and the benefit of land price increase is generated. Thus, it is reasonable to deem that a development project under these provisions does not necessarily constitute a development project without a land category change due to a physical development act such as cutting, banking, and suspension of the building site, and if the land category change is actually or on the public register due to construction of the building (see Decision 198Du.
Nevertheless, as seen earlier, the lower court determined that the instant building does not constitute a development project subject to development charges solely on the ground that there was no development act changing the form and quality of the instant land, which is its site. In so doing, the lower court erred by misapprehending the legal doctrine on the development project subject to development charges, which is subject to development charges, thereby adversely affecting the conclusion of the judgment (However, if the instant Plaintiff is able to apply for a land category change as miscellaneous land before constructing the instant building, it cannot be deemed a land category change due to the construction of the building, and the lower court also pointed out that it should be deliberated on this point).
Therefore, 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 Lee Im-soo (Presiding Justice)