[2] Whether an area necessary to secure building-to-land ratio of existing buildings among excess-owned housing lots is excluded from the subject of charges (negative)

[3] Requirements for the exclusion of housing sites which cannot be constructed due to the restriction on construction permission under the provisions of Article 12 of the Building Act from the imposition of charges

[4] The proportional distribution and calculation method of the amount of shares to be borne by each household member for the shares of excess housing sites owned by each household

[2] Whether a housing site exceeding the upper limit of the ownership of each household constitutes a housing site excluded from the imposition of charges under Article 20 (1) 3 or 4 of the Act on the Ownership of the Housing Site shall be determined by whether construction on the excess housing site is legally or factually impossible, and it shall not be deemed that a part of the excess housing site is impossible to construct the corresponding area on the ground that the building-to-land ratio needs to be secured for existing housing, etc.

[3] As a result of the restriction on construction permission under the provisions of Article 12 of the Building Act, a housing site which becomes unable to be constructed according to the intention of the owner of the relevant housing site may be treated as a housing site for which the period of use and development obligation is extended or it is practically impossible to be constructed as long as such restriction period, and it may be excluded from the subject of imposition of charges. In order to be excluded from the subject of imposition of charges, even though it is not necessarily required to apply for construction permission under the Building Act, it shall be recognized that at least it has the intention and ability to construct,

[4] Article 21(3) of the Act on the Ownership of Housing Sites provides that, in cases where the subject of charges is a housing site by household which exceeds the upper limit of the ownership of each household (Article 19 subparag. 1), if there are not less than two members, the owner of the relevant household’s housing site is obligated to pay charges in proportion to the price of the relevant housing site. It is clear that the term “price of the housing site” in this provision refers to the total price of the housing site owned by a member of a household, i.e., the housing site that is owned by a member of a household, and that it does not mean only the price of the housing site that is subject to charges among the housing sites owned by a member of a household

A. On the first ground for appeal

According to the provisions of the Act on the Ownership of Housing Sites, the Act shall enter into force on the date two months have elapsed after its promulgation in Seoul Special Metropolitan City, etc. (Article 1 of the Addenda), and any housing site exceeding the upper limit of each household at the time of the enforcement of the Act shall be regarded as a housing site for which permission was obtained under the provisions of Articles 10 through 15 of the Act (Article 2(1) of the Addenda). The owner of such housing site shall submit a use plan under the provisions of Articles 10 through 15 of the Act within the period prescribed by the Presidential Decree (Article 2(2) of the Addenda). In this case, the disposal, use and development period of the housing site shall be within the disposal, use and development period under the provisions of Article 16 or 18 of the Act, counting from the date of the enforcement of the Act, and during that period, it shall be excluded from the imposition of charges

In addition, Article 3(1) of the Addenda of the Act provides that "the charges for housing sites falling under any subparagraph of Article 19 at the time this Act enters into force shall not be imposed within two years from the enforcement date of this Act. If charges are imposed after the lapse of two years, the date falling under any subparagraph of Article 19 shall be deemed the date falling under any subparagraph of the same Article." This purport is to postpone the imposition of charges for a period of two years from the enforcement date of this Act so that it can dispose of the housing sites exceeding the ownership limit within that period or escape from sanctions on the imposition of charges by using, developing, and developing the housing sites for a period of two years from the enforcement date of this Act. The purport is that any housing sites exceeding the ownership limit of each household at the time of the enforcement of this Act does not mean that charges shall not be imposed uniformly only for two years, regardless of the period of disposition, use, and development obligations provided for in Article 16 or Article 18 of the Act, and thus, Article 3(1) of the Addenda of the Act unfavorable to those who acquired the excess housing sites owned before the enforcement date of this Act.

Although the reasoning of the court below is somewhat insufficient, it is just to reject the plaintiffs' assertion to the same purport, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit. There is no reason to argue.

B. On the second ground for appeal

Whether a housing site exceeding the upper limit of the ownership of each household constitutes a housing site excluded from the imposition of charges under Article 20 (1) 3 or 4 of the Act shall be determined by whether construction on the excess housing site is legally or factually impossible, and it shall not be deemed that part of the excess housing site is a housing site that cannot be constructed on the ground that it is necessary to secure the building-to-land ratio of existing housing, etc.

On a different premise, we cannot accept the argument that the judgment of the court below contains an error of law such as incomplete deliberation, misconception of facts due to the violation of the rules of evidence, or misapprehension of legal principles.

C. On the third ground for appeal

As a result of the restriction on construction permission under Article 12 of the Building Act, a housing site which cannot be constructed according to the intention of the owner of the housing site concerned may be excluded from the subject of imposition of charges because the period of use and development obligation is extended as much as the restriction period or it is de facto impossible to construct it. In order to be excluded from the subject of imposition of charges, even though it is not necessarily required to apply for construction permission under the Building Act, it has the intention and ability to construct it, but it is not possible to construct it due to the restriction on the construction permit (see Supreme Court Decision 94Nu7805 delivered on December 23, 1994). According to the records, the Minister of Construction and Transportation has restricted the construction permission for buildings exceeding a certain period from May 15, 1990 to December 31, 192, which belongs to a part of the period of imposition of the charge, from the total area of the building permit as part of the countermeasures against construction competition, it can only be recognized that the Plaintiff’s construction permit was prepared for 16th or more of the above construction permit.

In addition, during the above period, the head of the Gu having jurisdiction over the location of the above housing site shall only publicly announce the above restrictions on construction permission by the Minister of Construction and Transportation, and shall not be deemed to have restricted construction by administrative guidance. The reason that the construction of a building with a total floor area of not less than 1,00 square meters is impossible under the conditions adjacent to a road under the Building Act shall not be deemed to be a case where it is actually impossible to construct a building under the latter part of Article 20 (1) 3 of the Act. Therefore, the housing

Although the reasoning of the court below is somewhat inappropriate, the conclusion of rejecting the plaintiffs' assertion is just, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles due to the violation of the rules of evidence or incomplete deliberation, such as the theory of lawsuit, etc.

2. We examine the grounds of appeal by Defendant Litigation Performers

Article 21(3) of the Act provides that in the case of a housing site by household, the subject of the charge is a housing site by household, the ownership of which exceeds the upper limit by household (Article 19 subparag. 1), if there are not less than two members, the subject of the charge shall be liable to pay the charge in proportion to the price of the housing site. The "price of the housing site" in this provision refers to the total price of the housing site owned by a member of a household, that is, that is, the housing site, that is, the entire price of the housing site that is not subject to the charge that is not subject to the charge that is owned by a household, and it is evident that it does not mean only the price of the housing site that is subject to the charge among the housing sites owned by a member of a household (see Supreme Court Decision 95Nu838

Nevertheless, the court below calculated the price of only the housing site subject to charges, excluding 660 square meters out of the size of the housing site, and calculated the amount of reasonable charges that the plaintiffs should pay in proportion to the price of each housing site owned by the plaintiffs. Thus, the court below erred by misapprehending the interpretation and application of Article 21(3) of the Act. Thus, there is a reason to point out this error.

3. Therefore, by accepting the defendant's appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. All appeals by the plaintiffs are dismissed, and the costs of appeal are assessed against the losing plaintiffs. It is so decided as per Disposition by the assent

Justices Kim Jong-sik (Presiding Justice)