[종합토지세등부과처분취소][공2005.3.15.(222),425]
[1] The scope of "private roads established for the purpose of free passage of the general public" under Article 194-7 subparagraph 1 of the Enforcement Decree of the former Local Tax Act, which is subject to the exemption of aggregate land tax
[2] In a case where an open space (open space) created by placing a distance from the construction line in accordance with related provisions, such as the Building Act, is offered to many unspecified persons for traffic, whether it is excluded from the object of non-taxation as stipulated in the proviso of Article 194-7 subparagraph 1 of the former Enforcement Decree of the Local Tax Act (negative)
[1] Article 234-12 subparag. 6 of the Local Tax Act, Article 194-7 subparag. 1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 16673 of Dec. 31, 1999), "private roads opened for the purpose of free passage of the general public" is not limited to the private roads opened with permission under Article 4 of the Private Road Act, and even if the private roads are established for the purpose of providing them for the original specific purpose from the beginning, in light of all the circumstances such as the use status of the private roads, connection of the public roads, and surrounding housing sites, if the owner of the private roads does not restrict the passage of the general public, and in fact, are widely used for the passage of many and unspecified persons, such private roads include all of them.
[2] In an objective and comprehensive examination of the utilization status of an open space (open space), development details of a private road, possibility of exclusive use by a site owner, etc., if the site owner has no public passage passage around the site owned by the general public or it is inevitable to provide such an open space (open space) as a passage to many and unspecified persons due to lack of access roads, it does not constitute "open space within a site" under the proviso of Article 194-7 subparagraph 1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 16673 of Dec. 31, 199) if there is no possibility for exclusive or exclusive use and profit-making.
[1] Article 234-12 subparagraph 6 of the Local Tax Act, Article 194-7 subparagraph 1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 16673 of Dec. 31, 199), Article 4 of the Private Road Act / [2] Article 234-12 subparagraph 6 of the Local Tax Act, Article 194-7 subparagraph 1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 16673 of Dec. 31, 199), Article 4 of the Private Road Act
[1] [2] Supreme Court Decision 99Du8633 delivered on May 8, 2001 (Gong2001Ha, 1413) / [1] Supreme Court Decision 92Nu9456 delivered on April 23, 1993 (Gong193Ha, 1596)
Hotel Pream Co., Ltd. and one other (Law Firm Pacific, Attorneys Song Jin-hun et al., Counsel for the defendant-appellant)
The head of Songpa-gu Seoul Metropolitan Government (Attorney Kim Chang-chul, Counsel for defendant)
Seoul High Court Decision 99Nu13644 delivered on February 8, 2002
All appeals are dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
Article 234-12 subparag. 6 of the Local Tax Act (hereinafter referred to as the "Act"), Article 194-7 subparag. 1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 1673 of Dec. 31, 199; hereinafter referred to as the "Enforcement Decree") provides that "private roads established for the free passage of the general public" shall not be limited to the private roads established with permission under Article 4 of the Private Road Act, and even if the private roads are established for the purpose of providing for the free passage of the general public, it shall be deemed that the private roads are not subject to any restriction on the passage of the general public, and if the private roads are not subject to any exclusive use of and profit-making from the site, it shall be deemed that there is no possibility that the owners of the private roads will be allowed to use the public roads for the purpose of using them for the original purpose, and it shall be included in the aggregate land tax if they are widely used for the passage of the general public.
The court below held that the part of the land in this case, including the actual conditions of the use of the land in this case, the connection status of the public road, and surrounding circumstances, among the land in this case, shall be deemed to be a private road widely used for free passage of many and unspecified general public in lieu of the main role as a sidewalk because most of the existing Si/Gun/Gu roads are incorporated into a roadway, and the part of 10,030.6 square meters in this case, among the above part of paragraph and paragraph (2) shall be deemed to be a private road which is located in lieu of the main role as a sidewalk. In light of the above legal principles and records, even if the above private road part is a public road created by placing a distance from the building building line under the related provisions such as the Building Act, it shall not be deemed to be a "public road within the above proviso excluded from non-taxation," since there is no possibility that the plaintiffs who are the site owners may exercise exclusive and exclusive control over the above part as a passage of many and unspecified persons, it shall not be deemed to be an "public road within the ground for appeal."
Therefore, all appeals are 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 on the bench.
Justices Park Jae-chul (Presiding Justice)