[2] In a case where a religious corporation owned prior to the enforcement of the Act on the Ownership of Housing Sites and used as a religious facility failed to undergo a pre-use inspection, whether the site of the building is the land subject to the excessive ownership charge for the housing site (negative)

[3] The term "this Decree shall apply to charges first imposed after the enforcement of this Decree" under the Addenda to the Enforcement Decree of the Act on the Ownership of Housing Site.

[2] Even if a religious corporation possessed prior to the enforcement of the Act on the Ownership of Housing Sites and used as a church building fails to undergo a pre-use inspection, the site of the building is not already fulfilled the duty to use and develop the housing site under Article 18 of the same Act or is a housing site acquired pursuant to Article 10 of the same Act, which is a housing site to be used and developed according to the permitted contents, and thus is excluded from the subject

[3] Paragraph (2) of the Addenda of the Enforcement Decree of the Act on the Ownership of Housing Site (amended by Presidential Decree No. 14363, Aug. 19, 1994) provides that "this Decree shall apply from the charge first imposed after the enforcement of this Decree". This provision applies to the first charge imposed after the enforcement date of this Decree based on the date of the disposition of imposition (the date of August 19, 1994), and it does not apply to the first revised provision of the Enforcement Decree of the same Act from the charge first imposed after the enforcement date.

On the first ground for appeal

In full view of the purport of the relevant provisions of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act") and the Enforcement Decree of the same Act (amended by Presidential Decree No. 14363, Aug. 19, 1994; hereinafter referred to as the "Enforcement Decree"), if a juristic person operating a religion or public service owns a housing site at the time of the enforcement of the Act and directly uses it for a juristic person's own business, it shall be deemed to have obtained permission from the head of the competent Si/Gun, and it shall be deemed that it has already performed the duty of use and development of the housing site under Article 18 of the Act or that it constitutes a housing site acquired under Article 10 of the Act and used and developed in accordance with the permitted contents, and thus, it shall be excluded from the subject of imposition of charges for excess ownership of the housing site (hereinafter referred to as the "charges"). (See Supreme Court Decisions 93Nu22302, Aug. 26, 1994; 94Nu29236, Jan. 24, 37, 195).

According to the facts acknowledged by the court below, although non-party training constructed 1 building and 33 square meters on the ground of the land of this case which is subject to the charges with a building permit around July 20, 1969, it used the above building as a sports facility without undergoing a pre-use inspection from the competent authorities. The plaintiff acquired the above building along with the land of this case before the law enters into force, used it as the plaintiff's church building before the beginning of 1993, removed the above building, and submitted a use plan for the land of this case from June 3 of the same year to newly construct a new church building on the land of this case, and completed the new construction of the new church building on the ground of this case on April 16, 1994, and used it as a religious facility (see Article 95 of the Act, 96 of the Act, even if the plaintiff who had been using the above building as a church building was not subject to a pre-use inspection under the above provisions of Article 195 of the Act.

However, according to the records, the plaintiff asserted that the plaintiff has used the above building as the plaintiff's church and company house until the beginning of 1993. As such, since the land of this case is the land owned by the plaintiff as a religious corporation and used directly for the corporation's unique duties at the time of the enforcement of the law, there is no room to regard that the plaintiff already performed the duty of use and development of the housing site under Article 18 of the Act or acquired the housing site under Article 10 of the Act, which constitutes the housing site used and developed in accordance with the permitted contents, and thus is excluded from the subject of the charge. Furthermore, even if it is not so, the court below should have clarified the litigation relationship by clarifying the intention of the plaintiff at least by means of a request for name, etc.

Nevertheless, the court below's dismissal of the plaintiff's claim without doing so is hard to avoid criticism that there is an error of law in the incomplete hearing due to the omission of judgment or the non-exercise of right to explanation, and it is clear that such illegality has influenced the judgment. Therefore, the ground of appeal pointing this out has merit.

On the second ground for appeal

Article 2 (2) of the Enforcement Decree provides that "any building or structure falling under any of the following subparagraphs, notwithstanding the proviso to paragraph (1), shall be deemed a building under paragraph (1)." Article 2 (2) of the Enforcement Decree provides that "any building or structure registered in the property tax ledger under Article 196 of the Local Tax Act before March 2, 190," and Paragraph (1) of the Addenda of the Enforcement Decree provides that "this Decree shall enter into force on the date of its promulgation," and Paragraph (2) of the same Article provides that "this Decree shall apply from the charge first imposed after this Decree enters into force," and it is evident that Article 2 (2) of the Enforcement Decree shall apply to the first charge imposed after the enforcement date ( August 19, 194) pursuant to paragraph (2) of the Addenda of the Enforcement Decree.

Nevertheless, the court below held that the disposition of this case imposed by the defendant as of February 28, 1995 is not subject to the provision of Article 2 (2) of the Enforcement Decree on the ground that the disposition of this case was imposed on June 1, 1992 or June 1, 1994, which was based on the imposition standard date, and therefore, it is erroneous in the misapprehension of the legal principle as to the interpretation and application of the provision of Article 2 (2) of the Addenda.

However, according to the records, the above building used by the plaintiff as a church building is not registered in the property tax ledger (or non-taxation ledger), so the above building does not fall under the building stipulated in Article 2 (2) 1 of the Enforcement Decree, and the disposition of this case is not against the good faith principle merely because the defendant did not prepare and keep the property tax ledger (or non-taxation ledger) on the above building. Therefore, the above error of the court below does not affect the conclusion of the judgment, and the ground of appeal on this point is without merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-ho (Presiding Justice)