[택지초과소유부담금부과처분취소][공1999.1.1.(73),58]
In a case where there are buildings for complex use of factories and dormitories on a group of land, whether the area of land annexed to buildings for factories calculated in accordance with subparagraph 1 [Attachment Table 1] of Article 3 of the Enforcement Decree of the Act on the Ownership of Housing Sites should be calculated in a case where the total area of land annexed to buildings for factories exceeds the total area of the land (affirmative)
A dormitory is a building constructed to be used for residential purposes and constitutes a house stipulated in subparagraph 2 of Article 2 of the Act on the Ownership of Housing Sites. On the other hand, in a case where a residential part and a complex use building consisting of a non-residential part on the land in question, the area of a housing site on which a house is constructed shall be calculated in accordance with Article 9 of the same Act and Article 7 [Attachment 3] of the Enforcement Decree of the same Act, in accordance with the ratio of the total floor area used for residential purposes to the total floor area of the entire building, and Article 3 subparagraph 1 [Attachment 1] of the Enforcement Decree of the same Act concerning the scope of land annexed to a non-residential building does not apply. In this case, once the land area falls short of the scope of land annexed to the above [Attachment 1] on the basis of the non-residential part
Article 2 subparag. 2 and Article 9 of the Act on the Ownership of Housing Sites, Article 3 subparag. 1 [Attachment 1] and Article 7 [Attachment 3] of the Enforcement Decree of the Act on the Ownership of Housing Sites
Supreme Court Decision 94Nu11811 delivered on March 28, 1995, Supreme Court Decision 97Nu9390 delivered on December 26, 1997 (Gong1998Sang, 526)
Hean Trade Co., Ltd. (Attorney Lee Im-soo, Counsel for defendant-appellee)
The head of Dongdaemun-gu
Seoul High Court Decision 96Gu33701 delivered on May 1, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
A dormitory is a building constructed to be used for residence and constitutes a house as stipulated in subparagraph 2 of Article 2 of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act"). On the other hand, in a case where a residential part and a complex use building consisting of a non-residential part on the land, the area of a housing site on which a house is constructed shall be calculated in accordance with Article 9 of the Act and Article 7 [Attachment Table 3] of the Enforcement Decree of the Act. The provisions of subparagraph 1 [Attachment Table 1] of Article 3 of the Enforcement Decree of the Act on the Scope of Land Attached to a Non-Housing shall not apply to the calculation in accordance with the ratio of the total floor area used for residence among the total floor area of the entire building pursuant to each subparagraph of Article 9 of the Act and Article 7 [Attachment Table 3] of the Enforcement Decree of the Act on the Scope of Land Attached to a Non-Housing Building. In this case, it shall not be treated differently as falling short of the scope of the annexed land calculated by applying the provisions of the above [Attachment Table 1] (see, 94Nu111, Mar. 28, 39, 97.
In the same purport, the court below is justified in holding that the area of a housing site should be calculated according to the ratio of the area of a dormitory among the buildings in this case to the area of a dormitory among the buildings in this case as a result of the construction of a dormitory and a factory, etc., and there is no error in the misapprehension of legal principles as to the method of calculating the area of a housing site or in violation of the principle of equality under the Constitution as alleged in the grounds of appeal.
Therefore, the appeal is dismissed and all 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 Lee Yong-hun (Presiding Justice)