[2] Where a housing site development project, which is subject to development charges, has not been completed by the enforcement date of the amended Act, among housing site development projects, which are already commenced with the approval of the housing construction project plan before August 12, 1993, the enforcement date of the Restitution of Development Gains Act as amended by Act No. 4563 of Jun. 11, 1993 and the Enforcement Decree of the same Act as amended by Presidential Decree No. 13956 of Aug. 12, 1993, which is the project subject to development charges, has not been completed by the enforcement date of the above amended Act (=the amended Act and subordinate statutes) and a housing site development project is not completed at the time of the completion of the imposition of development charges on

[2] Article 2 (2) of the Addenda of the above Act (amended by Act No. 4563, Jun. 11, 1993; Presidential Decree No. 1396, Aug. 12, 1993; Presidential Decree No. 13956, Aug. 12, 1993; Enforcement Decree of the above Act (amended by Presidential Decree No. 1395, Jun. 11, 1993) provides that Article 9 (3) of the above Act (amended by the Act No. 1993) shall apply to a housing site development project, which is subject to development charges, which is a housing site development project, already commenced with approval before the enforcement date of the amended Act, shall be the date of completion of the above construction project, and Article 8 (2) of the Enforcement Decree of the above Act (amended by Presidential Decree No. 1993; Presidential Decree No. 2) shall apply to a housing site development project, which has not yet been completed after the enforcement date of the above Act.

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the project of this case is subject to development charges pursuant to Article 5 (1) of the former Act and Article 4 [Attachment Table 1] of the former Enforcement Decree, and only the portion of the housing site development project shall be subject to development charges pursuant to Article 9 (3) (proviso 2 of the former Enforcement Decree) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) as of August 12, 1993, which was the date of entry into force of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) and the housing construction project of this case, which was already commenced with the approval of the housing construction plan before Aug. 12, 1993, since the plaintiff continued to implement the housing site development project after the commencement of the construction project, there is no evidence as to the completion date of the housing site development project.

2. Article 2 (1) of the Addenda of the New Act and Article 13956 of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956, Aug. 12, 1993; hereinafter referred to as the "former Enforcement Decree") provides that Article 5 of the New Act concerning the scope of development projects subject to development charges and Article 4 of the new Enforcement Decree shall apply to the amended provisions of Article 5 of the New Act and Article 4 of the New Enforcement Decree after the enforcement date of the New Act and the New Enforcement Decree (Article 1 of the Addenda of the New Act and Article 1 of the New Enforcement Decree and Paragraph 1 of the Addenda of the New Enforcement Decree). Thus, Article 5 (1) 1 of the previous Act and Article 4 of the former Enforcement Decree [Attachment 1] of the former Enforcement Decree shall apply to the housing construction project subject to the imposition of the development charges, which is the housing construction project, prior to the enforcement date of the new Act and the new Enforcement Decree.

Meanwhile, Article 2 (2) of the Addenda to the new Act provides that the amended provisions of Article 9 (3) of the new Act concerning the time of completion of the imposition of development charges shall apply from the date of completion of the new Act, and the Addenda does not provide for the period of application of the amended provisions of Article 8 of the new Enforcement Decree concerning the time of completion of the imposition. According to the records, since the new Act does not begin construction of the building due to the implementation of the new Act at the time of its enforcement, the part of the housing site development project, which is subject to development charges, among the projects of this case, has not been completed yet. Thus, the provisions of Article 9 (3) of the new Act and Articles 7 and 8 of the new Enforcement Decree shall apply to the time of completion of the imposition of the above housing site development project. As seen above, the only part of the housing site development project in this case falls under the development project subject to development charges, and the land only under Article 8 (1) 1 of the new Enforcement Decree shall be the date of report on the completion of the new housing site development project.

However, according to the records, the plaintiff submitted a report on commencement of a building to the defendant on August 31, 1993 (see, e.g., records 126 pages). However, even after the above report on commencement of a building, it was considerably cut and filled up with the Housing Construction Corporation (see, e.g., records 202 pages, 279 through 289). The plaintiff voluntarily filed a report on the calculation of development costs for a housing site preparation project conducted from July 1993 to April 1995, and filed a report on the calculation of development costs to the defendant, which would have been 213,713,850 won among them, while calculating the development charges (see, e.g., Supreme Court Decision 200Da193819, Sept. 2, 209). Thus, the court below did not err by misapprehending the legal principles as to the new housing site development charges at the time of completion of a new housing site preparation project (see, e., Supreme Court Decision 2019Da149192).

4. 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 Yong-hun (Presiding Justice)