[토지초과이득세부과처분취소][공1994.5.15.(968),1367]
(a) the meaning of “where the use is prohibited or restricted under the provisions of the laws and regulations of the land excess profit tax” under the provisions of the laws and regulations;
(b) Whether the forests and fields for which various authorization and permission is reserved by administrative agencies for reasons of non-designation of use are prohibited or restricted under the provisions of Acts and subordinate statutes;
A. Article 8(3) of the Land Excess Profit Tax Act and Article 23 subparag. 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13655 of May 30, 192) include cases where the use of land is prohibited or restricted due to the provision of the Act itself, even though the use of land is not directly prohibited or restricted by the provision of the Act or its own, since the administrative agency does not combine the permission, such as building permission, etc. as part of the administrative action, and thus, the use of land is also prohibited or restricted.
B. If the forest land is scheduled to be designated and publicly announced as a local industrial complex, and the use of the forest is practically prohibited or restricted by the administrative authority on the ground that the specific use area is not designated, it shall be deemed as a case where the use is prohibited or restricted by the law under Article 23 subparagraph 1 of the Enforcement Decree of the same Act, regardless of whether the restriction can be revoked on the grounds of illegality in individual administrative litigation, and the application shall not be excluded solely for the reason that the landowner did not state the purpose of use in the forest land whose administrative district was changed to an urban area but its use is in the undesignated state.
(a)(b)Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1(b) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13655, May 30, 192); Article 8(1)7(d) of the Land Excess Profit Tax Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)
Plaintiff (Attorney Kim Dong-ho, Counsel for the plaintiff-appellant)
Head of North Busan District Tax Office
Busan High Court Decision 92Gu3519 delivered on July 7, 1993
The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court.
We examine the grounds of appeal by the Plaintiff’s attorney.
1. Article 8(3) of the Land Excess Profit Tax Act and Article 23 subparag. 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13198, Dec. 31, 1990; hereinafter the same shall apply) include cases where the use of land is prohibited or restricted because an administrative agency does not directly prohibit or restrict the use of land by itself as part of the administrative action, even though the provision of the law itself does not directly prohibit or restrict the use of land (see, e.g., Supreme Court Decisions 93Nu1893, Jan. 11, 1994; 93Nu295, Jan. 25, 1994).
2. According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the use of the forest of this case was prohibited or restricted until the designated due to the non-designation of the specific use area, on the ground that the Busan Gangseo-gu branch office Dong, including the forest of this case, will be designated and announced as a local industrial complex for the Busan Science Industry under the Urban Planning Act (the Industrial Sites and Development Act seems to be erroneous) (the designation and notification are around December 21, 191), and that the permission was reserved due to the non-designation of the specific use area, but it is recognized that the plaintiff did not disclose the purpose of acquiring the forest of this case, and that the non-designation of the specific use area is not prohibited or restricted since the non-designation of the forest of this case does not constitute the grounds for the restriction on the construction permit, and thus
3. However, since the forest land of this case is scheduled to be designated and announced as a local industrial complex as determined by the court below, various authorizations and permissions are reserved by the administrative authorities on the ground that the specific use area is not designated (According to the records, even though the forest of this case was included in Busan Special Metropolitan City and Metropolitan City, which is an urban area under the Act on the Utilization and Management of National Territory due to the change of administrative district, the forest of this case is planned to designate its use as a local industrial complex and takes procedures such as designation of the local industrial complex and approval of execution plan, etc. under the Industrial Sites and Development Act, regardless of whether the restriction measures can be cancelled for the reason of illegality in individual administrative litigation, it shall be deemed as a case where the use is prohibited or restricted under the provisions of Acts and subordinate statutes under Article 23 subparagraph 1 of the Decree, regardless of whether the restriction measures can be cancelled for the reason of illegality in individual administrative litigation cases. In the forest of this case, although the administrative district was changed to an urban area, its use itself does not exclude the application of the forest of this case.
Therefore, the above judgment of the court below is erroneous in the misapprehension of legal principles as to prohibition of and restriction on the use under the law, one of the requirements that do not regard the land as idle land, and this affected the conclusion of the judgment. Therefore, the ground for appeal pointing this out has merit.
4. Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)