B. Appropriateness of a disposition imposing development charges based on the statute enforced only during the development project execution

B. In view of the belief that the development charges will not be imposed and the trust of the operator who commenced the project is protected, the development charges may not be imposed on the basis of the legislation that is enforced only when the development projects are not yet established or implemented at the time of commencement of the development project, due to the procedures such as revision of the progress of the

Litigation costs shall be borne by the defendant.

A. The following facts can be acknowledged according to Gap evidence 2, 3, Gap evidence 4, and 5's evidence 1, 6-1, 2, Eul evidence 1-2, Eul evidence 2-1 through 3, Eul evidence 3-1 to 9, and Eul evidence 3-1 to 9, and the testimony of the witnesses' uniforms.

B. On March 191, 191, the Plaintiff leased approximately 4,000 square meters from 7 persons, such as the Lee Jong-dong-si 30-1 forest land of 22,586 square meters (after the completion of the instant construction work, changing to 17-10 miscellaneous land) to the golf practice range (the so-called Indian golf course, which is installed with a steel pole and its water to enable golf shooting practice in the practice spam), among which, in order to build a golf practice range (the so-called Indian golf course, which is installed with a steel pole and its water to be operated for golf practice in the practice spam), the lease period of 7 persons, such as the Lee Gyeong-dong-dong and Lee Ho-dong-dong, the owner of which was three years, and the rent of 5

Therefore, on May 27, 1991, the Plaintiff obtained a business authorization including a building permit and a change in the form and quality as a sports facility (a golf practice range) from the Chungcheong City with respect to approximately 9,840 square meters among forest land of approximately 4,000 square meters, and completed the construction work on June 8 of that year.

Accordingly, on September 22, 1992, the defendant issued a disposition imposing development charges and additional dues (hereinafter referred to as "disposition in this case") on the ground that development gains (the development gains in this case corresponding to the amount double the development charges; hereinafter referred to as "development gains in this case") equivalent to the above project operator 30,232,480 won belong to the plaintiff (specific, the defendant issued a notice of expected imposition of development charges in 154,314,250 won on January 15, 1992, but notified the correction of the amount as KRW 159,818,686 won on March 11, 1992, and notified the correction again of the development charges and additional dues on September 22, 1999).

2. The illegality of the instant disposition

(a) Summary;

First, the development gains of this case cannot be deemed to have accrued to the plaintiff due to the above development projects, second, since the plaintiff's above project does not constitute the subject of development charges under the provisions of the statutes applicable thereto, the disposition of this case is unlawful even if it is any appearance.

B. As to the reversion of development gains

(1) Article 1 of the Restitution of Development Gains Act (amended by Act No. 4434, Dec. 14, 191; hereinafter “the Act”) which was in force at the time of the implementation of the instant project provides that “The purpose of this Act is to prevent speculation in the land, promote the efficient utilization of the land, and contribute to the sound development of the national economy by recovering the development gains accruing from the land and distributing them appropriately.”

Article 2 (1) of the Act provides that "development gains" means increases in land prices belonging to a person who executes the development project (hereinafter referred to as "project operator") in excess of increases in normal land prices by implementing the development project, and increases in land prices belonging to the landowner in excess of increases in normal land prices due to the implementation of the public project, changes in the land use plan, and other social and economic factors."

Article 3 (1) of the Act provides that "The State shall collect development gains accruing to a project operator as development charges, as prescribed by this Act."

According to the above legal provisions, in order to impose development charges on the Plaintiff in relation to the construction project of the instant golf driving range, the said construction project must be implemented so that there is an increase in the land value exceeding the development gains, namely, increases in normal land prices, and this is clear that this should be attributed to the Plaintiff.

(2) Therefore, according to the above evidence, it is recognized that there was an increase in the land value exceeding the normal increase in land prices as to the above land, but it cannot be recognized that it belongs to the Plaintiff as detailed below ( there is no ground to deem that the increase in land value naturally belongs to the project implementer under the above law).

In general, even if there is an increase in the land price in excess of the increases in normal land prices in cases of the lease of another person’s land, barring special circumstances, the increase in the above land price shall not be deemed to belong to the project operator, barring special circumstances. This is because, on the other hand, it is reasonable to deem that the benefits arising from the increase in the land price shall belong to the owner, unless there are special circumstances. However, unless it is recognized that the lessee has enjoyed the benefits arising from the increase in the land price during the lease period, the lessee should return the land to the landowner after the lease period. Therefore, it is difficult to regard the development gains as belonging to the lessee (and even if some of the development gains may belong to the lessee, it may be attributed to the whole of the development gains in this case as the premise of the disposition in this case, but it is apparent that the whole development gains in this case belongs to the lessee, who is the lessee. In addition, even if a part of the development gains in this case

(3) Ultimately, in the instant case where the Plaintiff leased the instant land for a period of three years from the owner, and carried on the said construction project, it cannot be deemed that the instant development gains accrue to the Plaintiff, and thus, the instant disposition that is based on the premise that the instant development gains accrue to the Plaintiff is unlawful.

C. Whether the development charges are subject to imposition

(1) Relevant statutes

Article 5 (1) of the Act, which had been enforced at the time of the approval of the project in this case, lists housing site development projects (subparagraph 1), industrial complex development projects (subparagraph 2), 3, golf course construction projects (subparagraph 9), etc. and similar projects as prescribed by the Presidential Decree (subparagraph 11).

In addition, Article 4 of the Enforcement Decree (amended by Presidential Decree No. 13465 of Sep. 13, 191) and subparagraph 11 of attached Table 1 are defined as "a change of form and quality of land to implement projects corresponding to those under subparagraphs 1 through 9 of the above Act".

(2) However, although the instant project is included in the project of constructing a golf range, it cannot be seen as falling under subparagraph 11 of attached Table 1. This is because, first, among the projects set forth in subparagraphs 1 through 9 of the above attached Table, it is clear that the instant project of constructing a golf range can not be deemed as a project corresponding to the instant project, although Article 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act and Article 3(1)1 and subparagraph 1(a) and (l) of attached Table 3(1) of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act, and Article 3(1)1(a) and (l) of the Enforcement Rule of the said Act separate from the general golf course (not less than 18 holes), and there are provisions concerning a golf range (a).

Second, as seen below, it is reasonable to view that the Enforcement Rule under the above Act and the Enforcement Rule under the Enforcement Decree of the Act include a business that constructs a golf range in subparagraph 11 only after being amended on November 29, 191, and that it is included in the business subject to development charges before that amendment, and that it is included in the business (specificly, Article 5 (1) of the Act and Article 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13660 of Jun. 11, 192; hereinafter the same shall apply) and subparagraph 11 of the attached Table 1 are defined as "business that is similar to those under subparagraphs 1 through 10 of the above Act with permission for changing the form and quality of the business to install facilities prescribed by the Ordinance of the Ministry of Construction and Transportation, and that the Enforcement Rule of the Construction and Transportation, which is the one under the Enforcement Decree of the above Act, is not included in the business subject to subparagraph 1 or 2 of the attached Table 19.

(3) The above conclusion is based on the position that the statute, which was implemented only when the project in this case was not yet enacted or implemented at the time of commencement, cannot serve as the basis for imposing the development charges in this case.

This position is based on the consideration that it is believed that the development charges will not be imposed and the trust of the operator who commenced the project is protected.

However, this is somewhat inconsistent with the principle of tax imposition (such as development charges have the nature similar to the tax, so they shall be invoked) which is subject to the law at the time of establishment of taxation requirements, but as seen below in detail, it is reasonable to interpret them as above in full view of the above Enforcement Rule and the transitional provisions of the Enforcement Decree.

In other words, the transitional provision of the above Enforcement Rule (this is the supplementary provision when amended by the Ordinance of the Ministry of Construction and Transportation No. 515, Oct. 26, 1992; however, the purport of the amendment is to protect the trust of the operator as seen earlier and it is reasonable to be invoked at the time of the previous amendment of the Enforcement Rule) provides that "the amended provision of attached Table 2 shall apply to the business that begins with permission, such as change of the form and quality after the enforcement date of these Rules." Paragraph 2 of the supplementary provision of the above Enforcement Decree (the supplementary provision at the time when the above Enforcement Decree was amended by the Presidential Decree No. 13465, Sep. 13, 1991) which was enforced before the completion date of the business in this case provides that "the amended provision of attached Table 1 shall apply to the business that starts with the approval of the business after the enforcement date of this Decree, and the supplementary provision of the above Enforcement Decree at the time of the amendment by Presidential Decree No. 13718, Aug. 25, 1992.

(4) Ultimately, the instant project that started before the establishment of Article 3-2 of the above Enforcement Rule cannot be subject to development charges, and thus, the instant disposition is unlawful.

3. Conclusion

If so, the plaintiff's claim seeking the revocation of the disposition of this case, which appears to be any mother or illegal, is justified, and the lawsuit cost is assessed against the losing defendant, and it is so decided as per Disposition.

Judges Lee Jae-soo (Presiding Judge)