개발부담금부과처분취소
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
1. The purpose of the former Restitution of Development Gains Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Restitution of Development Gains Act”) is to prevent speculation in land, promote the efficient utilization of land, and contribute to the sound development of the national economy by recovering development gains accruing from land and distributing them appropriately.
(1) Article 1. “Development gains” means increases in land prices belonging to a person who executes a development project or landowner in excess of increases in normal land prices due to the implementation of a development project, change of a land-use plan, or other social and economic factors (Article 2 subparagraph 1). “Development projects” subject to development charges refer to projects under Article 5, such as housing site development projects or industrial complex development projects conducted with approval, permission, license, etc. from the State
(Article 2 Subparag. 2). Article 5(1)1 and (3) of the former Development Gains Refund Act provide that “housing site development projects (including housing complex development projects)” as one of the development projects and matters necessary for the scope, scale, etc. of the development projects shall be prescribed by Presidential Decree.
Accordingly, Article 4(1) [Attachment 1] [Attachment 1] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter “former Enforcement Decree of the Development Gains Restitution Act”) provides for “site construction project or housing construction project” based on the former Housing Act (amended by Act No. 11365, Feb. 22, 2012; hereinafter “former Housing Act”) as a development project included in the scope of the housing site development project.
According to subparagraph 6 of Article 2 and Article 16 (1) of the former Housing Act, a person who intends to implement a housing construction project of at least the number of housing units prescribed by Presidential Decree or a housing site development project of at least the area