[2] The legal nature of the provision on the time when the infrastructure charges are imposed under Article 11(1) of the former Infrastructure Charges Act (=the provision on an official award to an administrative agency)

1. Regarding ground of appeal No. 1

The court below determined, as stated in its reasoning, that the Defendant’s act of imposing infrastructure charges on the Plaintiff under the former Infrastructure Charges Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “the Act”) was lawful based on the provisions of Article 11 of the Act on the Grounds for Imposition (Article 11(2) of the Act; Article 9(1) of the Enforcement Decree of the Act), the criteria for imposition of buildings subject to imposition, estimated charges, imposition of charges, and the procedures for requesting an examination thereof prior to the disposition of this case, on the grounds that it is evident that the Defendant’s act of entering Article 26 (Administrative Fines) in the item column of the disposition of this case is a simple clerical error and that there is no possibility that the Plaintiff might mislead the purport of the disposition of this case or interfere with the protection of rights due to such clerical error.

In light of the records, we affirm the judgment of the court below and there is no error of law by misunderstanding the legal principles on the basis of administrative disposition and the principle of no taxation without law.

2. Regarding ground of appeal No. 2

Other taxes or development charges, such as urban planning tax, acquisition tax, registration tax, and property tax, are different from infrastructure charges, and the purpose or nature thereof is different from those of infrastructure charges, and the Act prevents duplicate imposition for the same purpose, such as deducting similar charges related to infrastructure from infrastructure charges, in cases where payment is made pursuant to the provisions of other Acts. Therefore, it is difficult to deem that the imposition of infrastructure charges is excessively limited to the property rights of construction actors

Meanwhile, the Act was repealed by Act No. 9051, Mar. 28, 2008 (hereinafter “repealed Act”). Article 2 of the Addenda to the repealed Act provides that infrastructure charges imposed, or to be imposed or refunded under the previous Act shall be governed by the previous Act as a general transitional measure. Articles 67 through 70 of the National Land Planning and Utilization Act (amended by Act No. 9043, Mar. 28, 2008) stipulate the infrastructure cost-bearing and infrastructure cost system as well as infrastructure cost-building cost system. In light of such legislative process, the legislators appear to have reduced the area of infrastructure installation costs caused by construction in accordance with the legislative policy decision reflecting changes in real estate market and construction competition. Moreover, the legislators do not seem to have abolished the Act in light of the purpose of removing the unconstitutionality of the previous provision or reflective consideration, which reflects social change charges, such as changes in real estate market and construction competition, and the legislative intent of Article 27 through the repeal of the amendment of the Act’s legal stability and equality, etc.

The court below held that the disposition of this case was legitimate, even if the notice of the disposition of this case was delivered to the plaintiff after the repeal of the law, since the obligation to pay the plaintiff's infrastructure charges was already established pursuant to Article 10 of the Act before the repeal pursuant to Article 2 of the Addenda. In light of the above legal principles and relevant provisions, the judgment of the court below is justifiable. The ground of appeal that the disposition of this case, which was made based on the provision of the law and the repealed law, was unconstitutional against the principle of prohibition of double taxation and guarantee of people's property rights, is not accepted.

3. As to the third ground for appeal

Article 11(1) of the Act provides that “The Minister of Construction and Transportation shall determine and impose infrastructure charges within two months from the time of imposition,” and Article 20(1) of the Act provides that “If the right to collect infrastructure charges and the right to receive a refund of overpaid or erroneously paid infrastructure charges are not exercised for five years from the time they can be exercised, the extinctive prescription shall expire.” In full view of the purpose of the infrastructure charges system, the form and content of the provisions, and relevant provisions, the provisions concerning the time of imposition of the infrastructure charges under Article 11(1) of the Act concerning the time of imposition of the infrastructure charges shall be deemed not to be the provision concerning the period of exclusion from the exercise of the imposition rights, but to be the provision concerning an official decoration for administrative agencies (see Supreme Court Decision 2009Du5305, Dec.

In the same purport, the judgment of the court below that the Defendant rendered the instant disposition after the lapse of two months from the construction permit date of the instant building, which is the base point for imposing the infrastructure charges, is justifiable, and there is no violation of law by misapprehending the relevant legal principles as alleged in the grounds of appeal

4. As to the ground of appeal No. 4 (see, e.g., Constitutional Court Order 2007HunBa131, Feb. 25, 2010)

A. The purpose of the infrastructure charges system under the law is to realize the beneficiary burden and the principle of the burden of the person responsible for the construction of infrastructure by ensuring that the construction executor bears the cost of the construction of infrastructure caused by the construction act, to improve the level of urban and residential environment by securing financial resources for the construction of infrastructure, and to achieve the stability of land markets by preventing speculative and difficult development conducted in the vicinity of the public housing development area without being equipped with infrastructure.

According to Articles 7(1) and 6(2) of the Act, a person obliged to pay infrastructure charges shall be a person who constructs buildings exceeding 200 square meters in total floor area. Since such a person creates a lot of infrastructure facilities by having a collective homogeneity distinct from other groups, he/she shall be held collectively responsible for the improvement of the level of urban and residential environment, which is objectively closely related to the social and economic task of improving the level of urban and residential environment. Meanwhile, these persons obtain collective benefit from the infrastructure causing the installation. As such, imposing the cost of infrastructure installation is to realize the principle of bearing the burden of the person and the burden of the beneficiary, and reduces the burden on the installation cost of the general public who did not cause the installation, thereby enhancing the fairness in bearing the cost of infrastructure, and stabilizing the land market by preventing the difficult development performed without the installation of infrastructure. Accordingly, the Act selects the persons who perform the construction of buildings exceeding 200 square meters in total floor area as a group subject to imposition of the charges, and thus, it does not violate the aforementioned social and economic principle of equality.

B. Meanwhile, since the total amount of infrastructure installed in each region is different, even in the same area, construction activities of the same area may vary to the extent that causes the installation of infrastructure depending on the region. However, it is not yet complete when the basic data for estimating the demand of infrastructure for each local government and establishing a plan for installation of infrastructure is not completed, and it is expected that a large number of time and expenses will be incurred in the establishment of such materials and plan, while it is highly necessary to realize social and economic tasks as seen earlier by imposing infrastructure charges. Therefore, it is difficult to readily conclude that the legislators deviates from legislative discretion on the ground that the local characteristics are relatively less than relatively less than that of the infrastructure charges system that accurately reflects the characteristics of the region, instead of selecting the infrastructure charges system that can be implemented promptly and regularly, on the ground that

Furthermore, the Act provides various complementary measures to reflect the degree of the inducement of infrastructure in the imposition of infrastructure charges. In other words, the Act does not impose all construction acts uniformly, but reflects the land price difference in the application of the average officially announced value of each Si/Gun/Gu, in consideration of the size of the building, the land price level of the relevant area, local characteristics, etc., and introduces the trigger coefficient reflecting the degree of the inducement of infrastructure by use of the building as well as the differential application of the land conversion coefficient according to the specific use area, and if the existing building is removed and newly constructed within the same use area, the act of construction can be reflected in the degree of causing the installation of infrastructure, such as imposing the infrastructure charges only for construction activities exceeding the total floor area of the existing building.

Therefore, it cannot be said that the law excessively infringes on property rights in violation of the excessive prohibition doctrine just because there may be a somewhat different difference between the infrastructure charges imposed by the law and the construction activity in question.

C. Article 9(2) of the Act provides that the Minister of Construction and Transportation shall notify the standard infrastructure facility cost every year in consideration of the rate of increase in the production of infrastructure facilities in the year concerned, as prescribed by Presidential Decree. Article 9(3) of the Act provides that "the land conversion coefficient prescribed by Presidential Decree within 0.4 in consideration of the level of installation of infrastructure by region" and "the average by Si/Gun/Gu prescribed by Presidential Decree of the officially assessed individual land price publicly notified each year under the Public Notice of Values and Appraisal of Real Estate Act, and the inducement coefficient of infrastructure by building prescribed by Presidential Decree ( subparagraph 2)" shall be calculated. The subject of regulation under each of the above provisions is recognized to be necessary to delegate specific contents to subordinate laws due to their expertise or diversity, etc., and if it is judged systematically and systematically by considering the purpose of the Act and the contents of the above provisions, it is possible to predict the contents to be set forth in sub-laws. Accordingly, each of the above provisions does not violate

D. In the same purport, the lower court is just to have rejected all the Plaintiff’s assertion of unconstitutionality as stated in its reasoning, and there is no error of law by misapprehending the relevant legal doctrine as alleged in

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)