Seoul OOOOOOdong OO - OOO building ○○○○

Representative ○○○○

Law Firm Han-gu et al.

Attorney Hak-young, Counsel for the defendant-appellant

Hanam Market

Law Firm Shinnok, Counsel for the defendant-appellant

Attorney Park Han-jin, Counsel for the plaintiff-appellant

2. The costs of lawsuit shall be borne by the Plaintiff.

such action.

A. The Plaintiff is a housing association that obtained authorization for the establishment of ○○○ apartment on February 18, 2003 in order to build ○○○○○ apartment on the 23,766m of land outside the ○○○○○○○○○○○○○○○○ apartment on August 25, 2005. On June 30, 2003, the Plaintiff obtained approval for the housing construction project plan by deeming the total number of households from the Defendant as 696 households. On August 25, 2005, the Plaintiff changed the name of the association to ○○○○○○○○○○○○○○○○ Housing Association from the '○○○○○○○○○○○○ Housing Association’ to the '○○○○○○○○

B. When the Defendant approves the housing construction project plan with the Plaintiff and the ○○○○3 Housing Association, the ○○○○ Housing Association, and the OOI Regional Housing Association (hereinafter referred to as “○○ Housing Association, etc.”). The name was changed from the Gyeonggi-do Office of Education (hereinafter referred to as “Seoul-do Office of Education on March 1, 2006”) to “Seoul-do Office of Education” (hereinafter referred to as “Seoul-do Office of Education”) (hereinafter referred to as “Hanam-si Office of Education”) (hereinafter referred to as “the head of the Do Office of Education”). Accordingly, on October 28, 2004, the Plaintiff agreed to secure the school site of the ○○○○○○○ Housing Association, and set the difference between the appraised value of the school site and the amount of the deposit claim of the Plaintiff’s 400 million won in order to faithfully implement the plan.

C. On November 16, 2004, in order to secure school sites, the Plaintiff and ○○ Housing Association, etc. purchased 11,896 square meters of the site for elementary school located in ○○-dong, Chungcheongnam-si and 12,516 square meters of the site for ○○ Middle School, and sold it to the Gyeonggi-do Office of Education after the site creation work, and agreed that the Plaintiff and ○○ Housing Association, etc. bear 35% of 37 and 62.25% of the project cost.

D. On June 19, 2006, the head of the District Education Office requested the Plaintiff and the ○○ Housing Association, etc. to change the implementation plan on securing school site into the creation and supply (free of charge) an elementary school site to be newly constructed in the ○○ Dong in the Hanam-si. Accordingly, the Plaintiff and the ○○ Housing Association, etc. and the head of the Hanam-si Office of Education agreed on February 6, 2007, following several consultations, to implement procedures necessary for the development restriction zone management plan and determination of urban planning facilities for the elementary school to be newly constructed in the ○dong in the ○dong-dong-si and the ○○ Elementary School in lieu of the site creation work for the originally planned elementary school and the ○○ Middle School, but the Plaintiff and ○○ Housing Association, etc. agreed to perform the said services and construction within the scope of the amount of pledge established as a security for the Hanam-si education head.

E. On November 6, 2006, the plaintiff announced the public announcement of 145 households among the total 696 households, and on the part of 123 households which entered into a supply contract for the above general sale.

On April 12, 2007, Article 2 Subparag. 2 and the main sentence of Article 5(1) of the Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 8679 of Dec. 14, 2007) imposed charges of KRW 168,248,00 on school site charges of KRW 168,248,00 (hereinafter referred to as the "disposition of this case").

F. On September 25, 2008, the Constitutional Court held that the case of donation through the extension of existing school buildings and the extension of existing school buildings to the development project implementers who made the donation of school sites violates the right to equality of the contributors of the donation through the extension of school buildings, and that Article 5 (4) (hereinafter referred to as "Article 5 (4) (hereinafter referred to as "the former Act") of the Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 7397 of Mar. 24, 2005 and amended by Act No. 8679 of Dec. 14, 2007") is subject to the unconstitutionality of Article 5 (4) of the former Act on Special Cases Concerning the Construction, etc. of School Sites, which provides for the necessary exemption of charges for the development project implementers who made the donation of simple unconstitutionality, the amendment of Article 4 of the Act on Special Cases Concerning the Provision of Additional Charges to the Public Property before the time of provisional amendment due to the special account for educational expenditure.

[Ground of recognition] The facts without dispute, Gap evidence 1-1 through 3, Gap evidence 2-6, Gap evidence 7-1 through 3, Gap evidence 8, 9, Gap evidence 10-1 and 2, and the purport of the whole pleadings

A. (1) The Plaintiff’s assertion of inconsistency with the Constitution was made as to the provisions of the former Act. In light of the purport of the inconsistency with the Constitution as to the inconsistency with the Constitution of the Republic of Korea, the case that is pending before the court at the time of ruling of inconsistency with the Constitution as to the inconsistency with the Constitution should be subject to the instant case. Therefore, Article 5(4) of the amended Act should be applied to the instant case. (2) The Plaintiff performed the remodelling of the ○ Elementary School under the conditions that approved the housing construction plan, which constitutes the reconstruction of school facilities, and the school facilities under Article 5(4)4 of the amended Act include not only newly constructed and extended school facilities but also school facilities as well as reconstructed school sites charges against the Plaintiff.

(3) Other dispositions in this case are unlawful on the following grounds. ① In light of the fact that the subordinate-Si office of education made it the subject of consultation in accordance with the approval of the housing construction project plan to create and supply a site for an elementary school and a middle school, and later changed it to the improvement of educational facilities of the existing elementary school, the Defendant imposed school site charges even though there is no need to establish a school in the development project execution region, and the requirements for imposition are not satisfied. ② The instant disposition imposing school site charges is unlawful on the Plaintiff in violation of the Plaintiff’s trust beliefing such public opinion list. ③ The imposition of school site charges without any reduction or exemption is in violation of the principle of equality.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

(1) Determination on the first argument

As seen earlier, Article 5(4) of the amended Act does not apply retroactively pursuant to Article 1 of the Addenda to the amended Act, but is the enforcement date of the amended Act.

5. From 28.28. The Constitutional Court's decision of inconsistency with the Constitution without simply making a decision of unconstitutionality as to the provision of the former Act is to prevent a legal gap that is not exempt from the charges even if the person who falls under the grounds for exemption under the provisions of the former Act is not subject to the need to ensure the effectiveness of specific normative control in the adjudication of unconstitutionality, even if the amendment of the provisions of the former Act or retroactive application depends on the legislative discretion in principle, the above decision of inconsistency with the Constitution shall be deemed to affect the retroactive effect of the case that is pending in the court as at the time of the decision of inconsistency with the Constitution becomes an issue as to the unconstitutionality of the provisions of the former Act at least as at the time of the decision of inconsistency with the Constitution. Therefore, even if there is no transitional provision as to the same purport, the provisions of Article 5 (4) of the former Act shall not be applied to this case, and it shall be deemed that the provisions of Article 5 (2) of the amended Act with the unconstitutionality shall be applied (refer to the second decision as to the second decision).

Article 5(4)4 of the amended Act provides that "Where a development project operator supplies school sites or school facilities without compensation as public property belonging to the special accounts of City/Do educational expenses" as one of the grounds for the necessary exemption from charges for school sites, it shall be examined as to whether the remodeling works of the ○ Elementary School implemented by the Plaintiff constitute free supply of school facilities under the above provisions.

According to Gap evidence 15, Gap evidence 16-1, Gap evidence 16-2, Gap evidence 17, 18, 25-27, the remodeling work of ○○ Elementary School implemented by the plaintiff is related to the remodeling of the existing building, such as the replacement of the floor and part of the windows, cooling and heating facilities, replacement of the main building, replacement of the finishing materials of the main building, extension of a passage connected to the remodeling of the existing building, and installation of water purifiers. In light of this, the above remodeling work aims to improve or repair existing school facilities rather than expanding the capacity of the school itself, such as new construction or extension of the remodeling class.

However, the basic legislative intent of the Act on Special Cases Concerning the Securing of School Sites, Etc. (amended by Act No. 8679 of Dec. 14, 2007; hereinafter referred to as the "Special Cases Concerning the Establishment of Schools" is to cope with the increased demand for school due to the implementation of development projects. Article 1 of the same Act provides that where it is impossible to secure school sites or secure school sites, it shall facilitate the existing expansion of existing schools. Article 2 subparagraph 3 of the same Act provides that the definition of school site charges shall be collected from development project implementers for the purpose of procuring school sites or expanding existing school sites, such as securing school sites or expanding school facilities sites, which is only the cost collected for the extension of existing schools. Therefore, in determining whether the exemption provision of school sites falls under the grounds for such exemption, it shall be deemed that there is no demand for school sites, or that there is no special reason to regard the extension of school sites to the extent that it contributes to the improvement of the concept of the existing school sites to the extent that it does not meet the necessary purpose of the above revision provision of the Act.

(3) Judgment on the third argument

According to the records, Gap evidence Nos. 8, 9, and Gap evidence Nos. 10-1 and 2, it is acknowledged that the office of education and the plaintiff used the acquisition of school site as the contents of consultation in relation to the approval of the initial housing construction project plan and changed it into the improvement of existing elementary school facilities, etc. The office of education and the office of education and the office of education and the office of education and the office of education and the office of education and the office of education on the ground that unreasonable causes, such as budget waste following the establishment of unnecessary schools, problems in student accommodation plan, additional budget input due to changes in the future site, etc., may occur. However, even according to the evidence, it is unclear whether the office of education and the office of education and the office of education and the office of education have established the school site which the plaintiff planned to newly establish and supply the school site, and accordingly, it is found that the ground for change in the contents of consultation at the office of education and the office of education and the office of education and the office of education have no further need to impose the above new school site.

In addition, matters concerning the securing of school sites which the Plaintiff had previously consulted with the subordinate Si/Gu office of education are not supplying school sites without compensation, but selling school sites completed the construction site development project to the Gwangju District Office of Education of Gyeonggi-do. Of course, there is no evidence to acknowledge that the Defendant or the subordinate office of education issued a public opinion order that the school site should not be imposed if the Plaintiff performed the above consultation with the Plaintiff. Thus, the instant disposition does not violate the principle of trust protection. Furthermore, even if the Plaintiff performed construction related to the qualitative improvement of school facilities, such as remodeling construction, etc. at its own cost and supplied the increased portion of the public property value without compensation, this is not directly related to the realization of the legislative intent of the special law for the purpose of the quantitative expansion of school facilities in preparation for the increase of school demand due to development projects, and thus, it does not constitute an unlawful imposition of school sites per se under the special law, or in determining whether to impose school sites charges, it cannot be asserted that the Plaintiff did not contribute to the improvement of school sites itself with the reduction of charges for school facilities.

(4) Accordingly, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges private light;

Judges Kim Jong-chul

Related Acts and subordinate statutes

Special Cases concerning the Securing, etc. of School Sites (amended by Act No. 8679 of Dec. 14, 2007)

Article 1 (Purpose) This Act is to create school sites for public elementary schools, middle schools and high schools (hereinafter referred to as "school sites of various levels").

Securing school sites or securing school sites by prescribing special cases concerning the development and supply of school sites, bearing related expenses, etc.

The purpose is to facilitate the extension of existing schools in the vicinity, if it is impossible to do so.

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "school site" means land necessary to newly install school buildings, gymnasiums, training areas, and other school facilities of various levels of schools;

2. The term "development projects" means the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Site Development Promotion Act;

Creation of land for housing construction exceeding 100 households among projects executed under the Industrial Sites and Development Act and the Industrial Sites and Development Act;

Projects for development or construction of multi-family housing.

3. The term "charges for school sites" means charges for development projects falling under subparagraph 2, which are levied by the Special Metropolitan City Mayor, Metropolitan City Mayors or Do Governors.

(n) The "Mayor/Do Governor" (hereinafter referred to as the "Do Governor") cannot procure school sites or procure school sites to a person who implements a development project.

In such cases, expenses collected for the extension of an existing school in the vicinity (hereinafter referred to as "charges").

Article 5 (Imposition and Collection of Charges)

(1) The Mayor/Do Governor shall develop and sell the land for constructing detached houses in the development project area or sell multi-family housing therein.

A charge may be imposed and collected on a person who conducts it: Provided, That this shall not apply to any of the following development projects:

50,000,000

1. Selling housing sites or houses for relocation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects;

(2) In the case

2. Where rental houses are sold in lots.

3. Residents, land and construction in the urban development area under Article 2 (1) 2 of the Urban Development Act;

in the case of sale to the owner of the

4. Cases of residential environment improvement projects under subparagraph 2 (a) of Article 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

5. Existing residence in the rearrangement project area under subparagraph 2 (b) through (d) of Article 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

Where sale is made to persons, owners of land and buildings;

6. Where it is sold in lots to the members of the remodelling housing association under subparagraph 9 (d) of Article 2 of the Housing Act.

Special Cases concerning the Securing, etc. of School Sites (Amended by Act No. 7397, Mar. 24, 2005; Act No. 8679, Dec. 14, 2007)

of this title)

Article 5 (Imposition and Collection of Charges)

(4) A Mayor/Do Governor may exempt charges in any of the following cases: Provided, That in cases falling under subparagraphs 1 and 2, such charges may be exempted:

In cases falling under subparagraph 3, charges shall be exempted.

1. The special account for educational expenses for school sites presented by the opinions of the superintendents of education under Article 3 (3);

(2) In case of donation,

2. A development project in an area where demand for school establishment exists due to continuous decrease in the number of schoolchildrens for the last three years or more;

Cases of implementation

3. A development project for use without any occurrence of school demand, such as welfare houses for the aged under Article 32 of the Welfare of the Aged Act.

Cases of implementation

Special Cases concerning the Securing, etc. of School Sites (amended by Act No. 9743, May 28, 2009)

Article 5 (Imposition and Collection of Charges)

(4) A Mayor/Do Governor may exempt charges in any of the following cases: Provided, That subparagraphs 1 and 2 shall not apply:

In the case of subparagraphs 3 and 4, the charges shall be exempted.

1. Any school site presented by development project implementers according to the opinions of the superintendents of education under Article 3 (3) to the special accounts of City/Do educational expenses;

In case of donation,

2. Where a development project is implemented in an area without demand for school establishment because the number of schoolchildrens has continuously decreased for the last three years or more;

in the case of implementation

3. A development project for use for which demand for attending a welfare house for the aged under Article 32 of the Welfare of the Aged Act does not occur;

Cases of implementation

4. Development project implementers shall supply school sites or school facilities without compensation as public property belonging to the special accounts of City/Do educational expenses.

(2) In the case

A Addenda No. 9743, May 28, 2009

Article 1 (Enforcement Date)

This Act shall enter into force on the date of its promulgation.