Whether Article 8 (1) 2 of the Enforcement Decree of the Restitution of Development Gains Act is null and void due to a violation of Article 9 (3) 2 of the same Act, a parent corporation.

Article 9 (3) 2 of the former Restitution of Development Gains Act (amended by the Presidential Decree No. 4563 of Jun. 11, 1993) provides that "the purpose of development project" means "the purpose of the development project for housing construction". Thus, it shall be deemed that "housing construction" is "the commencement date of the construction project for housing construction". Thus, if a project operator starts the construction of housing for housing construction after completion of housing construction, the starting date of the construction shall be immediately "the commencement date of the construction project for the purpose of the development project". However, Article 8 (1) 2 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 13956 of Aug. 12, 1993) provides that "the development project for the development of land and the construction of a building shall be deemed to be the completion date of the development project as prescribed by the same Act and it shall be deemed to be the expiration date of the construction project, which shall be less than the expiration date of the construction project, which shall be less than the expiration date of the construction project.

Articles 5 and 9(3)2 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993); Article 2 of the Addenda of the same Act (amended by Presidential Decree No. 13956 of Dec. 30, 1989); Article 8(1)2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993); Article 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13465 of Sep. 13, 1991) 1 of the same Act

Plaintiff 1 and one other

The head of Dobong-gu Seoul Metropolitan Government

Seoul High Court Decision 92Gu11970 delivered on February 18, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

(1) According to Article 9(3)2 of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; hereinafter “Act”), Article 9(3)2 of the same Act provides that the time of completion of a development project shall, in principle, be the date the completion of the development project is authorized, and the time when the project operator starts the use for the purpose of the development project shall be the time of completion of the development project. According to Article 8(1)2 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13465, Sep. 13, 1991; hereinafter “Enforcement Decree”), where the use for the purpose of the development project is commenced pursuant to Article 9(3)2 of the Act, the time of completion of the development project shall be the time when the development project

However, according to Article 5 of the Act and attached Table 1 of the Enforcement Decree of the Housing Construction Promotion Act, a housing site preparation project implemented by a person who has obtained approval of the housing construction project plan under the same Act in addition to a housing site preparation project under the same Act shall be subject to development charges. As such, in the housing site preparation project implemented for housing construction, the term "purpose of a development project" under Article 9 (3) 2 of the Act refers to "purpose of a housing site preparation project implemented for housing construction", and therefore, the term "housing construction"

In this regard, if the construction of housing was commenced on the land after the project operator completed the housing site creation for housing construction pursuant to Article 9 (3) 2 of the Act, the commencement date will be the time the construction starts immediately.

Nevertheless, Article 8 (1) 2 of the Enforcement Decree of the Act provides that the time of completion of development of land and the time of commencement of use of a building constructed on the land which is later than the time of completion of development projects shall not be deemed the time of completion of development projects as well as the time of completion of development projects as the time of completion of development projects. In particular, the development project completed before the enforcement date of the Act as of January 1, 1990 can not be imposed on the development project completed before the enforcement date of the Act pursuant to Article 2 of the Addenda of the Act, which provides that the project shall be governed by the Act. However, although the site creation was completed before the enforcement date of the Act, the use of the building has resulted in the result of imposing development charges on the housing construction project executor after the enforcement date of the Act, which is a provision infringing the national interest, and therefore, it is valid only because the delegation of the mother Act is not a ground for delegation of the Act, such as Article 9 (3) 2 of the Act.

(2) According to the reasoning of the judgment below, the court below found the following facts in light of the adopted evidence and found that the plaintiffs were subject to an interim inspection pursuant to Article 7-2 of the former Building Act (wholly amended by Act No. 4381 of May 31, 1991) after completion of construction work after cutting out the land of this case where the land of this case was cut on the YY and dump truck with the approval of the housing construction project of this case and completing the construction site creation from July 1, 1989, and completed the basic construction work, and completed the interim inspection pursuant to Article 7-2 of the former Building Act (wholly amended by Act No. 4381 of May 31, 1991). On the premise that Article 8 (1) 2 of the Enforcement Decree of the Building Act is null and void, the court below did not err in the misapprehension of legal principles as to the land of this case at the time of completion of development project, and it did not err in the misapprehension of legal principles as to the development project of this case.

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

Chief Justice Park Jong-young (Presiding Justice) (Presiding Justice) and Park Jong-ho (Presiding Justice), Park Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Park Jong-ho, Park Jong-ho