[1] The meaning of a project implementer as a person obligated to pay development charges under the main sentence of Article 6(1) of the Restitution of Development Gains Act

[2] Where a project operator who is a landowner entrusts land to a real estate trust company, and a real estate trust company succeeds to the status of a project operator and implements a development project on the land trusted, the person to whom the development gains arising from the increase of land value belongs and the person liable to pay the development charges (=trustee)

[3] The purport of the proviso of Article 6(1)3 of the Restitution of Development Gains Act (amended by Act No. 6(1)3) with respect to a person liable for payment

[1] Article 6 (1) of the Restitution of Development Gains Act / [2] Article 6 (1) of the Restitution of Development Gains Act, Article 19 (see current Article 27) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201) / [3] Article 6 (1) 3 of the Restitution of Development Gains Act

[1] Supreme Court Decision 92Nu19354 Decided August 24, 1993 (Gong1993Ha, 2639) / [2] Supreme Court Decision 2010Du2395 Decided June 14, 2012 (Gong2012Ha, 1229) Supreme Court Decision 2013Du14696 Decided August 28, 2014 (Gong2014Ha, 1891) / [3] Supreme Court Decision 2008Du19321 Decided March 12, 2009 (Gong209Sang, 478)

Korea Land Trust Co., Ltd. (Law Firm LLC, Attorneys Park Jong-bong et al., Counsel for the plaintiff-appellant)

Racing Market (Attorney Seo-jin, Counsel for the defendant-appellant)

Daegu High Court Decision 2012Nu1243 decided October 26, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 2

In view of the purpose of enacting the Restitution of Development Gains Act (hereinafter “Development Gains Restitution Act”) that prevents speculation in land and contributes to the sound economic development of the nation by properly distributing development gains generated from land, and thereby promoting the efficient use of land, or considering that the increase in land value reverted to a person executing the development project (hereinafter “project operator”) or landowner in excess of the increases in normal land prices due to the implementation of the development project is subject to the imposition of development charges, a project operator as a person liable to pay development charges under the main sentence of Article 6(1) of the Development Gains Refund Act refers to a project operator who is the landowner who gains an unincome from the implementation of the development project, barring any special circumstance (see Supreme Court Decision 92Nu19354, Aug. 24, 1993, etc.). Since, if the ownership transfer registration is completed in the future of a real estate trust, the ownership inside and outside the trust is entirely transferred to the trustee, the ownership in the trust’s internal relationship is not reserved against the truster, who actually acquired from the trust or trust company’s property (see, etc.).

For the reasons indicated in its holding, the lower court determined that the Plaintiff’s trustee who completed the registration of ownership transfer with respect to the instant land pursuant to the instant trust agreement concluded with the Jindo Housing Co., Ltd. (hereinafter “Jindo Housing”) is a landowner stipulated in the main sentence of Article 6(1) of the Development Gains Restitution Act, and thus constitutes a person obligated to pay development charges, and that only the development project stipulated in Article 6(1)1 proviso of the Development Gains Refund Act cannot be deemed as a person entrusted

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to the obligor of development charges under Article 6 of the Restitution of Development Gains Act or the legal principles as to "in the case of entrusting a development project" under Article 6 (1) 1 proviso

2. As to the third ground for appeal

The proviso of Article 6(1)3 of the Development Gains Refund Act provides that the person who succeeds to the status of a project operator before the completion of the development project shall be liable to pay the development charges in cases where the status of the project operator is succeeded. The above provision of the Act is established in consideration of the fact that it is not easy to take into consideration the development gains accrued until the succession of the status and the development gains accrued after the succession of the status where the development project is succeeded. Barring special circumstances, such as where it is impossible to make an agreement on the succession of the development gains and the development charges on the premise that it is possible between the parties to the succession of the development project, the parties to the succession of the development project shall be held liable to pay the development charges (see Supreme Court Decision 2008Du19321, Mar. 12,

After finding the facts as indicated in its reasoning, the lower court determined that the Plaintiff’s succession to the status of the project operator prior to completion of the development project as stipulated in Article 6(1)3 proviso of the Development Gains Refund Act, on the ground that the Plaintiff and the semi-do Housing agreed on the allocation of development charges and succession following the execution of the instant project at the time of concluding the instant trust contract.

Examining the reasoning of the judgment below in light of the above legal principles, in this case where the plaintiff and the semi-house were not able to enter into an agreement on the succession of development gains and development charges between the plaintiff and the non-resident housing, there is no circumstance to find that it was impossible to enter into an agreement on the succession of development gains and development charges, the plaintiff is obligated to pay the whole development charges calculated including the development gains accrued until such succession. Thus, the court below's conclusion that the plaintiff is a person who succeeded to the status of the project operator is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on "the person who succeeded to the status of the project operator before completing the development project" under Article 6 (1) 3 of the Restitution of Development Gains Act.

3. 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 Lee In-bok (Presiding Justice)