EXE Industry Development Co., Ltd. (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Head of Seo-gu Daejeon Metropolitan City (Law Office of Daejeon, Attorney Han-won, Counsel for the defendant-appellant)

March 30, 2016

1. The Defendant’s refusal to refund additional dues against the Plaintiff on September 2, 2014 confirms that the disposition against the Plaintiff is invalid.

2. The costs of the lawsuit are assessed against the defendant.

The text of paragraph (1) is as follows.

1. Details of the disposition;

A. The Plaintiff constructed the old-man apartment on the ground of the land of 656-67 and 10 lots, Seo-gu, Daejeon.

B. In accordance with the former Infrastructure Charges Act (amended by Act No. 9051, Mar. 28, 2008; hereinafter “former Infrastructure Charges Act”), the Defendant imposed the following infrastructure charges and additional charges on the Plaintiff.

Additional charges for infrastructure charges of March 16, 201, 200,000 on March 16, 2011; - KRW 517,04,600 on January 17, 2013; 367,465,010 on January 16, 201

C. On January 15, 2013, March 17, 2013, the Plaintiff paid KRW 527,04,60, and the additional 367,465,010 to the Defendant via two occasions.

D. The Plaintiff, while constructing the old-man apartment, contributed to the construction of a road site, which is an infrastructure, and paid the waterworks and sewerage charges. Accordingly, on August 18, 2014, the Plaintiff applied for the return of the infrastructure charges and additional charges that were paid to the Defendant pursuant to Article 17 of the former Infrastructure Charges Act and Article 15(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21038, Sept. 25, 2008; hereinafter the same).

E. On September 2, 2014, the Defendant notified the Plaintiff that “it shall refund KRW 527,044,60 of the infrastructure charges already paid, but the additional dues shall not be refunded KRW 367,465,010” (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3 (including each number, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As long as the Defendant is liable to refund the infrastructure charges that the Plaintiff paid, and the Defendant accordingly refunded the infrastructure charges that the Plaintiff paid, the Defendant is also obligated to refund the additional charges imposed in addition thereto to the Plaintiff. Nevertheless, the Defendant did not refund the additional charges to the Plaintiff. As such, the instant disposition is null and void due to significant and apparent defects.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law and objectively. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be given to the specificity of the specific case itself. In a case where an administrative disposition was rendered by applying a certain provision to a certain legal relation or factual relationship, despite the lack of room for dispute over the interpretation of the law, the legal principles clearly stating that the provision of the law cannot be applied to the legal relation or factual relationship, and thus, if there is room for dispute over the interpretation of the law because the legal principles that the provision of the law cannot be applied to the legal relation or factual relation clearly show, it is not clear that the defect is serious and obvious. However, even if the administrative disposition was erroneously interpreted by the administrative agency, it is merely a mistake in the fact of the requirement for the disposition (see, e.g., Supreme Court Decision 2009Du28255, Sept. 24,

2) The additional dues and increased additional dues under Articles 21 and 22 of the National Tax Collection Act, which are applied mutatis mutandis by Article 16(2) of the former Infrastructure Charges Act, are the kind of the incidental tax added in the meaning of the interest on arrears where the infrastructure charges are not paid by the payment deadline, and if the additional right holder fails to pay the infrastructure charges by the payment deadline without taking the procedure for establishing the additional dues, the additional dues are naturally generated and the amount thereof is determined (see Supreme Court Decision 93Nu10521, Oct. 8, 1993, etc.). However, if the amount of the charge initially imposed is reduced due to the decision cancellation or the decision of correction, etc., it is reasonable to deem that the additional dues are revoked or reduced accordingly (see Supreme Court Decision 86Nu766, Sept. 9, 1986, etc.).

3) Article 8(4) of the former Infrastructure Charges Act provides that where a person liable to pay infrastructure charges pays the infrastructure charges pursuant to Article 138 of the Local Autonomy Act or other charges prescribed by Presidential Decree, an amount equivalent to the above amount shall be deducted from the infrastructure charges. Article 8(5) of the same Act provides that where a person liable to pay infrastructure charges directly installs infrastructure charges and such infrastructure belongs to the State or a local government, an amount equivalent to the relevant installation charges shall be deducted from the infrastructure charges. Article 17(1) of the former Infrastructure Charges Act provides that where the area subject to permission has decreased due to the cancellation of a building permit or the modification of a construction plan or any other similar cause, an amount equivalent thereto shall be refunded. In addition, Article 15(2) of the Enforcement Decree of the same Act provides that where a person liable to pay infrastructure charges is obliged to refund the infrastructure charges pursuant to Article 17(1)1 and 2 of the same Act, where a person liable to pay additional charges additionally pays the infrastructure charges pursuant to Article 8(5) of the same Act, the same shall also apply to cases where a person liable to pay additional charges later due to be refunded.

4) In light of the above legal principles, even if the Plaintiff paid the instant disposition to the Health Unit and the Defendant for the reason that the disposition was unlawful at the time of imposing the infrastructure charges, including additional dues, and the grounds for refunding the infrastructure charges have occurred thereafter, so long as the Defendant paid the Plaintiff the total amount of the infrastructure charges paid to the Plaintiff by deeming that the Plaintiff was not liable to pay the infrastructure charges, the additional charges imposed in addition to the infrastructure charges should be refunded in full. Nevertheless, the Defendant refused to refund the additional charges. Nevertheless, the instant disposition that the Defendant refused to refund the infrastructure charges but refused to refund the additional charges, which is a kind of incidental dues, is serious and clear. Accordingly, the instant disposition is null and void

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Park Man-man (Presiding Judge)