Standards for calculating the change of form and quality of land subject to damage charges;

In full view of the provisions of Article 24(1) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436, Feb. 6, 2009); Article 36 of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (wholly amended by Presidential Decree No. 21139, Nov. 28, 2008); Article 13 of the former Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 74, Dec. 3, 2008), the change of the form and quality of the land subject to the imposition of the charge to damage development restriction zones shall be based on the area for which the change of the form and quality of the land is actually changed and the permission following permission for change

Article 24(1) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436 of Feb. 6, 2009); Article 36 of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 21139 of Nov. 28, 2008); Article 13 of the former Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 74 of Dec. 3, 2008) (see current Article 18)

[Defendant-Appellee] The Korea Development Bank of Korea (Attorney Cho Jong-chul, Counsel for defendant-appellee)

Goyang-si Market

Seoul High Court Decision 2011Nu38065 decided May 2, 2012

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

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles concerning the imposition of damage charges on development restriction zones

Article 12(1)1 (h) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436, Feb. 6, 2009; hereinafter “Restriction on Development Restriction Zones”) provides that “any person who intends to construct buildings or install structures which are public facilities or structures prescribed by Presidential Decree, such as schools, waste disposal facilities, and electricity supply facilities, and to change the form and quality of land resulting from such construction may perform such acts with permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu.” Article 21(1) provides that “The Minister of Land, Transport and Maritime Affairs shall, without delay, notify the Minister of Land, Transport and Maritime Affairs of the details of permission under the proviso to Article 12(1) or the proviso to Article 13 (1) (limited to permission due to change of the form and quality of land or permission to change the form and quality of land; hereinafter the same shall apply in Article 22), and the head of a Si/Gun/Gu shall, without delay, impose charges on a development restriction zone.”

The reasoning of the lower judgment is as follows: (a) comprehensively taking account of Articles 21(1), 22, and 25 of the Development Restriction Zone Act on the Imposition of Charges, the charges may be imposed upon the permission to change the form and quality of land; and (b) whether the alteration of the form and quality of land was actually conducted is not related to the imposition of charges. The Plaintiff, upon obtaining permission from the Defendant for the installation of a structure and for the alteration of the form and quality of the instant permitted site in order to build an advance road, to install a aggregate-line crushing machine, etc. in the instant permitted site with a permission for the alteration of the form and quality of the instant permitted site, which is a temporary facility for construction work, and opened an advance road by cutting, cutting, suspending, or packaging. Therefore, the Plaintiff is subject to the imposition of charges as a person who has obtained permission to change the form

In light of the aforementioned legal principles and records, the part of the judgment of the court below which determined that the Plaintiff was granted permission to change the form and quality of the instant permitted site during the original adjudication is inappropriate, but it is eventually justifiable to determine that the Plaintiff constitutes a person who obtained permission to change the form and quality of land among permission under the proviso to Article 12 (1) of the Development Restriction Zone Act. In so doing, the court below did not err by misapprehending the legal principles on the imposition of charges under

2. As to the assertion of misapprehension of legal principles as to the calculation standards of charges

In full view of Article 24(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 36 of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (wholly amended by Presidential Decree No. 21139, Nov. 28, 2008; hereinafter “Enforcement Decree of the Development Restriction Zones Act”), Article 13 of the former Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 74, Dec. 3, 2008), the change of the form and quality of land subject to charges shall be based on the area for which permission to change the form and quality of land or permission following change of the form and quality

The court below is so decided. In other words, in full view of Articles 24(1) and 25(7) of the Development Restriction Zone Act, and Article 36 of the Enforcement Decree of the Development Restriction Zone Act, if permission to change the form and quality of land or permission to change the form and quality of land is granted under the proviso of Article 12(1) of the Development Restriction Zone Act, the charges shall be calculated on the basis of the total area of land subject to permission involving change of the form and quality of land, regardless of whether the land subject to permission has actually changed the form and quality, and whether the land subject to permission has actually been actually constructed or installed a structure on the land subject to permission. However, if the area subject to permission is revoked pursuant to Article 30 of the Development Restriction Zone Act or has decreased due to the change of the business plan and other similar reasons, the charges already paid shall be refunded. Therefore, the plaintiff's assertion that "the charges

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the calculation basis of charges

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 Ko Young-han (Presiding Justice)