Whether Article 5(1) of the former Act on Special Cases concerning the Securing, etc. of School Sites concerning the Imposition of Charges for School Sites prohibits a person who sells multi-family housing from including an amount equivalent to the charges for school sites in selling prices (negative)

Article 5(1) of the former Act on Special Cases Concerning the Securing, etc. of School Sites (Amended by Act No. 13006, Jan. 20, 2015)

Plaintiff 1 and 28 others (Law Firm Jinsu, Attorneys Lee Gyeong-hee et al., Counsel for the plaintiff-appellant)

Public Official Pension Corporation (Law Firm LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na204074 decided April 7, 2016

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 5(1) of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015; hereinafter “former Act on Special Cases concerning School Sites”) provides for the imposition of charges on school sites by stipulating that “A Mayor/Do Governor may develop and sell land to construct a detached house in a development project area or impose and collect charges from persons who sell the apartment house.” This provision is only a basis provision for imposing and collecting charges on school sites from persons, etc. who sell the apartment house by the head of a local government, and does not prohibit those who sell the apartment house from including an amount equivalent to the charges on school sites in the sale price.

B. The lower court, based on its reasoning, determined that even if the sales price of an apartment sold by the Defendant to the Plaintiffs included an amount equivalent to the charges for school site, it cannot be deemed a violation of Article 5(1) of the former Act on Special Cases concerning School Sites. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on Article 5(1)

2. Regarding ground of appeal No. 2

On the grounds indicated in its reasoning, the lower court determined that Article 38-2 of the former Housing Act (amended by Act No. 10219, Mar. 31, 2010) does not apply to apartment buildings sold by the Defendant to the Plaintiffs. Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the upper limit price ceiling

3. As to the remaining grounds of appeal

For the reasons indicated in its holding, the lower court determined that no refund agreement was concluded between the Plaintiffs and the Defendant regarding the amount equivalent to the charges for school site, and that the Defendant’s refusal to refund the amount equivalent to the charges for school site cannot be deemed to violate the principle of trust and good faith. Examining the reasoning of the lower judgment in light of the records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there was no error of misapprehending the facts regarding

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Park Jung-hwa (Presiding Justice)