The purport of the restitution system of development gains, and whether Article 10(1) and Article 13 of the former Restitution of Development Gains Act violate the Constitution (negative)

The restitution system of development gains is a system developed to recover development gains accruing from land speculation and increase in land prices due to land development projects, etc., which are core today's land issues, to realize economic justice, and to contribute to the sound development of the national economy through the efficient utilization of land. Whether to recover development gains according to certain methods and to what extent the development gains are to be determined by the law, and so long as it does not violate the principle of proportionality required for denying private property rights or for restricting property rights guaranteed by the Constitution or the principle of excessive prohibition of property rights, it is the problem of legislative policy to ensure that the imposition of development charges should be carried out in harmony between the development charges and the development charges under Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5108, Dec. 29, 1995; Act No. 5409, Aug. 30, 1997).

Article 10(1) of the former Restitution of Development Gains Act (Amended by Act No. 5108, Dec. 29, 1995); Articles 1, 10(1), and 13 of the former Restitution of Development Gains Act (Amended by Act No. 5409, Aug. 30, 1997); Article 23 of the Constitution

Constitutional Court Decision 95HunBa37 delivered on May 28, 1998 (HunGong28, 463) Supreme Court Decision 97Nu16787 delivered on January 18, 200 (Gong200Sang, 499)

Dongwon Tourism Development Co., Ltd. (Attorney Jeong Ho-hun, Counsel for the defendant-appellant)

Suwon Market

Seoul High Court Decision 99Nu3432 delivered on August 20, 1999

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

We examine the grounds of appeal.

1. As to the second ground for appeal

Since the restitution of development gains is a system developed to recover development gains arising from land speculation and increase in land prices due to land development projects, etc. which are core today's land issues, to realize economic justice, and to contribute to the sound development of the national economy through the efficient utilization of land, the determination of which development gains is to be recovered according to any method, and the rate to be recovered is the problem of legislative policy, unless it violates the principle of proportionality required for the denial of private property rights or for the restriction of property rights guaranteed by the Constitution, or the principle of excessive prohibition of property rights, etc., which is the first time to impose the development charges, and the first time to impose the development charges at the time of the imposition of the development charges and the second time to achieve the specific imposition of the development charges, the difference between the development charges and the third time to be imposed by the person liable for the imposition of the development charges and the second time to impose the development charges shall be determined at the time of expiration of the imposition of the development charges, and the second time to be determined at the time of the imposition of the development charges and the second time.

2. As to the grounds of appeal Nos. 1, 3, and 4

According to the reasoning of the judgment of the court of first instance cited by the court below, the first instance court deemed that the area of the land subject to the project of this case is the area subject to development charges on the basis of the whole site area stated in the construction permit for the building of this case, and calculated development charges by deducting the amount of KRW 25,236,745 from the land at the time of completion of imposition based on such area, which is the development costs, is lawful. On the other hand, the defendant's settlement disposition of this case is lawful. Since the land subject to the project of this case had already been developed before the execution of the development project of this case, there is insufficient evidence that the plaintiff's assertion that the development charges should be calculated with only the remaining area of the land excluding such part is insufficient. In light of the records, the first instance court's measures

In the case of a development project accompanied by a land category change due to the construction of a building, the plaintiff's ground of appeal that the project subject to development charges should be determined only on the basis of the building area of the building cannot

In addition, as otherwise asserted in the ground of appeal, even if there were errors in the decision of the court of first instance that would apply to the instant disposition for settlement, the amount of development charges calculated under Article 10(1) of the Restitution of Development Gains Act, amended by Act No. 5108, Dec. 29, 1995, does not differ from the amount of development charges calculated under the previous provisions, so there is no influence on the result of the decision.

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 on the bench.

Justices Lee Yong-hun (Presiding Justice)