2014du42193 Revocation of revocation of imposition of charges for school site

Korea Land and Housing Corporation

Sejong Special Self-Governing City President

Daejeon High Court Decision 2014Nu10903 Decided September 18, 2014

November 24, 2016

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Article 2 subparagraph 2 of the former Act on Special Cases concerning the Creation, Development, and Supply of School Sites for Public Elementary Schools, Middle Schools, and High Schools (amended by Act No. 13006, Jan. 20, 2015; hereinafter referred to as "School Site Act") provides that "development projects" shall mean projects implemented under the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act (hereinafter referred to as the "Building Act, etc.") with a scale of at least 10 households among the projects implemented under Article 2 subparagraph 2 of the former Act (amended by Act No. 13006, Jan. 2015; hereinafter referred to as "development projects"), which provide for special cases concerning the creation, development, and supply of school sites for public elementary schools, middle schools, or high schools; and subparagraph 3 of Article 3 provides that "charges for development projects shall be expenses to be collected from persons who are near to secure school sites under Article 16 of the former Building Act.

2. The lower court found that: (a) the Plaintiff was designated as the project implementer of the construction project for a multifunctional administrative city under Article 18 of the Special Act on New Administrative Capital (hereinafter “instant project”); (b) the Plaintiff obtained approval for the implementation plan of the instant project from the head of the administrative-oriented city Construction Agency for the implementation plan; (c) the Plaintiff supplied the land created under the said implementation plan as a detached house site within the sphere of 1-1 zone of the multifunctional administrative city; and (d) the Defendant imposed school site charges on the Plaintiff on May 20, 2013 on the Plaintiff; and on May 20, 2013, the Defendant imposed school site charges on the actual user of the multifunctional administrative city supplied by the Plaintiff pursuant to Articles 5 and 5-2 of the School Sites Act. Furthermore, the instant project subject to the imposition of school site charges under the Special Act on New Administrative Capital includes a project deemed to have obtained authorization

3. However, the lower court’s determination is difficult to accept for the following reasons.

(1) Administrative laws and regulations that serve as the basis for an indivative administrative disposition shall be strictly construed and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative disposition, and shall not deviate from the ordinary meaning of the language and text thereof even in cases where a teleological interpretation is allowed taking into account the legislative intent and purpose of such administrative regulations

In addition, in a case where any Act stipulating the matters concerning the principal authorization and permission has a provision regarding the principal authorization and permission under other Acts, it is limited to the case where the principal authorization and permission are granted, and it does not apply to all the provisions of other Acts premised on the authorization and permission granted under other Acts (see Supreme Court Decisions 2004Da19715, Jul. 22, 2004; 2004Da19715, Jul. 22, 2004).

(2) As seen earlier, Article 2 subparag. 2 of the School Sites Act on a project subject to imposition of charges for a school site does not stipulate a special Act on a new administrative capital as the basis of the relevant project. In addition, when an implementation plan for a construction project of a multifunctional administrative city is approved pursuant to Article 22(1) of the Special Act on a New Administrative Capital, construction permission under the Building Act (Article 16), authorization for an implementation plan under the Urban Development Act (Article 16), and approval for an implementation plan under the Housing Act (Article 30) is considered to have been granted. However, it is only deemed to have been granted approval for an implementation plan for a construction project of a multifunctional administrative city under the Special Act on a New Administrative Capital, but it does not apply to all the provisions of the Building Act, the Urban Development Act, and the Housing Act on the premise that such permission, authorization, or approval has been granted. Accordingly, the construction project of a multifunctional administrative capital under the Special Act does not include a development project subject to imposition of charges for a school site under Article 2 subparag. 2 of the School Sites Act.

(3) Nevertheless, the lower court determined that the instant disposition that imposed school site charges on the instant project on a different premise was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of development projects subject to the imposition of school site charges, thereby adversely affecting the conclusion

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Cho Jong-hee, Justice Cho Jae-hee

Justices Park Sang-ok