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(영문) 대법원 1995. 7. 14. 선고 95누1149 판결
[택지초과소유부담금부과처분취소][공1995.8.15.(998),2823]
Main Issues

The meaning of "land on which the building concerned is constructed" under the Enforcement Decree of the Act on the Ownership of Housing Sites [Attachment 1] and paragraph (1) of the non-fixed Act

Whether it is a land annexed to a building under Article 3 subparagraph 1 of the Enforcement Decree of the Act on the Ownership of Housing Site

Summary of Judgment

(a) The phrase "land on which the building in question is constructed" under the Enforcement Decree of the Act on the Ownership of Housing Site and its attached Table 1 [Attachment 1] shall be interpreted as meaning the land on which the building in question is constructed.

(b)The determination of whether the land is the land annexed to a building as provided in Article 3 subparagraph 1 of the Enforcement Decree of the Housing Site Act shall not be based on whether the land was the land annexed to the building since the building permission was granted, or whether it was acquired after the new construction of the building, and shall be objectively determined according to the actual use situation during the period for the imposition

[Reference Provisions]

(a) Item 1 (b) of Article 2 of the Act on the Ownership of Housing Sites; (a) Article 2 subparagraph 1 (b) of the Enforcement Decree of the Act on the Ownership of Housing Sites [Attachment 1] and paragraph 1 (b) of Article 3 of the Enforcement Decree of the Act on the Ownership of Housing

Reference Cases

B. Supreme Court Decision 94Nu8372 delivered on December 27, 1994 (Gong1995Sang, 704) 94Nu10542 delivered on April 11, 1995

Plaintiff-Appellee

Plaintiff-Appellee et al., Counsel for the plaintiff-appellee

Defendant-Appellant

The head of Jongno-gu Seoul Metropolitan Government

Judgment of the lower court

Seoul High Court Decision 93Gu27743 delivered on December 7, 1994

Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

The defendant's grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 3 subparagraph 1 of the Enforcement Decree of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Enforcement Decree") and Article 3 subparagraph 1 of [Attachment Table 1] of the Enforcement Decree of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act") excludes the land annexed to a building within a certain scope from the site subject to the imposition of excess ownership charges (hereinafter referred to as the "charges") by delegation of Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act"), and define the scope of the land annexed to a private building as a matter of principle by multiplying the building area of the building by the ratio of non-specific use area by the ratio of non-specific use area on the building area of the building. In the case of a building, Article 3 (1) of the Enforcement Decree [Attachment 1] of the Act on the Ownership of Housing Sites provides that if the standard market area of the building is less than 10/100 of the standard market area of the building, the building area of the building in question shall be interpreted as the "relevant land".

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, such as theory of lawsuit, in the judgment below.

2. Regarding ground of appeal No. 2

The issue of whether the land is the land annexed to a building under Article 3 subparagraph 1 of the Enforcement Decree shall not be determined by whether the relevant land was a land annexed to the building since the building permit was granted, or whether it was acquired after the new construction of the building, but shall be objectively determined according to the actual use situation during the period of the charge imposition (see, e.g., Supreme Court Decisions 94Nu8372, Dec. 27, 1994; 94Nu10542, Apr. 11, 1995).

The court below is just in holding that the land of this case Nos. 1 through 4 is divided into four lots, but its entire part is used as a site for the building of this case, which is a restaurant business facility located within the same fence, since each of the above land is used as a site for the building of this case, which is a restaurant business facility within the same fence, in light of its actual use status, it shall be deemed as the land of each of the above buildings, and there is no error of law in the misapprehension of legal principles, such as theory of lawsuit, in the judgment below.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)

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