[1] The meaning of "site where de facto construction is not possible" subject to the exemption from the imposition of excess ownership charges

[2] Whether the circumstance where construction was not carried out under the conditions prior to the permission for changing the form and quality of neighboring residents' opposition constitutes "a case where a de facto construction is impossible" under Article 20 (1) 3 of the Act on the Ownership of Housing Site (negative)

[1] The second sentence of Article 20 (1) 3 of the Act on the Ownership of Housing Sites or the second sentence of Article 21-2 subparagraph 3 of the Enforcement Decree of the same Act refers to the land that cannot be constructed due to physical reasons inherent in the relevant land itself. Thus, whether it is a site which cannot be constructed is impossible or not shall be determined according to the objective criteria for who owns the relevant housing site or who is the owner of the housing site, and it shall not be determined according to the subjective circumstances of the owner of the housing site.

[2] In order for a housing constructor to construct a multi-family housing, the alteration of the form and quality of the land was intended to obtain permission to change the form and quality of the land, but it was not planned to do so due to the opposition of the neighboring residents, and the conditions of the prior permission are finally changed to the improvement of sewage and additional installation by the head of the competent authority after several changes were made, taking into account the opposition of neighboring residents, it is difficult to regard the period from the date of the commencement of the alteration of the form and quality to the date of the final alteration and determination of the terms and conditions of the prior permission, as the previous permission conditions were finally changed to the improvement and additional installation.

[1] Article 20 (1) 3 of the Act on the Ownership of Housing Sites, Article 21-2 subparagraph 3 of the Enforcement Decree of the Act on the Ownership of Housing Sites / [2] Article 20 (1) 3 of the Act on the Ownership of Housing Sites, Article 21-2 subparagraph 3 of the Enforcement Decree of the Act on the Ownership of Housing Sites

[1] Supreme Court Decision 94Nu6277 delivered on December 22, 1994 (Gong1995Sang, 685), Supreme Court Decision 94Nu9122 delivered on June 13, 1995 (Gong1995Ha, 2408), Supreme Court Decision 95Nu9037 delivered on October 13, 1995 (Gong1995Ha, 3808), Supreme Court Decision 95Nu12002 delivered on February 27, 1996 (Gong196Sang, 1143)

Seoul High Court Decision 200Na14488 delivered on August 1, 200

The head of Seocho-gu Seoul Metropolitan Government

Seoul High Court Decision 95Gu31166 delivered on July 10, 1996

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

We examine the grounds of appeal.

Article 20 (1) 3 (latter part) of the Act on the Ownership of Housing Sites or Article 21-2 (3) of the Enforcement Decree of the same Act refers to a site where it is impossible to construct due to physical reasons inherent in the relevant land itself. Whether it is a site where construction is de facto impossible is determined according to the objective criteria as to who owns the relevant housing site or who is not able to construct it, is not in the nature of the determination based on the subjective circumstances of the owner of the housing site (see Supreme Court Decisions 95Nu12002 delivered on February 27, 1996, 95Nu9037 delivered on October 13, 1995, etc.).

In the same purport, the court below is just in holding that it is difficult to regard the period from the date of the commencement of the construction work to the date of the final change or determination of the conditions of the change of the form and quality as the site in this case falls under the "site where it is impossible to construct" the site in this case due to the reason that the plaintiff could not be seen as the period from the date of the commencement of the construction work to the date of the final change or determination of the terms and conditions of the change of the form and quality as the conditions of the prior permission was changed and confirmed as the conditions of the prior permission did not proceed in accordance with the plan due to the opposition of neighboring residents, considering that the conditions of the prior permission were changed in several times by the head of Guro-gu under the jurisdiction of Guro-gu, which were finally changed and decided through the improvement of sewage system and the additional construction.

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 Cho Chang-hun (Presiding Justice)