[1] The meaning of "a site where de facto construction is not possible" under the latter part of Article 20 (1) 3 of the Act on the Ownership of Housing Site and the criteria for its determination

[2] The purpose of the special provision on the calculation of the mandatory use and development period under Article 21-2 of the former Enforcement Decree of the Act on the Ownership of Housing Site

[3] The case holding that where an application for a building permit is rejected as a result of a lawful examination under the construction-related laws and regulations, even if the application is rejected by neighboring residents' civil petition, it does not constitute a "housing site in the period during which construction is impossible by the government's administrative guidance" under Article 9-2 (1) 8 of the Enforcement Rule of the Act on Ownership of Housing Site or a similar case

[1] The term "site that cannot be constructed" under the latter part of Article 20 (1) 3 of the Act on the Ownership of Housing Site refers to the land that cannot be constructed due to physical reasons inherent in the relevant land itself in principle. Whether it is a site where construction is virtually impossible is determined according to the objective criteria for who owns the relevant site or who is not able to construct it, is not the nature of determining whether it is a site owner's subjective circumstances, such as that the building cannot meet the building requirements stipulated in the relevant Acts and subordinate statutes in personal circumstances.

[2] The purport of Article 21-2 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 15016, Jun. 4, 1996) that the special provision on the calculation of the period of the duty to use and develop a housing site is to guarantee the grace period that is excluded from the subject of the excess ownership charge by extending the period of the duty to use and develop the housing site for a limited period of time when it becomes impossible to use and develop the housing site due to objective reasons, such as the restriction on construction permission, etc.

[3] The case holding that where an application for a building permit is rejected as a result of a lawful examination based on the construction-related laws and regulations, the reason that the application could not be commenced due to the above return disposition alone does not constitute "a site under construction" or "a site under construction" or "a site under construction" under the administrative guidance of the government under Article 9-2 (1) 8 of the Enforcement Rule of the Building Site Ownership Act, and therefore, it does not constitute "a site under which it is impossible to construct" under the latter part of Article 20 (1) 3 of the Building Site Ownership Act.

[1] Article 20 (1) 3 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 of the Enforcement Decree of the Act on the Ownership of Housing Sites / [3] Article 20 (1) 3 of the Act on the Ownership of Housing Sites, Article 9-2 (1) 8 of the Enforcement Rule of the Act on the Ownership of Housing Sites

[1] [2] Supreme Court Decision 94Nu9122 delivered on June 13, 1995 (Gong1995Ha, 2408) / [1] Supreme Court Decision 94Nu13480 delivered on July 14, 1995 (Gong195Ha, 2818), Supreme Court Decision 95Nu12002 delivered on February 27, 1996 (Gong196Sang, 1143), Supreme Court Decision 96Nu1143 delivered on June 27, 1997 (Gong197Ha, 2384) / [2] Supreme Court Decision 94Nu1999 delivered on August 26, 199 (Gong194Ha, 2543), Supreme Court Decision 298Nu298989 delivered on July 29, 198 (Gong2989)

Sam Tech Ltd. (former trade name: Seoul Sports Center) (Attorney Park Jae-ho, Counsel for the defendant-appellant)

The head of Jongno-gu

Seoul High Court Decision 96Gu44626 delivered on October 2, 1997

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

The grounds of appeal are examined.

The term "site that cannot be constructed" under the latter part of Article 20 (1) 3 of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act") refers to the land that cannot be constructed due to physical reasons inherent in the relevant land itself in principle. Whether it is a site that is virtually impossible to construct is a site. It is not a subjective circumstance of the owner of a housing site, such as where the owner of a housing site is unable to meet the building requirements stipulated in the relevant Acts and subordinate statutes in terms of personal circumstances (see, e.g., Supreme Court Decisions 95Nu12002, Feb. 27, 1996; 96Nu1143, Jun. 27, 1997).

In addition, Article 21-2 of the Enforcement Decree of the Act (amended by Presidential Decree No. 15016, Jun. 4, 1996) provides for special provisions on the calculation of the period of use and development obligation, and the purport of the provision is to guarantee the substantial grace period excluded from the imposition of excess ownership charges by extending the period of use and development obligation for a limited period of time, if it is impossible to use and develop a housing site due to objective reasons such as restriction on construction permission. Thus, the above provision may apply only to cases where there are objective reasons to deem it reasonable to extend the period of use and development obligation (see, e.g., Supreme Court Decisions 94Nu9122, Jun. 13, 1995; 97Nu1826, Feb. 24, 1998).

Based on its adopted evidence, the lower court determined that the Plaintiff’s application for construction permit was rejected on the ground that it was necessary to supplement the plan for the management of vibration generated during construction and the measures to reinforce nearby water supply, etc. on the 3rd day from February 28, 1994 to December 9 of the same year between the Defendant, who is the competent agency, for the construction permit was filed three times, and the Plaintiff failed to perform the structural safety diagnosis of nearby ○○ Apartment apartment, even though it was reflected in the construction plan with the residents, and the result was not reflected in the construction plan. Furthermore, the safety diagnosis report submitted by the Plaintiff cannot be seen as a legitimate application for construction permit under the latter part of Article 1 of the Act, and that the Plaintiff could not be seen as an application for construction permit again during the construction period from February 6, 1995 to December 16, 195, and that the Plaintiff could not be seen as having returned the above construction permit to the Plaintiff’s first time during the construction permit to the extent that it did not meet the requirements for construction permit for construction permit.

In comparison with the above legal principles and records, the recognition and judgment of the court below is just, and there is no error in the misapprehension of legal principles as to extension of the period of use and development obligation, or exemption from the subject of imposition.

We cannot accept any argument in the grounds of appeal.

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 Kim Jong-sik (Presiding Justice)