In a case where the Korea Land and Housing Corporation, etc. designated as an executor of the Jeonju and complete city development project and completed the project, and the head of the competent Gun imposed the development charges for the project to the project implementer, and the Korea Land and Housing Corporation, etc. filed a lawsuit seeking revocation as it was illegal since the said disposition was imposed without any relevant statute, the case holding that the above disposition is not unlawful since the permission and approval of the Housing Site Development Promotion Act, etc. prescribed in Article 4 [Attachment 1] of the former Enforcement Decree of the Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies is deemed as legal fiction of

The Korea Land and Housing Corporation, etc. has been designated as the executor of the Jeonju and Jeonju Urban Development Project and completed the project, and the head of the competent Gun imposed the development charges for the project on the project implementer, and the Korea Land and Housing Corporation, etc. has filed a lawsuit seeking revocation as it was illegal because

Although Article 5(1) of the former Restitution of Development Gains Act (amended by Act No. 12245, Jan. 14, 2014; hereinafter “former Restitution of Development Gains Act”) which provides the scope of development projects subject to charges and Article 4 [Attachment 1] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 25452, Jul. 14, 2014); the former Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies (amended by Act No. 8974, Mar. 21, 2008; hereinafter “former Innovation City Act”) or the innovation urban development project is not provided for in the former Restitution of Development Gains Act (amended by Act No. 12245, Jan. 14, 2014; hereinafter “former Innovation City Act”) which does not stipulate that the project is subject to imposition of the same Act and its attached Table 1 of the former Enforcement Decree of the Housing Site Development Promotion Act (amended by Presidential Decree No. 25452, etc.).

Article 5(1) and (3) of the former Restitution of Development Gains Act (Amended by Act No. 12245, Jan. 14, 2014); Article 4 [Attachment 1] of the former Enforcement Decree of the Restitution of Development Gains Act (Amended by Presidential Decree No. 25452, Jul. 14, 2014); Article 10 of the former Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies (Amended by Act No. 8974, Mar. 21, 2008; see current Article 10), Article 11 (see current Special Act on the Construction and Development of Innovation Cities), Article 12 (see current Article 12 of the Special Act on the Construction and Development of Innovation Cities) and Article 14(1) (see current Article 14(1) of the Special Act on the Construction and Development of Innovation Cities)

Korea Land and Housing Corporation and one other (Law Firm LLC, Attorneys Lee Dong-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on May 1, 201

April 25, 2018

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s imposition disposition of each development charge against the Plaintiffs on June 1, 2017 is revoked.

1. Details of the disposition;

A. In accordance with Article 3 of the former Housing Site Development Promotion Act (wholly amended by Act No. 8384 of Apr. 20, 2007), the Minister of Construction and Transportation, on Nov. 23, 2006, designated a housing site development area of 9,260,00 square meters in the documents of Jeonju-si, Jeonju-dong, Jeonju-dong, and Jeonbuk-gun, as the implementer of the plaintiffs for Jeonju-dong, Jeonju-dong, and Jeonbuk-gun, Jeonbuk-gun as the designated housing site development area (No. 2006-488 of the Ministry of Construction and Transportation).

B. On April 16, 2007, pursuant to Article 6 of the Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies (amended by Act No. 8656 of Oct. 17, 2007) and Article 2 of the Addenda, the Minister of Construction and Transportation designated for the project of this case the area identical to the housing site development area described in the above paragraph as the planned area for innovation city development (No. 2007-117 of the Ministry of Construction and Transportation).

C. The Minister of Construction and Transportation announced the approval of the development plan of the instant business on September 4, 2007 (No. 2007-342 of the Ministry of Construction and Transportation), and on March 4, 2008, notified the approval of the implementation plan of the instant business (No. 2008-91 of the Ministry of Construction and Transportation).

D. The Plaintiffs designated as an implementer of the instant project, and the Minister of Land, Infrastructure and Transport first announced the completion of the instant project on February 3, 2014 (No. 2014-72) and finally announced the completion of the project on February 1, 2017 (No. 2017-168 of the Ministry of Land, Infrastructure and Transport).

E. On June 1, 2017, the Defendant imposed development charges of KRW 12,220,755,180 on the Plaintiff Korea Land and Housing Corporation, and KRW 7,53,929,580 on the Plaintiff Jeonbuk Development Corporation, respectively, as the development charges of the instant project.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 3 (including branch numbers, hereinafter the same shall apply), Eul evidence 1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

Article 5(1) of the former Restitution of Development Gains Act (amended by Act No. 12245, Jan. 14, 2014; hereinafter “Development Gains Refund Act”) lists projects subject to development charges, and delegates the scope, scale, etc. to the Enforcement Decree. Article 4 and attached Table 1 of the former Enforcement Decree of the Development Gains Refund Act (amended by Presidential Decree No. 25452, Jul. 14, 2014; hereinafter “Enforcement Decree of the Act”) (hereinafter “Attachment 1”) lists projects subject to the imposition of development gains in a limited manner based on the types of projects and the relevant laws. However, the Act on the grounds of the imposition of the attached Table of this case lists the same as those of the former Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies, which was in force at the time of the authorization of the implementation plan of the project of this case, does not fall under Article 8(1)1 of the former Enforcement Decree of the Act on the Development Gains Refund Act (amended by Act No. 8974, Mar. 21, 2008). hereinafter “instant project”).

In a case where the Act stipulating the matters concerning the principal authorization and permission provides that the principal authorization and permission is deemed to have been granted under other Acts, it is limited to the case where the principal authorization and permission is granted under other Acts, 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 Decision 2014Du47686, Nov. 24, 2016). In the instant project, it is merely for the purpose of administrative convenience, and it cannot be deemed that the instant project implemented under the former Innovation City Act under other Acts stipulating the relevant authorization and permission is subject to development charges.

Therefore, since the instant project was not specified in the Development Gains Refund Act as subject to the imposition of development charges, the instant disposition was unlawful as it was imposed without any legal basis.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

A) Article 5 (1) 10 of the former Development Gains Refunding Act (amended by Act No. 5285 of Jan. 13, 1997) provides that "a project accompanying a land category change, which is subject to development charges, as prescribed by Presidential Decree." Article 4 (1) [Attachment 1] 10 of the Enforcement Decree of the Act provides that "a project accompanying a land category change" shall be a development project involving a land category change, and Article 3-2 (2) [Attachment 2] of the Enforcement Rule of the Act provides that "a project accompanying a land category change as a result of construction of a building as prescribed by Ordinance of the Ministry of Construction and Transportation." Article 3-2 (2) [Attachment 2] of the Enforcement Rule of the Act provides that the project requiring a land category change shall be separately provided for the type of the building without a physical change in the land category of the building site. Thus, it is interpreted that the purpose of this provision is to recover the land price increase interest arising from the construction of the building site.

B) Article 15(2) of the former Enforcement Decree of the Special Act on the Management of Metropolitan Transport in Metropolitan Areas (amended by Presidential Decree No. 24064, Aug. 22, 2012) (amended by Presidential Decree No. 24064) provides that “Any project prescribed by Presidential Decree” means any project that constructs at least 20 households as one building after obtaining a building permit under Article 8 of the Building Act. In light of the relevant provisions of the Special Act, the term “project that constructs facilities other than housing and 20 households or more as one building after obtaining a building permit under Article 8 of the Building Act” refers to a project that is objectively similar to those under subparagraphs 1 through 5 of Article 11 of the Special Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 24064, Aug. 22, 2012) and Article 15(2) of the Enforcement Decree of the Special Act on the Maintenance and Improvement of Urban Environment Projects (amended by Presidential Decree No. 155000, supra) does not exceed the scope of the construction permit under the Act. 115.

2) Determination

In light of the above legal principles, in full view of the following facts and circumstances, which can be acknowledged by adding the above facts and the statements in the above facts and the evidence Nos. 8 through 10 to the whole purport of the pleadings, even though the project of this case under Article 5 (1) of the Restitution of Development Gains Act and the attached Table of this case does not expressly stipulate the project of this case under the former Innovation City Act, it shall be deemed that the approval and permission of the Housing Site Development Promotion Act, etc. prescribed in the attached Table of this case under the former Innovation City Act is deemed as the housing site development project, etc. subject to the imposition of the development charges, and thus, the disposition of this case shall not

① Article 4(1) of the Enforcement Decree of the Act delegated under Article 5(3) of the Development Gains Refund Act provides for the scope of development projects subject to charges in this case. The attached Table of this case lists the types of projects, and then calls for the relevant applicable law and the name of the relevant project by type of each project. The attached Table of this case includes housing site development projects under the Housing Site Development Promotion Act and development projects accompanied by land category change under the Building Act, but is not indicated in the former Innovation City Act or the project name of this case.

② Article 14(1) of the former Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies (amended by Act No. 8974, Mar. 21, 2008; hereinafter “former Innovation City Act”) that had been in force at the time of approval of the implementation plan of the instant project shall be deemed to have been granted if the Minister of Land, Transport and Maritime Affairs undergoes procedures such as consultation with the head of the relevant administrative agency regarding authorization, permission, etc. prescribed by the Housing Act, the Housing Site Development Promotion Act, the Building Act, etc. while granting approval of the implementation plan for an innovation urban development project with respect to the innovation urban development project.

③ The Minister of Construction and Transportation approved and announced the execution plan of the project of this case through consultation procedures with the head of the relevant administrative agency in accordance with the above provisions in the course of approval of the execution plan of the project of this case. Accordingly, the project of this case is deemed to have obtained relevant approval, such as approval of the project plan under the Housing Act, approval of the implementation plan for the housing site development project under the Housing Site Development Promotion Act, and permission and report under the Building Act. Therefore, in light of the legal principles stated in the above Paragraph (1), housing site development project, etc. under the Housing Site Development Promotion Act shall also be included in the project of this case subject to the application of the attached Table which

④ The legislative purport and purpose of the former Innovation City Act is to facilitate the construction of innovation cities by prescribing necessary matters in order to facilitate the construction of innovation cities to accommodate public institutions, etc. relocating from metropolitan areas to other regions. In other words, in order to smoothly implement innovation urban development projects, the provisions governing the authorization and permission of the relevant Acts and subordinate statutes necessary for innovation urban development projects are stipulated as the approval of implementation plans. Therefore, in the absence of the former Innovation City Act, the project of this case can be seen to be included in the scope of application of the attached Table of this case as a matter of course by individually obtaining authorization and permission in accordance with the relevant Acts and subordinate statutes, such as Housing Site Development Promotion Act. Nevertheless, the mere fact that the former Innovation City Act does not expressly provide for it, it is difficult to deem that the project of this case having the same substance of authorization and permission from the subject of the imposition of

⑤ Upon the amendment of the attached Table of this case on July 14, 2014, the Plaintiff newly established a “non-highness” and stipulated that “if it is deemed that a development project is authorized, etc. under individual Acts and subordinate statutes to be subject to the imposition of charges, it shall be deemed that the development project subject to the imposition of charges is subject to the imposition of charges.” The Plaintiff asserts that prior to the amendment of the attached Table of this case, prior to the amendment of the Enforcement Decree, the development project which obtained authorization, etc. prior to the amendment, is deemed to be subject to the imposition of charges, but is not included in the development project subject to the imposition of charges, but is not included in the development project subject to the imposition of charges. However, upon the amendment of the attached Table of this case, the establishment of the above non-highness is difficult to be considered to be excluded from the imposition of charges by clearly stipulating that the specific project for which the authorization and permission was deemed to be subject to the imposition of new charges, as argued by the Plaintiff, rather than to include the specific project subject to the imposition of charges.

6. Article 10 of the attached Table 10 of the Enforcement Decree of the Building Act provides for "other businesses similar to those referred to in subparagraphs 1 through 8" as the subject of development charges, and provides for "other businesses prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport among businesses similar to those referred to in subparagraphs 1 through 8, which are conducted by the following permission (including reports)." Article 4 (6) of the former Enforcement Rule of the Development Gains Refund Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 108, Jul. 14, 2014) delegated by the above Enforcement Decree provides for "multi-family housing prescribed in subparagraph 2 of attached Table 1 of the Enforcement Decree of the Building Act" in [Attachment 1]. Even if the project in this case is difficult to be included in the subject of development charges specified in the attached Table 1 of the Enforcement Decree of the Building Act, if it includes multi-family housing construction projects in this case, it may be considered

7) Article 48(2) of the Innovation City Act provides that, if necessary, development charges, etc. may be reduced or exempted, as prescribed by the Restitution of Development Gains Act, from the time of the enactment of the Innovation City Act. This can be seen as a legislative provision on the premise that an innovation city development project is subject to development charges from the time of the enactment of the Innovation City Act. This also conforms to the legal

(8) Supreme Court Decision 2014Du47686 Decided November 24, 2016 alleged by the Plaintiff is a judgment on charges for school sites under the Act on Special Cases Concerning the Securing, etc. of School Sites. Article 2 Subparag. 2 Subparag. 2 of the Special Act on the Securing, etc. of School Sites provides, not only the type of development projects subject to the imposition of charges for school sites, but also the limited and urgent interpretation of the relevant laws on the basis of development projects. However, in the case of the Restitution of Development Gains Act, the types of projects subject to the imposition of charges under Article 5(1) are first listed, and the scope of projects subject to the imposition or the similar imposition may be delegated to the Enforcement Decree, so there is a difference in the legal system between the two. Moreover, the charges for school sites under the Special Act on the Securing, etc. of School Sites are imposed on the developer of development projects to bear the relevant expenses for the purpose of securing school sites, and the development charges under the Restitution of Development Gains are imposed in order to appropriately distribute the development gains accrued from land.

9. Development charges under the Development Gains Refund Act are imposed in order to recover the development gains that will be reverted to the operator or landowner of the development project through the execution of the development project or the change of a land-use plan, etc. In the case of the same large-scale development project as the project in this case, the necessity to guarantee the development gains of the project operator is relatively low because the public interest nature that the project operator implements on behalf of the State or a local government is strong, and the development gains accrued from the project in this case are large scale, it can be deemed that the recovery of the development gains accrued from the project in this case as the development charges and the reversion of the development gains to the local government, etc. is more consistent with the perspective of equity or justice. The attached Table clearly states that the innovation city development projects for which the implementation plan was authorized after the amendment will be subject to the development charges after the amendment, as well as the Innovation City Act aims to promote equity between the public and private interests by providing the reduction and exemption provisions of development charges. Therefore, such interpretation can not be deemed as unjust infringement

3. Conclusion

If so, all of the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kim Jong-il (Presiding Justice)

(1) The Restitution of Development Gains Act was amended by Act No. 1245 on January 14, 2014. Article 2 of the Addenda to the said amended Act provides that “The amended provisions of Article 5(1) shall apply from the development project authorized after the enforcement date ( July 15, 2014) pursuant to the main sentence of Article 1 of the Addenda,” and the Enforcement Decree of the Restitution of Development Gains Act amended by Presidential Decree No. 25425 on July 14, 2014 shall be governed by the previous provisions, notwithstanding the amended provisions of attached Table 1, with respect to the development project for which the authorization, etc. was granted before the enforcement of this Decree.” Thus, the previous provisions of the amended Act shall apply to the instant project.

2) The definitions of terms used in this Act are as follows: 1. The term "school site" means land necessary to establish public elementary schools, middle schools, and high schools' teachers (school buildings), sports grounds, training grounds, and other school facilities; 2. The term "development project" means a project to create and develop land for housing construction with a scale of at least 100 households or to build multi-family housing among projects implemented under any of the following Acts: (a) The Building Act; (b) the Urban Development Act; (c) the Housing Act; (f) the Housing Act; (f) the Housing Site Development Promotion Act; (h) the Special Act on the Construction of Multifunctional Administrative City in Yeongju area for Follow-up Measures for New Administrative Capital; (j) the Special Act on the Construction of Multifunctional Administrative City in Yeongju area; (j) the Special Act on the Creation and Development of Innovation Cities; (l) the Special Act on the Development of Free Economic Zones in the Special Act on the Development of Seoul Special Self-Governing Province; or the Special Act on the Development of Seoul Special Self-Governing Province Governor or the Special Self-Governing Province;