Whether the obligation to pay farmland creation cost is exempted where farmland is diverted as part of development activities under a village development plan established and implemented by the Gu Act on the Utilization and Management of the National Territory (negative)

Article 27 (1) 1 of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of Aug. 5, 1993) is a special-purpose area under the plan for utilization of the national territory under the same Act, which had already been consulted with the Minister of Construction and Transportation and the Minister of Agriculture, Forestry and Fisheries at the time of the designation of a village area. Thus, a person who intends to divert farmland as a development act according to a village development plan established and implemented pursuant to Article 14-2 (1) 2 of the former Act shall not be deemed to have been satisfied by filing a report pursuant to Articles 4 (1) and 5 of the former Act on the Preservation and Utilization of Farmland (repealed by the Farmland Act, Act No. 4817 of Dec. 22, 1994) without permission or consultation with the Minister of Agriculture, Forestry and Fisheries, and Article 27 (3) of the former Act on the Utilization and Management of the National Territory.

Articles 2, 4, and 5 of the former Farmland Preservation and Utilization Act (repealed by the Farmland Act, Act No. 4817 of December 22, 1994), Articles 14-2(1)2, and 27 of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of August 5, 1993)

New U.S. Construction Co., Ltd. (Attorney Lee Chang-chul, Counsel for defendant-appellee)

The Rural Development Corporation (Attorney Kim Jae-chul et al., Counsel for defendant-appellee)

Seoul High Court Decision 93Gu30077 delivered on July 14, 1995

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

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first ground for appeal

According to Article 27 (1) 1 of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of Aug. 5, 1993; hereinafter the same shall apply), with respect to development activities conducted within a village area determined and publicly notified pursuant to Article 7 and Article 8-2 (1) 2 of the same Act, the former Act on the Preservation and Utilization of Farmland (amended by Act No. 4572 of Aug. 5, 1993; hereinafter the same shall apply) is referred to as the "farmland Preservation Act". Since Article 4 and Article 5 are not applicable to the farmland development activities conducted within a village area designated and publicly notified by the Minister of Construction and Transportation pursuant to Article 14-2 (1) 2 of the same Act, the Minister of Construction and Transportation shall establish a plan for the improvement of the land use of the relevant village area to the extent that the provisions of Article 27 (3) of the former Act on the Preservation and Management of Agricultural, Fisheries and the head of the relevant local government shall not apply to the same Act.

According to the facts established by the court below, the plaintiff is the owner of three lots of land, such as 17,865 square meters, located within the village area, which is farmland located in the Gyeonggi-gun, Yang-gun, Yangcheon-gun, Seoul, which was designated through consultation with the Minister of Construction and Transportation and the Minister of Agriculture and Fisheries, for the purpose of creating a site for apartment construction in accordance with a village development plan established and implemented pursuant to Article 14-2 (1) 2 of the Act on the Utilization and Management of the National Territory, and the head of Yangju-gun, for the purpose of creating a site for apartment construction, the plaintiff reported the development activities in the village area to the head of Yangju-Gun on December 23, 192 and was repaired on January 29, 193. The plaintiff is not required to obtain permission for diversion of farmland under Article 27 (1) of the Act on the Utilization and Management of the National Territory, and the plaintiff is not obliged to pay the farmland creation charges and the diversion charges under Article 4 (4) of the Farmland Conservation Act on the premise of this.

2. On the second and third grounds for appeal

In light of related laws and records, the court below is just in holding that the land of this case constitutes farmland subject to farmland creation cost under the Farmland Preservation Act and farmland subject to exclusive charges under the former Act on the Special Measures for Development of Agricultural and Fishing Villages, and there is no error of law such as theory of lawsuit or violation of the rules of evidence.

In addition, the court below is just in holding that the exclusive charge of this case was properly calculated and imposed on the basis of the officially announced value at the time of diversion pursuant to the provisions of the former Act on the Special Measures for Development of Agricultural and Fishing Villages and the Farmland Conservation Act, and that there was no illegality of deviation from or abuse of discretion on the differential imposition of the exclusive charge under Article 45-2 (2) of the Act on the Special Measures for Development of Agricultural and Fishing Villages, and there is no error of law as to incomplete deliberation or abuse of

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

Justices Cho Chang-tae (Presiding Justice)