[1] Where the approval of a project plan is revoked pursuant to Article 23 (1) of the former Support for Small and Medium Enterprise Establishment Act, whether the permission for conversion of farmland, which is deemed to have been revoked pursuant to Article 22 (1) 11 of the same Act, is also revoked (affirmative), and whether the disposition for imposition of farmland creation cost and the disposition for imposition of exclusive charges, which were originally effective due to revocation of the approval of a project plan and the cancellation of the constructive permission for conversion of farmland,

[2] Whether a claim for repayment becomes final and conclusive only when a person liable to refund the farmland creation cost, the amount of diversion charge, or the amount of refund erroneously paid or refunded (=the State) and Article 56(1) and (2) of the former Enforcement Decree of the Farmland Act, and Article 52-8(1) of the former Enforcement Decree of the Act on Special Measures for Development of Agricultural and Fishing Villages, or a decision on refund

[1] Article 4 (see current Articles 34 and 38 of the Farmland Act), Article 45-2 (1) 1 of the former Enforcement Decree of the Act on Special Measures for Development of Agricultural and Fishing Villages (amended by Act No. 4817, Dec. 22, 1994); Article 22 (1) 11 of the former Act on Assistance for Small and Medium Enterprise Establishment (amended by Act No. 5453, Dec. 13, 1997) (see current Article 35 (1) 9), Article 23 (1) (see current Article 37 (1)) of the former Enforcement Decree of the Act on Special Measures for Development of Agricultural and Fishing Villages; Article 58 (1) of the former Enforcement Decree of the Farmland Act (amended by Act No. 4572, Aug. 5, 1993); Article 45-2 (1) 1 of the former Enforcement Decree of the Act on Special Measures for Development of Agricultural and Fishing Villages; Article 98 (2) of the former Enforcement Decree of the Agricultural and Fishing Villages Act (amended by Presidential Decree No. 97)

[2] Supreme Court Decision 2004Da1028 decided Jun. 30, 2006 (Gong2006Ha, 1417)

Seoul Steel Industry Co., Ltd.

Korea

Busan High Court Decision 2007Na13268 Decided January 30, 2008

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. According to Article 4 of the former Conservation and Utilization of Farmland Act (amended by Act No. 4572 of Aug. 5, 1993, repeal by Article 2 of the Addenda of the Farmland Act (Act No. 4817 of Dec. 22, 1994, hereinafter “former Farmland Preservation Act”), a person who intends to divert farmland shall, in principle, obtain permission from the Minister of Agriculture and Forestry (paragraph (1)), the competent Minister (including the head of the relevant affiliated agency or the head of the local government who has been delegated with the authority by the competent Minister) shall consult with the Minister of Agriculture and Forestry in cases where farmland is included in the district concerned (paragraph (2)), a person who intends to obtain permission to divert farmland under paragraph (1) of this Article, a person who intends to divert farmland after consultation under paragraph (2) of this Article, and a person who intends to divert farmland shall pay the farmland equivalent to the farmland development charges (hereinafter referred to as “agricultural and fishing village development charges”) to a person who intends to divert farmland under paragraph (1) 4 of the former Act.

Meanwhile, according to Article 22(1)11 of the former Support for Small and Medium Enterprise Establishment Act (wholly amended by Act No. 5453, Dec. 13, 1997; hereinafter “former Support for Small and Medium Enterprises Act”), where a founder obtains approval of a business plan under Article 21, he/she shall be deemed to have obtained permission to divert farmland under Article 4 of the former Farmland Conservation Act. Article 23(1) of the same Act provides that where it is deemed difficult to expect the effect of approval of a business plan due to the reasons prescribed by the Presidential Decree, such as where a person who has obtained approval of a business plan runs a business clearly different from the details of approval of the business plan, he/she may cancel approval of a business plan and permission to build a factory under the conditions as prescribed by the Presidential Decree. Article 28(1) of the former Enforcement Decree of the Small and Medium Enterprise Establishment Support Act (wholly amended by the Presidential Decree No. 16806, May 10, 200) provides that a factory site shall be leased to a person for another purpose than 1 year (3 years).

According to the above related Acts and subordinate statutes, if the approval of a project plan is revoked pursuant to Article 23(1) of the former Small and Medium Enterprise Support Act, permission for conversion of farmland deemed as approval of a project plan shall also be revoked. However, the revocation of the approval of a project plan and the permission for conversion of farmland deemed as above shall only lose its effect in the future, and thereby, the disposition for imposition of farmland creation cost and the disposition for imposition of exclusive charges, which were initially effective,

B. Nevertheless, the court below found that the approval of a project plan was revoked under Article 23(1) of the former Small and Medium Enterprise Support Act and the permission for conversion of farmland was revoked under Article 22(1)11 of the same Act and the ground for imposing the farmland creation cost and the exclusive use charges of this case was extinguished along with the revocation of the permission for conversion of farmland under Article 22(1)11 of the same Act, and held that the defendant has a duty to return unjust enrichment equivalent to each of the farmland creation cost and the exclusive use charges of this case to the plaintiff. Thus, the court below erred in the misapprehension of legal principles as to the imposition of farmland creation cost and the validity of imposition of the exclusive use charges due to the revocation of approval of a project plan under Article 23(1) of the former Act

Furthermore, according to the reasoning of the judgment below and the record, the plaintiff, around 191, 191, was 10, 30 m2 of the former Act on the Utilization and Management of the Agricultural and Fishing Villages (amended by Act No. 4572, Aug. 5, 1993; Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 655, Feb. 4, 200; hereinafter referred to as the "former Act") with the specific use area of 14,380 m2 (hereinafter referred to as "one piece of land of this case") of 94,380 m2 of the former Act, which was 196 m2 of the 196 m2 of the farmland development plan of this case, and the plaintiff was 94,60 m2 of the farmland development plan of this case for the above m2 of the 196 m2 of the farmland development plan. The plaintiff was not 96 m2 of the former Act on the land development plan.

2. As to the third ground for appeal

A. Article 40(1) of the former Enforcement Decree of the Farmland Act (amended by Act No. 6597, Jan. 14, 2002; hereinafter referred to as the "former Farmland Act") provides that the farmland creation cost shall be paid to the person who operates and manages the farmland management fund, and Articles 27 and 32(1) of the former Enforcement Decree of the Farmland Promotion Corporation and Farmland Management Fund (amended by Act No. 5153, Aug. 8, 1996) provide that the Government shall establish the Farmland Management Fund and operate and manage it to the Minister of Agriculture and Fisheries, and Article 45-2(5) of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 5758, Feb. 5, 199; hereinafter the same shall apply) shall not be the State to whom the farmland creation cost belongs, but shall be refunded to the person who has already been determined by the Act No. 2516, Dec. 16, 196>

B. In the same purport, the court below is just in holding that the plaintiff, who was the payer without relation to the decision of refund or the advance payment of refund at the competent authority, may claim the defendant for refund of unjust enrichment, and there is no error in the misapprehension of legal principles as to the procedure for refund of farmland creation cost under the former Farmland Act as stated in the ground of appeal on this part. The Supreme Court precedents cited by the defendant in the ground of appeal are inappropriate to be invoked in this case, unlike this case

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)