[1] The meaning of "the prohibition or restriction of use under the provisions of the Act" under Article 23 subparagraph 1 of the Enforcement Decree of the former Land Excess Gains Tax Act

[2] Whether a partial restriction on construction permission under Article 44 (2) of the former Building Act constitutes a restriction on use under the above [1] (affirmative), and the relationship between Article 23 (1) and Article 23 (3) proviso of the former Enforcement Decree of the Land Excess Profit Tax Act

[1] Article 8 (3) of the Land Excess Profit Tax Act and Article 23 (1) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) include not only the cases where the use of land is prohibited or restricted directly by the provisions of the law itself, but also the cases where the use of land is prohibited or restricted by the administrative agency as part of its administrative action on the basis of the general authority conferred by the authority for prohibition and restriction of use as provided by the law or by the administrative organization.

[2] If the Minister of Construction and Transportation has taken a measure to restrict the construction permission for the land after acquiring the land for the purpose of constructing a new building under the provisions of Article 44 (2) of the former Building Act (amended by Act No. 4381 of May 31, 191), the person who applied for the construction permission under the proviso of Article 23 (3) of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by the Presidential Decree No. 14470 of December 31, 1994), regardless of whether the land constitutes the "land which cannot be constructed in accordance with the above construction permission restriction" within one year from the date of acquisition, it constitutes "a case where the use of the land is prohibited or restricted under the provisions of subparagraph 1 of Article 23 of the Enforcement Decree," and thus, it does not constitute a case of idle land under Article 8 (3) of the Land Excess Gains Tax Act.

[1] Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 194) / [2] Article 44(2) of the former Building Act (amended by Presidential Decree No. 4381 of May 31, 1991) (see current Article 12); Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1 and 3 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994)

[1] Supreme Court Decision 93Nu1893 delivered on January 11, 1994, Supreme Court Decision 93Nu2995 delivered on January 25, 1994 (Gong1994Sang, 848) Supreme Court Decision 93Nu2995 delivered on January 25, 1994 (Gong1994Sang, 848), Supreme Court Decision 93Nu17591 delivered on March 25, 1994 (Gong1994Sang, 1367), Supreme Court Decision 93Nu2326 delivered on October 11, 1994 (Gong1994Ha, 3013) and Supreme Court Decision 95Nu2339 delivered on January 23, 1996 (Gong194, 194Sang, 194; Supreme Court Decision 97Nu19394 delivered on September 23, 199)

Plaintiff (Attorney Kim Si-hwan, Counsel for the plaintiff-appellant)

Head of Suwon Tax Office

Seoul High Court Decision 94Gu7760 delivered on January 9, 1996

The part of the lower judgment against the Plaintiff is reversed and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the plaintiff purchased the land of this case from the non-party Korea Land Development Corporation on October 24, 198 under the condition that it will build business or commercial facilities within three years from the contract date for the purpose of constructing neighborhood living facilities on the ground, and started the preparation for the construction of neighborhood living facilities on March 191, 191, but the Minister of Construction and Transportation suspended the construction on May 31, 1991 under the former Building Act (amended by Act No. 4381, May 31, 1991; hereinafter the same shall apply) for the purpose of 98.3 years from May 6, 1991 to March 31, 1992 by 9.4 years from the construction of the above land for the purpose of 198.3 years from the construction permit of this case to the end of 198.4 years from the construction permit of this case (the construction permit of this case to the end of 198.4 years from the construction permit of this case).

However, Article 8 (3) of the Land Excess Profit Tax Act and Article 23 (1) of the Enforcement Decree of the Act include not only the prohibition or restriction of the direct use of the land by itself, but also the cases where the use of the land is prohibited or restricted as a part of the administrative action based on the authority granted by the administrative agency concerning the prohibition or restriction of the use under the Acts and subordinate statutes or the general authority granted by the administrative organization, and therefore, it does not include the cases where the use of the land is restricted or prohibited (see Supreme Court Decisions 93Nu1893 delivered on January 11, 1994; 93Nu295 delivered on January 25, 1994, etc.). Thus, if the land for the purpose of constructing a new building was acquired, and there was a restriction of the construction permission by the Minister of Construction and Transportation under the provisions of Article 44 (2) of the former Building Act, the above land constitutes a restriction of the construction permission under the provisions of Article 23 (3) of the Enforcement Decree of the Building Act within 1 year.

Nevertheless, the court below erred by misapprehending the legal principles on "the prohibition or restriction of use in accordance with the provisions of the Act, one of the requirements for determining idle land," that the restriction on construction due to the above restriction on construction by the Minister of Construction and Transportation cannot be deemed as falling under the case of prohibition or restriction of use in accordance with the provisions of the Act, Article 23 (1) of the Enforcement Decree. The ground of appeal pointing this out has merit.

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)