[1] Criteria for determining the scope of development project subject to development charges

[2] Where co-owners jointly implement a development project, the criteria for determining the scale of the project

[3] Whether the imposition of development charges, which have defects in deducting the value of the land to be donated, can be deemed null and void as a matter of course (negative)

[1] The scope of the development project subject to the development charges shall be determined on the basis of the area of the land subject to the project, which is authorized by the relevant statutes, regardless of the area of the land attributed to the project executor.

[2] Where several persons jointly implement a specific development project subject to development charges, whether the project is subject to imposition by summing up the entire area shall be determined on an individual basis even if the project scale is below 3,300 square meters. In addition, where co-owners jointly implement a development project for co-owned land, the scale of the project shall be based on the total area, and it shall not be determined based on the area corresponding to the share of each co-owner

[3] Despite the fact that an administrative agency has obtained authorization for the implementation of a development project on condition that the road portion formed by the implementation of the development project will be donated to the administrative agency, the administrative agency erred by calculating the development charges for the development project without deducting the value of the road portion's land as the development costs, but this is merely a misunderstanding of the legal relations or factual relations subject to the imposition of the development charges. Thus, the imposition disposition does not necessarily become void on the ground

[1] Articles 5, 8, and 11 of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993); Articles 4, 5, and 10 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13718, Aug. 25, 1992); 4, 5, and 10 of the former Enforcement Decree of the Restitution of Development Gains Act / [2] Articles 5, 8, and 11 of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993); Articles 4, 5, and 10 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13718, Aug. 25, 1992); Article 15 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13718, Jun. 11, 1993);

[2] Supreme Court Decision 93Nu2037 delivered on December 24, 1993 (Gong1994Sang, 551), Supreme Court Decision 93Nu13728 delivered on April 25, 1995 (Gong1995Sang, 1985) / [3] Supreme Court Decision 84Nu250 delivered on November 12, 1985 (Gong1986, 40) Supreme Court Decision 93Nu16987 delivered on October 12, 1993 (Gong193Ha, 3108), Supreme Court Decision 94Nu5755 delivered on September 9, 1994 (Gong194, 2653)

Plaintiff 1 and three others (Attorney Cho Hong-soo, Counsel for the plaintiff-appellant)

Sungnam City

Seoul High Court Decision 94Gu17750 delivered on June 14, 1995

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the Plaintiffs’ grounds of appeal.

1. On the first ground for appeal

In full view of the provisions of subparagraphs 1, 2, and 4 of Article 2 of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter the same shall apply), and Article 5 of the Act, and Article 4 of the Enforcement Decree of the Act (amended by Presidential Decree No. 13718 of Aug. 25, 1992; hereinafter the same shall apply), the scope of the development project subject to the imposition of development charges (hereinafter referred to as the "charges") shall be determined based on the area of the land subject to the authorization, etc. under the relevant Acts and subordinate statutes, regardless of the area of the land belonging to the developer due to the implementation of the project, regardless of the area of the land belonging to the developer. The judgment below to the same purport is correct, and there is no violation of law

2. On the second ground for appeal

Where several persons jointly implement a specific development project that is subject to charges, whether the project is subject to imposition after adding up the total area thereof shall be determined on an individual basis even if the project scale is below 3,300 square meters. In addition, where co-owners jointly implement a development project for co-owned land, the scale of the project shall be based on the total area, and it shall not be determined based on the area corresponding to the share of each co-owner (see, e.g., Supreme Court Decisions 93Nu2037, Dec. 24, 1993; 93Nu13728, Apr. 25, 1995).

Examining the reasoning of the judgment below in comparison with the records, the court below, based on the macroficial evidence, jointly applied for change of form and quality with respect to the part of 4,425 square meters of land which is part of the land, and recognized the fact that the development project of this case was jointly implemented, and therefore, it is proper to determine that the development project of this case constitutes the business subject to the imposition of charges in accordance with the above legal principles, and there is no error of law of misconception of facts due to violation of the rules of evidence, such as theory of lawsuit, etc

3. On the third ground for appeal

According to the reasoning of the judgment below, the court below determined that the disposition of this case, which included the area (591m2) corresponding to the site subject to charges, among the areas subject to the approval of the execution of the development project of this case and the completion inspection, was legitimate. In light of the records and the relevant statutes, the judgment of the court below as above is proper, and there is no error of law such as misconception of facts or misunderstanding of legal principles as argued in the

4. On the fourth ground for appeal

In calculating charges for the development project of this case, the value of the road portion that the defendant donated to the defendant after the execution of the development project shall be deducted as development costs according to the provisions of Article 8 subparag. 3 and Article 11(1) subparag. 2 of the Act and Article 10(1) subparag. 6 of the Enforcement Decree.

However, according to the records, although the plaintiffs obtained the authorization of the execution of the development project on condition that the road portion created by the implementation of the development project of this case will be donated to the defendant, the defendant erred in calculating the charges for the development project of this case without deducting the value of the above part of the land as development costs, but this is merely a mistake in the legal relations or factual relations with the subject of the charges, so the disposition of this case's imposition of the charges of this case does not necessarily become null and void, on the ground that the above defects exist in the disposition of imposition of the charges of this case. The judgment below to the same purport is justified,

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

Justices Chocheon-sung (Presiding Justice)