Plaintiff 1 and 12 others (Law Firm Young-jin, Attorneys Kang Yong-ki et al., Counsel for the plaintiff-appellant)

Human Resources Development Service of Korea (Law Firm Doll, Attorney Kim Gyeong-min, Counsel for defendant-appellant)

April 20, 2006

Seoul Administrative Court Decision 2004Guhap4017 decided May 13, 2005

1. All appeals filed by the plaintiffs are dismissed.

2. The appeal costs are assessed against the plaintiffs.

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of failing to pass the 14th licensed real estate agent qualification examination against the plaintiffs on November 6, 2003 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The court's reasoning for this case is that the "private ownership" of No. 14 of the first instance court's decision No. 27 is "ownership", "No. 82 (87) of the real estate law" of No. 31 is "No. 9) and "No. 82 (No. 87) of the real estate law" of No. 31 is "No. 82 (B-type 87)", and the "le" of No. 41 is "Delegation". The plaintiff limited the road of No. 27 of the above family problem answer to the road under the Road Act, even if the plaintiff interpreted the road of this case to the road under the "Public-Private Partnerships Act" of the Act on Public-Private Partnerships in Infrastructure, but the term "lease" of the plaintiffs is newly appearing in the court as "No. 2005, Jan. 27, 2005, the court did not have any further argument as to the "Public-Private Partnerships Act" of this case as amended by Act No. 27301 of this case's.

【Additional Part】

(1) No. A-type 77 (B-type 76) of the Real Estate Act and the Real Estate-Related Tax Act;

(A) The issue and the defendant's answer

(1) In the case of acquiring an asset through auction, the date when the auction is fully paid the auction price under the conditions of sale shall be the date when the auction is paid in full. (2) In the case of receiving a price in a bill, it shall be the date when the bill is actually paid instead of the date when the bill is paid. (3) In the case of acquiring an asset not completed, if the price of the asset is fully paid, the date when the bill is actually paid in full, shall be deemed the date when the payment is made in full.

Defendant’s Answer: 4

(B) The plaintiffs' assertion

(1) The answer to the above problem (4) is completely different from the erroneous misunderstanding of Article 162 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127 of Nov. 20, 2003; hereinafter “Enforcement Decree of the Income Tax Act”). According to Article 162 (1) of the same Act, the answer does not include the above 4-mentioned content.

(2) The above question is as follows: (5) No explanation is given to the increase of the area of the right due to the change of the replotting plan, etc., and the time of acquisition of the portion that was received in excess of the size of the right, and it is clear.

(3) Therefore, all of the plaintiffs must respond to the above issue.

(C) Determination

(1) Relevant statutes

Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127 of Nov. 20, 2003)

Article 162 (Time of Transfer or Acquisition)

(1) The time of acquisition and transfer under Article 98 of the Act shall, except in the following cases, be the date of liquidation of the price of the relevant asset (in case where the transferee has agreed to pay the capital gains tax and the additional tax of capital gains tax on the transfer of relevant asset, excluding the relevant capital gains tax and the additional tax of capital gains tax).

(2) Where assets are transferred or acquired, and the object is not completed or finalized by the date of liquidation of the price of the assets, the date on which the object is completed or finalized shall be deemed the date of such transfer or acquisition.

(3) The time of acquiring land acquired through a replotting disposition under the Urban Development Act or other Acts shall be the time of acquiring land prior to replotting: Provided, That in cases where the area of land acquired is increased or decreased than the area of right acquired through a replotting disposition, the time of acquisition or transfer of such increased or decreased area of land shall be the day following the date when a replotting disposition is publicly announced.

(2) Determination

A) 4 Determination as to the answer

In the disposition of transfer income tax, the acquisition time and transfer time of assets are prescribed in the Enforcement Decree of the Income Tax Act by delegation of Article 98 of the Income Tax Act, and according to Article 162 (1) of the Enforcement Decree of the Income Tax Act, the basic acquisition time and transfer time of assets are the date of liquidation of the price of assets.

However, according to Article 162 (2) of the Enforcement Decree of the Income Tax Act, where assets which have not been completed exceptionally are transferred or acquired, and the object is not completed by the date of liquidation of the price of the assets, the date of completion shall be deemed to be the date of the transfer or acquisition, and the above answer clause is contrary to the provisions of Article 162 (2) of the Enforcement Decree of the Income Tax Act.

Therefore, the answer clause 4 does not cause an issue of special interpretation, and it does not cause an average examinee to understand the meaning of the answer clause and choose the answer clause.

5) Determination as to the answer

In general, if the ownership of a specific land is changed by a replotting disposition, it shall not be deemed a transfer of the old land or an exchange with the new land. Therefore, if a new land is transferred after a replotting disposition, the time of acquisition shall be deemed the time of acquisition of the old land, but there may be cases where the area of the land delivered in the process of a replotting disposition increases or decreases above the area of the old land. In such cases, the proviso of Article 162(3) of the

⑤ In the case of the answer above, although the substitute lot area may increase more than the area of the right in the disposition of replotting, the area of the right itself cannot increase, the above answer paragraph is somewhat inappropriate. However, in light of the overall purpose, it can be sufficiently inferred that the increased area is about the matter in question.

Therefore, the answer clause is summarized almost the same as the proviso of Article 162 (3) of the Enforcement Decree of the Income Tax Act, and does not cause any special interpretation problem, and even considering some inappropriate expressions, the average examinee does not have to understand its meaning and choose the answer clause.

(D) Sub-committee

If so, the answer to this issue is the only one answer. Therefore, this part of the plaintiffs' assertion is without merit.

(2) Type A of Real Estate Law No. 81 (B-84)

(A) The issue and the defendant's answer

(1) Any objection, administrative appeal, or administrative litigation against all acts under the National Land Planning and Utilization Act and subordinate statutes included in the main sentence of this Article is a principle that no administrative litigation may be instituted against the designation of a land transaction permission area. <2> Any objection may be filed within one month in cases where a non-permission disposition is granted against a land transaction permission. <3> Where an objection is filed against a refusal to grant a land transaction permission, an administrative appeal, or administrative litigation may be filed against the deliberation itself of the Si/Gun/Gu urban planning committee.

Defendant’s Answer: 4

(B) The plaintiffs' assertion

(1) The designation of land transaction permission area under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) constitutes a disposition by an administrative agency that regulates individual rights or legal interests of a specific individual individually and specifically, and thus, an appeal litigation can be filed in principle. The above answer clause (1) is a molding content.

(2) The answer above (4) also is a framework in light of the provisions of Article 120 of the National Land Planning and Utilization Act.

(3) Therefore, Plaintiff 1, 2, 3, 5, 6, 10, 11, and 13 must be addressed with respect to the above issue. In addition, there is an error of determination of the Defendant’s answer, not the answer, in the Defendant’s setting and grading process, as such, all answers must be addressed.

(C) Determination

1) Relevant statutes

National Land Planning and Utilization Act (amended by Act No. 7016 of Dec. 30, 2003)

Article 118 (Permission for Land Transaction Contracts)

(1) Parties intending to enter into a contract (including any reservation; hereinafter referred to as "land transaction contract") on the transfer or establishment (limited to the transfer or creation in return for a consideration) of the ownership or superficies (including the right aimed at acquiring the ownership or superficies) with respect to the land located within a permitted area shall jointly obtain permission from the head of a Si/Gun/Gu, as prescribed by Presidential Decree. The same shall also apply to any modification to permitted matters

(4) The head of a Si/Gun/Gu shall, upon receipt of an application for permission under the provisions of paragraph (3), take a disposition of permission or nonpermission within 15 days from the date on which such application for permission is received, and deliver a permit to the relevant applicant or notify the relevant applicant of the grounds for non-permission in writing: Provided, That when the procedures for prior sale consultation are in progress pursuant to the provisions of Article 122,

(6) No land transaction contract that is concluded without obtaining permission provided for in the provisions of paragraph (1) shall take effect.

Article 120 (Raising of Objection)

(1) A person who has an objection against a disposition under Article 118 may file an objection with the head of the competent Si/Gun/Gu within one month from the date he/she is subject to such disposition.

(2) The head of a Si/Gun/Gu who receives an objection under paragraph (1) shall notify the claimant of the result after deliberation by the Si/Gun/Gu urban planning committee.

A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won (in cases of a person falling under subparagraph 6, an amount equivalent to 30/100 of the relevant land price based on the officially assessed individual land price as at the time of concluding the contract).

6. Person who has entered into a land transaction contract without obtaining permission or a modified permission provided for in the provisions of Article 118 (1), or obtained permission for a land transaction contract by falsity and other illegal means.

2) Determination

(1) Judgment on this issue

The National Land Planning and Utilization Act is an administrative regulatory law, and is subject to the planning law. Therefore, the plan for the operation and enforcement of this Act is essential and the designation of land transaction permission area should also be deemed as one of such plans. However, as such designation itself cannot be deemed as having a direct relationship with the specific rights, obligations, or legal interests of the people, it is difficult to say that the plan itself can, in principle, institute an administrative litigation against such plan, unless there is any defect in the process or procedure for the formulation of such plans.

In addition, as long as the defendant clearly stated that the designation of land transaction permission area in the above answer No. 1 can be subject to administrative litigation exceptionally, the defendant used the expression to the extent necessary to prevent the confusion of the examinee in the objective test in order to prevent the confusion of the examinee.

Therefore, the answer clause 1 does not cause an issue of special interpretation, and it does not cause an average examinee to understand its meaning and choose the answer clause.

(2) Judgment on this issue

Where an objection is filed against a rejection disposition of land transaction permission, the head of a Si/Gun/Gu in receipt of such objection shall notify the claimant of the result after deliberation by the Si/Gun/Gu urban planning committee. Thus, the subject matter of administrative appeal and administrative litigation shall be deemed not the result of deliberation by the Si/Gun/Gu urban planning committee, and the subject matter of the above answer is a description contrary to Article 120 of the National Land Planning and Utilization Act.

Therefore, the answer clause 4 does not cause an issue of special interpretation, and it does not cause an average examinee to understand the meaning of the answer clause and choose the answer clause.

(D) Sub-committee

If so, the answer to this issue is the only one answer. Therefore, the plaintiffs' assertion on this part is without merit.

2. Conclusion

Therefore, the judgment of the court of first instance is justified, and all appeals by the plaintiffs are dismissed. It is so decided as per Disposition.

【Attachment List of Plaintiffs】

Judges Kim Yong-sung (Presiding Judge) Jin-sung (Presiding Judge)