(a) Whether the land on which a third party's building is constructed without permission falls under Article 20 (1) 3 of the Act on the Ownership of Housing Site; and

(b) Requirements for exclusion from the imposition of charges on excessive ownership of housing lots for reasons of restrictions on permission under the provisions of Article 12 of the Building Act;

A. In light of the provisions of Articles 2, 7, 19 subparag. 1, and 20(1)3 and 8 of the Act on the Ownership of Housing Sites, and Articles 3 and 26(1) of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882, May 10, 193), an unauthorized building owned by a third party is constructed on the land subject to the imposition of excess ownership charges, and there is difficulty in removing the building due to the owner’s deafity or intimidation, etc. of the building, solely on the ground that the building owner or tenant’s difficulty in removing the building, it cannot be deemed that “the site is impossible to construct a de facto” excluded from the imposition of excess ownership charges under the latter part of Article 20(1)3 of the Act on the Ownership of Housing Sites.

B. In full view of the purport of Article 20(1)3 and 8 of the Act on the Ownership of Housing Sites, and Article 21-2 of the Enforcement Decree of the former Act on the Ownership of Housing Sites, the restriction on construction permission pursuant to Article 12 of the Building Act does not completely prohibit the construction of housing, and thus, it cannot be deemed that the construction of housing is prohibited pursuant to the relevant Acts and subordinate statutes. However, it can be excluded from the subject of imposition of excess ownership charges because the period of the duty of use and development is extended as long as the period of restriction is extended or it is de facto impossible to construct, and as such, it can be excluded from the subject of imposition of the building permission pursuant to the Building Act.

(a) Article 20(1)3(a) of the Act on the Ownership of Housing Sites; Articles 2, 7, and 19 subparag. 1 of the same Act; Articles 3 and 26(1)2 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882, May 10, 193); Article 12 of the Building Act; Article 21-2 of the Enforcement Decree of the former Act on the Ownership of Housing Sites

Supreme Court Decision 93Nu15878 delivered on December 14, 1993 (Gong1994Sang, 384) 93Nu2071 delivered on April 26, 1994 (Gong1994Sang, 1514) 93Nu20320 delivered on May 13, 1994 (Gong1994Sang, 1722) 94Nu7683 delivered on December 9, 1994 (Gong195Sang, 505Sang, 505) 94Nu7805 delivered on December 23, 1994 (Gong195Sang, 697)

Plaintiff 1 et al., Counsel for the defendant-appellant

Attorney Kim Chang-chul, Counsel for the defendant-appellant

Seoul High Court Decision 93Gu27484 delivered on May 24, 1995

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. On the first ground for appeal

In light of the provisions of Article 2 of the Act on Ownership of Housing Sites (hereinafter referred to as the “Act”), Article 3 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 1382, May 10, 1993; hereinafter referred to as the “Enforcement Decree”), which was enforced at the time of imposition of charges for excess ownership (hereinafter referred to as “charges”), Articles 7, 19 subparag. 1 and 20(1)3 and 8 of the same Act, and Article 26(1) of the Enforcement Decree of the same Act, etc., the court below’s determination that the land without permission owned by a third party was constructed on the land subject to the imposition of charges and the owner or tenant’s difficulty in removing the building cannot be deemed to constitute “unauthorized building site” under the latter part of Article 20(1) subparag. 3 of the same Act, and there is no error in the misapprehension of the legal principles as to the removal of the building site, which is a co-owner of the land without permission, 93Nu197.29,7.198.

2. On the second ground for appeal

In full view of the purport of Article 20(1)3 and 8 of the Act, Article 21-2 of the Enforcement Decree of the Building Act, etc., a housing site for which it is impossible to construct according to the intention of the owner of the relevant housing site due to the restriction on construction permission under Article 12 of the Building Act shall not be deemed prohibited by the relevant Acts and subordinate statutes, since housing construction is not completely prohibited. However, it shall be deemed that a housing site may be excluded from the subject of imposition because its use and development obligation period is extended or its construction is de facto impossible as long as the restriction period is extended or its construction is de facto impossible. As such, in order to be excluded from the subject of imposition of charges, even though it is not necessarily required to apply for construction permission under the Building Act, it shall be specifically recognized that construction permission cannot be constructed due to the restriction on construction permission (see Supreme Court Decision 94Nu7805, Dec. 23, 1994).

However, according to the records, the Minister of Construction and Transportation has restricted a building permit for more than a certain size in the city of Seoul Special Metropolitan City, etc., which is the location of the land of this case, by extending the period of restriction of business facilities (excluding public business facilities) and neighborhood living facilities (not less than 200 square meters) from March 31, 1992 to June 30, 192, as part of the construction competition appeal measure against the Seoul Metropolitan area and a city with a population of not less than 300,000,000 as part of the construction competition appeal measure. However, the plaintiffs are not able to say that the above restriction period of the land of this case as well as at the time of the imposition of the charges of this case, and it is not possible to find out the facts that the above non-party, which is the circumstance pointed out in the ground of appeal, did not go against the legal principles as to the imposition of the charges of this case, and thus, it cannot be viewed that the plaintiffs' acts were not subject to the imposition of the charges of this case.

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

Justices Park Jong-chul (Presiding Justice)