The standards for determining the scale subject to the imposition of development charges under Article 4 (1) of the Enforcement Decree of the Restitution of Development Gains Act where a building has been constructed over several parcels of land, and only some parcels of land has been actually or a change of land category has been made on the public register.

Article 4(1) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 19752, Dec. 15, 2006)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Sejong District Court Decision 201Na1448 decided May 1, 201

The head of Mapo-gu Seoul Metropolitan Government (Law Firm Min & Kim, Attorneys Kim Yong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2007Nu4546 decided Oct. 16, 2007

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

The grounds of appeal are examined.

Article 5 (1) 10 of the Restitution of Development Gains Act provides that "a project which requires a land category change and which is prescribed by Presidential Decree" as one of the development projects subject to the imposition of development charges. Article 4 [Attachment Table 1] subparagraph 9 of the Enforcement Decree of the Act provides that "a project involving a land category change as a result of the construction of a building prescribed by Ordinance of the Ministry of Construction and Transportation, or a project involving a land category change on the public register," and Article 4 (1) 1 of the Enforcement Decree provides that the scale of a project is at least 60 square meters in the case of a project implemented in an area located within an urban planning zone among the Special Metropolitan City areas. In the event that there are several lots of land-related construction projects and a land category change on the public register actually or in part is made, it is reasonable to determine the scale subject to development charges under Article 4 (1) of the Enforcement Decree of the Act only on the basis of the area of the land in question (see Supreme Court Decision 98Du17326, Jul. 23,

Based on its employment evidence, on December 23, 2002, the lower court recognized on May 25, 2002 that the Plaintiff obtained approval for the use of the building of this case from the Defendant on the land of 2,217 square meters in total, including 153-5 square meters, 153-5 square meters and 887 square meters, 157-1 square meters and 276-14 square meters and 21 square meters, which is a general residential area (hereinafter “instant land”), among the urban planning zones, and recognized that the Plaintiff obtained approval for the use of the building of this case from the Defendant on May 25, 2005, the land category of this case is not only the land of this case, but also the land category of which is less than 301 square meters and the land category of which is less than 660-14 square meters and it does not constitute the subject of approval for use of the building of this case on the land of this case.

Nevertheless, the court below determined that the imposition of the development charges of this case is legitimate in different opinions. The court below erred by misapprehending the legal principles on the subject of the development charges, which affected the conclusion of the judgment. The ground of appeal is with merit.

Therefore, 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 Park Si-hwan (Presiding Justice)