Korea International Trade Association and 3 others (Law Firm Rate, Attorney Seo-bong, Counsel for the defendant-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Attorney Kim Chang-ho et al., Counsel for the defendant-appellant

April 8, 2005

Seoul Administrative Court Decision 2002Guhap40521 delivered on January 14, 2004

1. Of the judgment of the court of first instance, the part against which the plaintiffs lost shall be revoked as follows.

Defendant:

A. The portion of the charges for causing traffic congestion imposed on the Plaintiff, an incorporated Korea International Trade Association on September 6, 2002 in excess of 68,732,617 won in the imposition of the charges for causing traffic congestion in excess of 105,831,490 won;

B. As to Sep. 6, 2002, the plaintiff Han Convention Co., Ltd.

(1) the portion exceeding KRW 16,057,136 of the imposition of charges for causing traffic congestion to hotel off and bed on board a hotel, whichever is more than KRW 26,520,080;

(2) the portion which exceeds KRW 13,220,813 in the disposition of imposing charges for causing traffic congestion on the convention officer;

C. The portion in excess of 26,159,461 won among the imposition of traffic inducement charges of KRW 40,101,650 on September 6, 2002 against the Plaintiff’s city air terminal corporation;

D. The portion exceeding 57,55,337 won among the disposition of imposition of traffic inducement charges of KRW 88,230,560 on September 8, 2002, which was imposed on the Plaintiff Han-development Co., Ltd.

Each cancellation shall be revoked.

2. The plaintiffs' remaining appeals are dismissed.

3. The total costs of the lawsuit are three-minutes, and 2 are assessed against the plaintiffs, and the remainder is assessed against the defendant.

1. Purport of claim

(1) On September 6, 2002, the Defendant imposed on the Plaintiff, an incorporated Korea International Trade Association the traffic inducement charges of KRW 10,583,149 in excess of KRW 105,831,49 in the imposition of KRW 105,83,140 in the imposition of KRW 626,065,080 in the imposition of KRW 626,726,148 in the imposition of the traffic inducement charges of KRW 326,726,148 in the imposition of KRW 626,00 in the above imposition of KRW 26,520,08 in the above imposition of KRW 2,652,00 in the above imposition of KRW 20,267,100 in the above imposition of KRW 20,726,780 in the above imposition of the traffic inducement charges of KRW 86,40 in the above imposition of the traffic inducement charges of KRW 86,520 in the above imposition of the Plaintiff

2. Purport of appeal

The part of the judgment of the court of first instance that ruled against the plaintiffs who seek cancellation below shall be revoked.

(1) On September 6, 2002, in excess of 10,583,149 won of the charges for causing traffic congestion to the Plaintiff, an incorporated Korea International Trade Association (the Plaintiff, an incorporated Korea International Trade Association did not appeal to the imposition of charges for causing traffic congestion to the Ko X-CK), and (2) on September 6, 2002, the charges for causing traffic congestion to the Plaintiff Han-CF Co., Ltd. in excess of 26,652,08 won of the charges for causing traffic congestion to the hotel office, (2) on September 6, 2002, in excess of 26,520,00 won of the charges for causing traffic congestion to the hotel office, (3) the charges for imposing traffic congestion to the Plaintiff, an incorporated Korea International Trade Association in excess of 20,267,100 won of the charges for imposing two thousand,710 won of the charges for causing traffic congestion to the Plaintiff, which are in excess of 26,710,6381.6

1. Details of the disposition;

A. On June 4, 1996, the Committee for the Preparation for Asia-Pacific Conference (ASEM) confirmed the place of the 2000 Asia-Pacific Conference held in our country as the Korea General Trade Center located in Samsungdong, Gangnam-gu, Seoul.

B. The Plaintiff, an incorporated association, the Korea International Trade Association (hereinafter “Plaintiff Korea International Trade Association”) removed separate exhibition halls of the existing Korea, and constructed a convention center, Aembol, office buildings, hotels, and airport offices on the total of 159,159-1, 159-9, and the total of 148,784 square meters (hereinafter “instant three parcels”) in Gangnam-gu, Seoul, the remaining land owned by it (hereinafter “instant site”), and decided to attract private capital for some buildings, such as hotels, airports, and airports. Accordingly, the Plaintiff Korea International Trade Association established a convention center, Aembol, and Plaintiff Korea International Trade Association (hereinafter “Plaintiff Korea International Trade Association”). The Plaintiff Korea International Trade Association, Inc. (hereinafter “Plaintiff Korea International Open Airport”) transferred its agreement attached and business facilities, and the Plaintiff Korea High Airport, Inc., Ltd. (hereinafter “Plaintiff High Airport”), Inc. (hereinafter “Plaintiff High Airport Development Co.,, Ltd., Ltd., the Plaintiff Free Airport of Korea, hereinafter “Plaintiff High Airport”).

C. The Plaintiff International Trade Association constructed the “Ix Center” on the instant site, 41th above the ground, 4th underground, 5th underground, 5th underground, 6th underground, 6th underground, 5th underground, 6th underground, 6th underground, and 5th underground, 6th underground, 5th underground, 6th underground, 6th underground, and 5th underground, 6th underground, 6th underground, 6th underground, and 5th underground, 6th underground, 6th underground, 6th underground, 6th underground, 6th underground, 6th underground, 6th underground, 6th underground, 6th underground, 5th underground, 6th underground, 6th underground, 6th underground, 6th underground, 6th underground, and 5th underground, 6th underground, reinforced concrete development, and 9th, 6th underground, underground, instant building’s building site, 26th underground, underground, and 5th, underground, reinforced concrete, and 6th, underground, instant.

D. The plaintiffs obtained approval from the defendant on March 13, 2002 for the use of the building in this case, and the plaintiff Han- Convention completed the registration of initial ownership on the buildings constructed by them on May 13, 2002, the plaintiff Korea International Trade Association, the Korea International Air Terminal, and the Korea-U.S. Free Development.

E. The Defendant: (a) imposed charges for causing traffic congestion on the instant building from August 1, 2001 to July 31, 2002; (b) imposed KRW 105,831,490 on the Plaintiff International Trade Association; and (c) imposed KRW 26,520,080 on the hotel for the hotel for the Plaintiff Han-concident; and (c) imposed KRW 40,101,650 on the Plaintiff Korean city terminal; and (d) imposed and notified KRW 88,230,560 on the Plaintiff Han-U development on September 8, 2002 (hereinafter referred to as the “instant disposition”).

[Ground of recognition] The fact that there is no dispute, Gap 4, 7, 11, 1-1-4, 3-7, and the whole purport of oral argument

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) Since the instant building is separate from the existing building in terms of structure, function, and size, construction of the instant building constitutes “new construction” or “renovation” because it constitutes “construction” or “construction” of the instant building on the remaining site after removing the separate exhibition hall of Korea, and accordingly, 90% of the charges for causing traffic congestion for three years from the date of the initial construction of the instant building shall be reduced or exempted. Thus, the construction of the instant building constitutes “extension” and the instant disposition of imposition by the Defendant denying reduction or exemption pursuant to Article 38(1) of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act (amended by Presidential Decree No. 17760, Oct. 14, 2002; hereinafter the same) is unlawful.

(2) Even if the Plaintiffs’ construction of the instant building constitutes “extension”, the instant disposition by the Defendant, without taking such measures, is unlawful, despite the fact that the reduction and exemption period should be re-calculated pursuant to Article 38(1) and 7 [Attachment 7] 5(c) of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Construction circumstances of the instant building

(A) For the construction of the instant building, the Plaintiff International Trade Association leased the instant site as follows:

① On March 31, 1999, the Plaintiff International Trade Association entered into a lease agreement with the Plaintiff Han-concil on July 29, 1998, setting the lease agreement as the amount equivalent to all charges and taxes imposed on the land which is the object of the lease from July 29, 1998 to December 31, 2020, while the lease agreement was concluded between the Plaintiff Han-concident and the Plaintiff Han-concil on July 29, 159 and the part of the land in the land lease from July 29, 159 to December 31, 2020, while the lease agreement was made during the construction period, five percent of the sales amount of the land which is the object of the lease, and six percent of the sales amount during the sales period.

② On August 7, 1998, the Plaintiff Korea International Trade Association entered into a lease agreement with the Plaintiff Korea International Air Terminal on a part of the land 159-9 site from the date of entering into the contract to December 31, 2020, while the rent was during the construction period to the extent that it was 6% of the sales amount during the business period.

③ On July 22, 1997, the Plaintiff Korea International Trade Association entered into a lease agreement with the Plaintiff Korea-U.S. on a part of the same 159 site between the Plaintiff Han-U.S. and the Plaintiff Han-U.S. during the construction period from December 1, 1996 to December 31, 2019; and the rental fee, while during the construction period, at least five percent of the sales amount, during the sales period.

(B) In order to carry out the construction business of the instant building at the same time, the Plaintiffs filed a single application for construction permission jointly with the Defendant on November 5, 1996. The Plaintiff Korea International Trade Association filed an application for permission for extension of the existing building on the instant land, which was on the instant land, and the extension permission for the exhibition operation on the 159-1 and the 1599-9, and filed an application for permission together with the instant building, and the said application for construction permission was written as “extension”.

(C) On March 13, 2002, the Plaintiffs obtained approval for the use of the instant building from the Defendant (the date of the same date, the respective general building ledgers for the instant building), and the Plaintiff Han Unconcencing on May 13, 2002, the Plaintiff International Trade Association, the Korea International Air Terminal, and the Korea Unconcencing Development completed the registration of initial ownership on each of their constructed buildings on May 14, 2002.

(2) Current status of the building on the instant site

(A) Before the construction of the instant building, as indicated in the “Ex Post Facto Status of Construction Works 159,” the instant building site was built of 4 stories above ground and 54 stories below ground and 107,850.22§³ below ground; structure was built of steel-framed reinforced concrete structure; reinforced concrete structure; reinforced concrete slab roof; main purpose was to be used for neighborhood living facilities, neighborhood public facilities; and trade center, business facilities; 4 stories below ground; 209,479.28 square meters of total floor area; 209,479.28 square meters of reinforced concrete structure; 209,479.28 square meters of floor area; and 1989.3 November 3, 1989, the Plaintiff International Trade Association obtained approval for the use of the said building from the Defendant.

(B) As seen above, the Plaintiff International Trade Association constructed Aem Center, etc. along with the alteration of the purpose of use for the first and second floors underground of “Trade Center” and the alteration and extension of the purpose of use for the second and fourth floors underground of “Ex Officio” and accordingly, changed the name and purpose of the above exhibition consent into “existing Convention Center” and changed it into neighborhood living facilities, broadcasting and communication facilities, neighboring public facilities, and sales facilities, and entered it in the existing building ledger.

(C) The changes at the time of approval for the use of the instant buildings and existing buildings are as follows.

At the time of approval for the use of the existing total floor area by facility divided by zone owner located within the main sentence, the total floor area of the Korea International Trade Association shall be 107,850.22 107,850.22, 850.22 existing Convention Center 213,084.5 209,479.28 Dox Center / 147,060,51 Han Convention Convention / 34,899.65,89.65 / 34,899.65,39.65,394.51 / 47,918.02, Korea Urban Airport Terminal Doxn Don 47,918.02 / 109,069.90, 320,711,67.209

(D) The instant buildings have separate entrances, conduits, etc., and passage connecting each of the instant buildings is installed underground.

(3) Circumstances of traffic impact assessment

(A) In receiving traffic impact assessment, the Plaintiffs submitted a traffic impact assessment on behalf of the Plaintiffs and submitted a traffic impact assessment to the Defendant. On December 11, 1996, the Plaintiff Korea International Trade Association submitted an application for deliberation on traffic impact assessment with the purport that the total floor area of the construction on the instant site is extended from 349,945.39 square meters to 943,259.39 square meters, to 593,314 square meters.

(B) The Mayor of Seoul Special Metropolitan City received the traffic impact assessment report from the defendant and issued the certificate of deliberation to the Korea International Trade Association on January 24, 1997 after deliberation and resolution by the Seoul Special Metropolitan City Traffic Impact Deliberation Committee.

(C) On September 201, the Plaintiff International Trade Association applied for a review on several occasions thereafter, and obtained a review certificate, and finally applied for a review on the grounds of changes in the business plan and traffic improvement measures. On October 26, 2001, the Seoul Special Metropolitan City Traffic Impact Deliberation Committee decided on October 26, 2001, on the condition that the project implementation period should be adjusted after the World Cup was held, and on the condition that the traffic demand and capacity analysis portion should be supplemented. The Seoul Special Metropolitan City Mayor issued a notice of the contents of consultation (the previous Urban Traffic Improvement Promotion Act was issued in accordance with the Urban Traffic Improvement Promotion Act, but the deliberation certificate was enacted on December 31, 199 by Act No. 6095, which was implemented on January 1, 2001, and issued a modified notice of the contents of consultation. The Seoul Special Metropolitan City Traffic Impact Deliberation Committee stated the content of consultation as “148,396 and 9700 square meters” in each site area subject to reduction or exemption, “196.36.7 square meters”

【Unsatisfied Facts, A7, 11, 2-1-4, 3-1-7, 5, 9-1, 2, 6-3, 8-1-10, 10-1-8, 3 through 8, and 3-8, respectively.

D. Determination

(1) The nature of the construction of the instant building

(A) The Urban Traffic Improvement Promotion Act and its Enforcement Decree, which are the basis of the instant disposition, do not have the definition of the new construction, extension, and reconstruction of a building. Therefore, the definition of the Building Act and its subordinate regulations shall be applied. However, it is reasonable to interpret it for the purpose of the Urban Traffic Improvement Promotion Act and its subordinate regulations, taking into account the different legislative intent and purpose,

In full view of the provisions of Article 2 subparag. 1 and 9 of the Building Act, Articles 2(1) and 3(1) of the Enforcement Decree of the Building Act, the term “construction” means new construction, extension, remodeling, reconstruction, or relocation of a building. Among them, “new construction” means construction of a new building from the beginning or construction of a new building on a site where an existing building is removed or demolished or demolished, except for cases falling under reconstruction or reconstruction, and “extension” means an increase in the building area, total floor area, number of floors, or height of a building in the same site where an existing building is located, and there is no relationship between the existing building and a separate building.

However, in distinguishing a new building from an extension, a new building is built, or its main building is built, and an extension refers to expanding the existing building area, total floor area, and floors, or building appurtenant thereto. Thus, it cannot be determined only on the basis of whether it was done within the same site. Even if a new building is a newly constructed building on the same site, in light of its structure, size, function, etc., if a new building newly built falls under an independent building entirely separate from an existing building in light of social norms, it cannot be deemed a new building that constitutes an increase in the building area, total floor area, floors, or height of the existing building (see Supreme Court Decision 98Du3112, Jun. 23, 2000). Therefore, it is reasonable to deem it to constitute a new building (see Supreme Court Decision 98Du311

(B) As seen above, the building of this case is constructed by each of the plaintiffs in his own cost and effort, and its owner is different, and in light of its size, use and form, etc., it cannot be viewed as a single building en bloc (the building of this case is operated under the overall management of the Plaintiff Korea International Trade Association, and its underground floor is connected to the structure of the building). It seems that the building of this case is an independent building entirely separate from the existing trade center or exhibition Dong. The building of this case is registered in each new building management ledger and the new register is compiled, and the registration of preservation of ownership is made after the new register is compiled. Since the plaintiffs are registered in each new building management ledger for the building of this case, the building of this case will be constructed with a building permit obtained at the same time by the representative of the Plaintiff Korea International Trade Association or under traffic impact assessment by the traffic impact assessment organization, and it can not be readily concluded that the building division of this case was "extension" of the building of this case," and it constitutes a new construction of the building of this case.

Therefore, the plaintiffs' assertion that 90% of the charges for causing traffic congestion to the buildings in this case should be reduced or exempted for three years from the date of the first completion of the buildings in this case is with merit.

(C) On this point, the Defendant asserts that the instant disposition is lawful in light of the purport of the Urban Traffic Improvement Promotion Act, which was established to improve urban traffic management systems and newly established a system that imposes traffic inducement charges on the owner of facilities that cause urban traffic congestion in order to resolve urban traffic accidents and enhance the efficiency of means of transportation and traffic convenience.

Article 13 of the former Urban Traffic Improvement Promotion Act stipulates that a project implementer who intends to install facilities exceeding a certain size in an urban traffic improvement district shall undergo a traffic impact assessment in advance by a traffic impact assessment organization, and Article 38 of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act introduces a system that reduces traffic inducement charges as incentives for a certain ratio in the event that traffic improvement measures are faithfully formulated and implemented in order to ensure the effectiveness of traffic impact assessment. As seen above, as long as the requirements of Article 38 (1) of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act are met by implementing traffic improvement measures stated in the notice of the contents of consultation issued by the Mayor of Seoul Special Metropolitan City, the defendant shall not refuse the reduction or exemption in consideration of traffic congestion, etc.

Therefore, the defendant's argument on this point is without merit.

(b) The amount of charges for causing traffic congestion;

Since the plaintiffs received traffic impact assessment pursuant to the relevant Acts and subordinate statutes before the enforcement date of the Urban Traffic Improvement Promotion Act (amended by Presidential Decree No. 17760 of October 14, 2002), 90% of the charges for causing traffic congestion for three years from the date of the first completion of the relevant facilities shall be reduced or exempted pursuant to Article 4 of the Addenda of the Urban Traffic Improvement Promotion Act and Article 38(1) of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act. Since the amount of the charges for causing traffic congestion to the buildings in this case is the same as the attached calculation, the portion exceeding 68,732,617 out of the amount of the charges for causing traffic congestion to the plaintiff International Trade Association, which exceeds 105,831,490 won, 16,520,080 won among the amount of the charges for causing traffic congestion to the plaintiff, 26,520,080 won, 206, 3716, 3651, 2057, 1367,

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. Since the part against the plaintiffs in the judgment of the court of first instance which made a different conclusion is unfair, it is revoked, and the remaining appeal of the plaintiffs is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Nung-hwan (Presiding Judge)