[Defendant-Appellee] The Korea Development Bank of Korea (Attorney Cho Jong-chul, Counsel for defendant-appellee)

Goyang-si Market

September 6, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of KRW 117,623,850 of the development restriction zone damage charges against the Plaintiff on December 5, 2010 shall be revoked.

1. Details of the disposition;

A. A. Around July 2008, the Plaintiff filed an application with the Defendant for permission to install aggregate scrapers (hereinafter “temporary facilities for the instant construction work”) for the installation of 357 lines (No. 2 freedom and connection roads) of local roads on the 2,393 square meters (hereinafter “the instant permitted site”), part of the land in Gyeyang-gu, Seo-gu, Seo-gu, Seo-gu, Seoul, which is a development-restricted zone, for the permission of installation of aggregate scrapers (hereinafter “temporary facilities for the instant construction work”), from the Defendant on July 14, 2008.

B. On September 6, 2008, the Defendant: (a) deemed that the permission to install temporary facilities for the instant construction works to the Plaintiff for the instant site constitutes an act under the proviso of Article 12(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436, Feb. 6, 2009; hereinafter “Development Restriction Zones Act”); (b) provided that Article 23 of the same Act and Article 34 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21139, Nov. 28, 2008; hereinafter “Enforcement Decree of the Development Restriction Zones Act”), deeming that the State or a local government was directly installed as a project implementer and imposed KRW 117,623,850 of the development restriction zone damage charges reduced by 50%, and the Plaintiff paid it around October 2008.

C. However, on December 5, 2010, if the Defendant imposed a development restriction zone damage charge by reducing 50% even though the Plaintiff’s temporary installation of facilities for the instant construction works is not subject to reduction of or exemption from the charges, the Defendant additionally imposed a development restriction zone damage charge of KRW 117,623,850 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, 2, Gap evidence 3, 4, Eul evidence 2 and 3-1, 2, Eul evidence 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, on the instant permitted site, installed only aggregate sorting machine, a temporary facility for construction, with the instant permission for activities, and did not change the land category or form and quality. As such, the Plaintiff cannot impose a development restriction zone damage charge on the Plaintiff. Furthermore, even if otherwise, the development restriction zone damage charge should be calculated on the basis of the area actually installed with the temporary facility for the instant construction work (1,535 square meters out of the area of 2,393 square meters in the instant permitted site) at least. Therefore, the instant disposition on a different premise should be revoked as it is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

In Article 21(1) of the Development Restriction Zones Act, the Minister of Land, Transport and Maritime Affairs shall impose and collect a charge for damage to a development restriction zone from a person who has obtained permission under the proviso to Article 12(1). Article 22 of the same Act provides that the Mayor, etc. shall, without delay, notify the Minister of Land, Transport and Maritime Affairs of the details of permission under the proviso to Article 12(1). Article 25(1) and (2) of the same Act provides that charges shall be imposed without delay upon the notification of the details of permission under Article 22 and the payment deadline for charges shall be one month from the date on which charges are imposed. Article 24(1) of the same Act provides that charges shall be calculated based on the area of land subject to permission in calculating charges. Meanwhile, Article 25(7) of the same Act provides that a person who has paid charges shall refund charges equivalent thereto, as prescribed by Presidential Decree, if the area of permission is reduced due to the revocation of permission under Article 30 or the modification of business plan or other similar reasons

In full view of the above provisions, if permission is granted pursuant to the proviso of Article 12(1) of the Development Restriction Zone Act, a charge shall be imposed and paid calculated based on the entire area of the land subject to permission regardless of whether the building and installation of structures have been actually constructed on the land subject to permission, or whether the land subject to permission has actually changed its form and quality. However, if the area subject to permission for activities has decreased due to cancellation of permission or change of business plan and other similar reasons, the already paid charges shall be refunded only if the area subject to permission for activities has decreased due to the change of the area of the land subject to permission (Article 36 of the Enforcement Decree of the Development Restriction Zone Act provides that the area of the land subject to permission shall be the area subject to change of form and quality of the land. However, in light of the relevant provisions seen earlier, the land which serves as the basis for calculating charges

Therefore, the plaintiff's assertion that only if the form and quality of land are actually changed, the charge should be imposed, or the charge should be calculated based on the area where the construction of a building or the installation of a structure has been actually done, is

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment Form 5]

Judges Kim Su-cheon (Presiding Judge) Na Jong-hun