[1] The method of determining whether a person who obtained permission for a land transaction contract uses the land as a site for a building existing for the permitted purpose

[2] Whether an administrative agency has discretion to determine the amount of non-performance penalty different from that stipulated in the National Land Planning and Utilization Act and the Enforcement Decree thereof for an act of violating the duty to use the land for permitted purposes (negative)

[1] Articles 124(1) and 124-2 of the National Land Planning and Utilization Act, Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act / [2] Article 124-2 of the National Land Planning and Utilization Act, Article 124-3 of the Enforcement Decree of the National Land Planning and Utilization Act

[1] Supreme Court Order 2011A42 dated February 9, 2012

Samro Co., Ltd. (Law Firm Yujin, Attorneys Kim Yong-ho et al., Counsel for the defendant-appellant)

Head of Seongbuk-gu, Seoul Special Metropolitan City (Law Firm Shin-ro, Attorneys Lee Dong-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu5652 decided August 26, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 124(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) imposes a person who has obtained permission for a land transaction contract on the obligation to use the land for a period prescribed by Presidential Decree not exceeding five years, unless any ground prescribed by Presidential Decree exists. Article 124-2 of the National Land Planning and Utilization Act provides that the head of a Si/Gun/Gu may order a person who has obtained permission for a land transaction contract to perform the obligation to use the land for a considerable period of time against a person who has failed to perform the obligation to use the land for the permitted purpose; and Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree”) provides that the person shall impose a non-performance penalty within the limit of 10/100 of the acquisition value of the land by classifying the amount of non-performance penalty by the type of land acquisition value in accordance with the type of violation of the obligation to use land and by classifying it into 10/100 if the amount is left for the original purpose of use without direct use, and by 7/10/10/10.

2. The provisions of the National Land Planning Act and subordinate statutes aim at ensuring the effectiveness of the permission system for land transaction contract introduced to prevent speculative land transactions to stabilize the economic life of the people and facilitate efficient utilization of the national land (see Supreme Court Order 2011No. 42, Feb. 9, 2012). Therefore, it is reasonable to regulate the land transaction contract of the land that exists in a building and is used as the site for speculative purposes by regulating the purpose of use of the building. Therefore, whether the land is used for the permitted purpose should not be determined based on whether the building can be used for the permitted purpose, not on whether it can be used for the permitted purpose, but on whether it is actually used for the purpose of use as stated in the permission plan for land transaction contract. This should be determined in accordance with social norms by comprehensively and comprehensively taking into account the details of the land use plan submitted at the time of application for land transaction permission, the structure and status of use of the ground building, the land use plan and its extent and reason, etc., if there are differences between

Based on its adopted evidence, the court below rejected the Plaintiff’s assertion that the Plaintiff obtained the land transaction permission on the ground that the Plaintiff neglected to use the instant land for the purpose of obtaining the land transaction permission, on the ground that the Plaintiff did not use the land for the purpose of obtaining the land transaction permission, but did not use the land for the purpose of obtaining the land transaction permission, on the premise that it should be determined depending on whether the Plaintiff used the land for the purpose of obtaining the land transaction permission, and that the Plaintiff used the land for the land for the site of the building for the purpose of obtaining the land transaction permission. In full view of various circumstances as stated in its reasoning, the court below rejected the Plaintiff’s assertion that the Plaintiff did not use the instant building for the purpose of obtaining the land transaction permission and neglected to use it as the neighboring land for the purpose of obtaining the land transaction permission.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s recognition and determination is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine regarding the conditions and neglect of land transaction permission, or by exceeding the bounds of

In addition, Article 124(1) of the National Land Planning and Utilization Act, which provides for the duty of land use to a person who has obtained permission for a land transaction contract, does not stipulate whether a person who has obtained permission for a land transaction contract has purchased the relevant land for speculative purposes. Thus, the first Plaintiff’s ground for appeal cannot be accepted on a different premise (see Supreme Court Decision 2011Du10935, Feb. 9, 2012

3. As seen earlier, in light of the structure, form, and content of relevant regulations, such as the fact that the Enforcement Decree specifies the standard of the amount of non-performance penalty by classifying it by type of offense according to the statutory delegation, and does not allow discretion as to the amount of imposition disposition in accordance with the language and text of the provision, the imposition standard of non-performance penalty prescribed by the National Land Planning and Utilization Act and the Enforcement Decree thereof shall be deemed not to set the upper limit, but to stipulate a specific amount calculated by type of offense, and therefore, the administrative agency has no discretion to determine

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court is justifiable to have rejected the Plaintiff’s assertion that “the instant disposition of imposing the charge for compelling compliance is unlawful by exceeding the amount of the charge for compelling compliance, by deviating from and abusing discretion.” In so doing, the lower court did not err by misapprehending the legal doctrine regarding deviation and abuse of discretion, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to logical and empirical rules.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)