(a) Requirements for the exclusion of a housing site or a housing site owned by a corporation, which exceeds the upper limit of the ownership of each household held at the time of enforcement of the Act on the Ownership of Housing Site from the subject of imposition of excess

(b) Whether the land used as a site for a driving school prior to the enforcement of the Act on the Ownership of a Housing Site constitutes a housing site excluded from the imposition of excess ownership charges, in a case where it has been used as it is by submitting a use plan to continue to use the land for its intended purpose

[Majority Opinion]

A. The use and development of a housing site exceeding the upper limit to the ownership of each household held at the time of the enforcement of the Act on the Ownership of a Housing Site, or a housing site owned by a corporation, which falls under each subparagraph of Article 11(1) and each subparagraph of Article 12(1) of the same Act, shall also be used and developed as well as the use and development of the housing site, and if the housing site continues to be used by the method of use at the time of the enforcement of the Act without using and developing it as such, it shall not

B. The court below erred in the misapprehension of legal principles as to the scope of a site excluded from the imposition of excess ownership charges on the sole ground that a site as a site for an automobile driving training institute is used as it submitted a use plan to continue to be used for the purpose that it was used before the enforcement of the Act without examining whether it falls under any of the subparagraphs of Article 11(1) of the Act on the Ownership of the Site.

【Minor Opinion】

A. The legislative intent of Article 3 (1) of the Addenda to the former Enforcement Decree of the Act on the Ownership of Housing Sites (Presidential Decree No. 12935, Mar. 2, 1990) is to ensure harmony between the guarantee of the people's vested property rights prior to the enforcement of the Act and the achievement of the purpose pursued by the Act if the ownership of the housing site is used and developed in accordance with the pertinent use plan. Thus, in determining the scope of the housing site for which the excess ownership is not subject to the above provision, the specific determination of whether the excess ownership is to be imposed shall be made in consideration of the legislative purpose of the above Act. In particular, in order to determine whether the existing housing site owner should impose the excess ownership charge on the housing site prior to the enforcement of the Act by other Acts and subordinate statutes, other than the legislative purpose of the Act, the legislative purpose of the relevant Acts and subordinate statutes shall not be considered as the standard for determining whether the excess ownership charge is to be imposed.

B. B. Before the enforcement of the Act on the Ownership of a Housing Site, a person has been equipped with facilities such as a driving training room meeting the facility standards set forth in the relevant statutes governing a driving school and operated a driving school with authorization from the competent authorities for establishment, and if the Act has submitted a plan to use it as a site for a driving school continuously in the future and uses it in accordance with the plan, the site shall be deemed as a site excluded from the imposition of a charge for excess ownership under Article 3(1) of the Addenda of the former Enforcement Decree of the Act on the Ownership of Housing Site

Articles 10, 11(1), 12(1), 19, 20, and 31 of the Act on the Ownership of Housing Sites; Articles 2 and 3 of the Addenda to the Act on the Ownership of Housing Sites; Article 3(1) of the Addenda to the Enforcement Decree of the Act on the Ownership of Housing Sites ( March 2, 1990)

Supreme Court Decision 94Nu6277 delivered on December 22, 1994 (Gong1995Sang, 685) Decision 94Nu1200 delivered on April 28, 1995 (Gong1995Sang, 1995Ha, 2610), 94Nu2326 delivered on June 29, 1995 (Gong195Ha, 2610), 94Nu13480 delivered on July 14, 1995 (Gong195Ha, 2819)

Plaintiff’s Attorney Lee Sung-young et al., Counsel for the plaintiff-appellant

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

Seoul High Court Decision 93Gu20926 delivered on February 16, 1994

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, as to whether the instant site, which is used as a site for the practical skills training facility of a driving school, is exempt from the charge for excess ownership (hereinafter referred to as the "charge"), the court below held that the instant disposition of this case, based on the premise that the instant site is subject to the charge, is unlawful, since it is the land that the Plaintiff had owned before the enforcement of the Act on Ownership of the Housing Site (hereinafter referred to as the "Act"), and was used as the site for a driving school, and it has been continuously used as the site for a driving school since it submitted a use plan to the effect that it will continue to be used as the site for the practical skills training facility in the future in accordance with Article 2(2) of the Addenda of the Act as well as that it has been used as the site for a driving school until now.

2. The Act imposes charges on a housing site or a corporation owned in excess of the upper limit for each household in order to induce the people to own the housing site properly and promote the supply of the housing site: Provided, That if the housing site falls under any of the subparagraphs of Article 20(1) of the Act, it shall be excluded from the subject of charges, and among the reasons for exclusion, it shall include "use and development" of the housing site.

In addition, the Act does not explicitly limit the specific contents of the "use and development" as a ground for exclusion from the imposition of charges, but in order to achieve the legislative purpose of the Act to encourage the citizens to own the housing site properly and facilitate the supply of the housing site, the Act prohibits the ownership of the housing site in case of a corporation, setting the limit of the area where the individual can own the housing site in order to achieve the legislative purpose of the Act, and if an individual intends to acquire the housing site in excess of the upper limit of the ownership of each household by contract or a corporation intends to acquire the housing site in accordance with the contract, it shall be construed that the permission for the acquisition of the housing site in this case shall be granted prior to the conclusion of the contract, and the permission for the acquisition of the housing site in excess of the upper limit of the upper limit of each household as a follow-up regulation measure, it shall be interpreted that the use and development of the housing site as a ground for exclusion from the imposition of charges should fall under each subparagraph of Article 11(1) and Article 12(1)12(1) of the Act.

Furthermore, Articles 2 and 3 of the Addenda of the Act stipulate that housing sites and corporate housing sites owned by each household in excess of the upper limit of the ownership of each household at the time of the enforcement of the Act shall be deemed housing sites permitted, reported, or notified under Articles 10 through 15, and that charges on housing sites falling under the provisions of each subparagraph of Article 19 of the Act shall not be imposed within two years from the enforcement date of the Act, and that the requirements for exclusion from the imposition of charges after two years are not entirely prescribed. In light of the above, use and development of housing sites and corporate housing sites in excess of the upper limit of the ownership of each household at the time of the enforcement of the Act should be used and developed with the contents falling under each subparagraph of Articles 11(1) and 12(1) of the Act, and if the housing sites continue to be used in accordance with the method of use at the time of the enforcement of the Act without using and developing the same content, they shall be deemed not subject to the imposition of charges.

Therefore, if the owner of a housing site exceeding the upper limit of ownership of each household held at the time of the enforcement of the Act intends to continue to use the housing site in accordance with the use method at the time of the enforcement of the Act without using and developing it as a content falling under any of the subparagraphs of Article 11(1) of the Act, it will be required to pay charges

3. Nevertheless, without examining whether the Plaintiff’s land as a site for practical skills training of a driving school falls under any of the subparagraphs of Article 11(1) of the Act, the lower court deemed that it constitutes a site exempt from the imposition of charges solely on the ground that it submitted a plan for use to continue to be used for the purpose that it was used before the enforcement of the Act and used as it is. Accordingly, the lower court erred by misapprehending the legal doctrine on the scope of the site excluded from the imposition of charges, thereby adversely affecting the conclusion of the judgment

4. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for Park Jong-ho, Park Jong-ho, Park Jong-ho, Park Jong-ho and Park

The Dissenting Opinion by Justice Park Jong-ho, Justice Park Jong-ho, Justice Park Jong-ho, and Justice Park Jong-dae is as follows.

1. In order to achieve the legislative purpose (Article 1), the Act stipulates that permission shall be obtained in cases where the ownership of a certain area of a housing site exceeds the upper limit as a pre-regulation measure (Article 7). (Article 10) In cases where a person intends to acquire a housing site exceeding the upper limit as a pre-regulation measure (Article 10). As a follow-up regulation measure, charges shall be imposed according to the classification rate according to the ownership period and use status of the housing site (Article 19). (Article 19) In cases of a housing site exceeding the upper limit of ownership of a household at the time of the enforcement of the Act, a disposal shall be de facto enforced by imposing charges after the lapse of the grace period prescribed in Article 3 of the Addenda of the Act. However, Article 2 of the Addenda of the Act provides that "the housing site exceeding the upper limit of ownership of a household at the time when this Act enters into force and the housing site owned by a corporation shall be deemed as a housing site for which a report or notification has been made pursuant to the provisions of Articles 10 through 15 of the Act."

As such, the legislative intent of Article 3 (1) of the Addenda to the Enforcement Decree of the Act, which prevents the imposition of charges in cases of using and developing a housing site in accordance with the use plan concerned, shall be deemed to aim to harmonize the guarantee of the people's right to acquire property and the achievement of the purpose pursued by the law prior to the enforcement of the Act. Therefore, in determining the scope of a housing site for which no charge is imposed pursuant to the above provision, it shall be specifically determined whether to impose charges in relation to the housing site concerned in consideration of the legislative intent of the above Act. In particular, in order to determine whether to impose charges on the housing site held by the existing owner prior to the enforcement of the Act prior to the enforcement of the Act, in addition to the legislative purpose of other Acts and subordinate statutes, it shall not be determined by taking into account the legislative intent of the relevant Acts and subordinate statutes.

2. However, Article 17 (1) of the Act on the Establishment and Operation of Private Teaching Institutes (wholly amended by Act No. 3728, Apr. 10, 1984) which regulates the matters concerning the authorization of private teaching institutes operated by the Plaintiff on the instant site provides that "the part of the authority under the provisions of Articles 5, 6, 7, 12 (2), 13, 14, 16, and 19 concerning private teaching institutes on the automobile driving system among the authority of the competent authorities under this Act may be entrusted to the Seoul Special Metropolitan City Mayor, Metropolitan City Mayor, and Do governor under the conditions as prescribed by the Presidential Decree." Article 20 (1) of the Enforcement Decree of the said Act provides that "the authority of the competent authorities concerning private teaching institutes on automobile driving training shall be entrusted to the head of the competent Seoul Special Metropolitan City, Metropolitan City Mayor, and Do governor with the authority of the following subparagraphs concerning private teaching institutes on automobile driving school, which shall be more than 60 square meters of its size and its facilities shall not be entrusted to the Mayor.

In addition, the Act provides that the owner of a housing site may escape from the sanction of imposing the charge by disposing of, using, and developing the housing site (Article 20). In preparation for cases where it is difficult, there is only a provision that the person liable for the payment of the charge may request the Minister of Construction and Transportation to purchase the relevant housing site (Article 31), and the existing housing site owner is equipped with the facilities required by other Acts and subordinate statutes prior to the enforcement of the Act and operates the permitted or reported business pursuant to other Acts and subordinate statutes by using such facilities.

In light of the purport of the relevant laws and regulations, if prior to the enforcement of the law, the Plaintiff has been equipped with facilities such as driving training instructors meeting the facility standards prescribed by the relevant laws and regulations governing driving institutes on the instant site, and operated a driving school with authorization from the competent authorities, and accordingly, submitted a plan to use the land to be used as a site for a driving school continuously in the future, and used it in accordance with the plan, the instant site shall be deemed as a site that is exempt from the imposition of charges under Article 3(1) of the Addenda of the Enforcement Decree of the Act.

In addition, due to the application of the upper limit of the law enacted and enforced after the enforcement of the law, the ownership of housing sites prior to the enforcement of the law and the de facto deprivation of the property rights of those who installed facilities and used the facilities under the previous law.

3. Therefore, the judgment of the court below to the same purport is justifiable, and it is not possible to agree with the majority opinion that differs from this opinion.

Justices Park Jong-ok (Presiding Justice) (Presiding Justice) Park Jong-tae (Presiding Justice)