[1] The legal nature of the imposition period of development charges under Article 14 of the former Restitution of Development Gains Act (=the provision of decoration)

[2] The case affirming the judgment of the court below that even if there is an error in the imposition of development charges, it cannot be concluded that the defect is objectively obvious to the extent that there is no room for dispute over the interpretation at the time of imposition, and thus, the above imposition of development charges

[1] In light of the provisions of Article 14 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), or the provisions of Articles 15 and 18 through 21 of the same Act, which provide for the procedures for imposition and collection of development charges, are to prevent speculation on land and promote the efficient utilization of land, thereby contributing to the sound development of the national economy, by appropriately distributing the development gains by recovering the purpose of imposition of development charges, and thereby contributing to the imposition and collection of development charges, it is reasonable to view that Article 14 of the same Act is not a provision regarding the period of exclusion that the development charges cannot be imposed in whole after the lapse of three months from the completion of development charges, rather than a provision regarding the period of exclusion that allows administrative agencies to promptly impose and collect development charges within a period of not more than three months in order to achieve the purpose of this Act, such

[2] The case affirming the judgment of the court below that the land price at the time of commencement, which is the basis of the imposition of development charges, is not calculated as the individual land price, and is calculated as the land price applied by the comparison table to the officially announced price of reference land, and that there is an error of law which does not recognize the deemed acquisition tax as the development costs under Articles 105 (5) and 111 (3) of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993), since the defect of the above administrative disposition cannot be readily determined as objectively and objectively to the extent that there is no room for dispute over the interpretation at the time of

[1] Article 14 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) / [2] Article 19 of the Administrative Litigation Act, Articles 10 and 11 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), Article 2 of the Addenda (amended by Act No. 4563 of Dec. 30, 1989), Articles 105 (5) and 111 (3) of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993)

[1] Supreme Court Decision 92Nu10562 delivered on April 12, 1994 (Gong1994Sang, 1484), Supreme Court Decision 93Nu21071 delivered on April 15, 1994 (Gong1994Sang, 1502), Supreme Court Decision 97Nu1211 delivered on September 21, 199 (Gong199Ha, 2230)

Central Tourism Development Co., Ltd. (Attorney Han Man-chul, Counsel for the defendant-appellant)

Republic of Korea and one other

Daejeon High Court Decision 2002Na6379 delivered on June 4, 2003

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

1. As to the expenses disbursed out of development costs, which exceed the development costs recognized by the Jincheon-gun and Jincheon-gun;

The court below held that the portion of acquisition tax imposed following the acquisition of a golf course, which is a private property, shall not be included in development costs, since it is not an expense per se for the development project, and it shall not be deducted since January 1, 1990, on the grounds that there is no evidence to acknowledge that the Plaintiff used it after January 1, 1990, under Article 11 (1) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter referred to as the "Act") and Article 10 (1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 13718 of Aug. 25, 1992).

In light of relevant statutes and records, the above determination by the court below is just, and there is no error of law by misunderstanding legal principles as to the calculation of development costs like the grounds of appeal

2. The legal nature of the development charges imposition period

In light of the legislative form of Article 14 of the Act, or in view of the relevant provisions such as the provisions of Article 1 of the Act and Articles 15 and 18 through 21 of the Act, which provide for procedures for imposition and collection of development charges and procedures for imposition and collection of development charges, which aim to prevent speculation on the land and contribute to the sound development of the national economy by recovering the development gains from the purpose of imposition of development charges and distributing them properly, it is reasonable to view that Article 14 of the Act is not a provision concerning the exclusion period in which no development charges cannot be imposed after the lapse of three months from the completion date of development, rather than a provision regarding administrative agency's imposition and collection of development charges promptly within a period of not more than three months to achieve the purpose of this Act (see Supreme Court Decision 92Nu10562 delivered on April 12, 194).

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to exclusion period of imposition like the grounds of appeal.

3. As to the invalidity of the instant disposition as a matter of course

Under the premise that it is necessary to reasonably consider the defect as a material part of the laws and regulations to be null and void as well as objectively clear, and determine whether the defect is significant and obvious, the purpose, significance, function, etc. of the laws and regulations at the same time, and to reasonably consider the specificity of the specific case itself, the lower court determined that, in light of Article 10(3) of the Act and Article 2 of the Addenda of the Act, the point of commencement, which serves as the basis for the imposition of development charges on the land subject to the imposition of this case, is not calculated as the individual land price as of January 1, 1990, and the calculation of development charges by comparing the officially announced land price with the officially announced land price as of January 1, 1990, is not deemed as the material part of the laws and regulations on the calculation of development charges, and thus, it is obvious that the land price should be calculated as of the individual land price as of the commencement of the imposition of the development charges as of the first five-year period, and that there is no room to objectively determine the development charges as at the same point of time.

In light of the relevant statutes and the records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the invalidation of an administrative disposition, such as the grounds of appeal.

4. Conclusion

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

Justices Shin Shin-chul (Presiding Justice)