[1] The case holding that since the model house for the sale of containers is not a building that requires a building permit or a building report under the former Building Act, and it does not fall under a building that requires approval for use, it is unlawful that the land attached to the model house is subject to general aggregate taxation, and it is identical even if the report on the extension of the retention period was not made until the expiration of the retention period of the reported temporary building

[2] In a case where a certain administrative disposition is unlawful, whether it can be determined immediately by itself that the administrative disposition constitutes a tort caused by a public official’s intentional or negligent act (negative)

[3] The case holding that the public official's act of imposing tax on the land subject to general aggregate taxation can not be deemed as a negligence that can recognize the State's liability for damages by judging that the model house for sale of containers whose retention period has expired is illegal

[1] The case holding that since the model house for the sale of containers is not a building that requires a building permit or a building report under the former Building Act (amended by Act No. 5895 of Feb. 8, 1999), it does not fall under a building that should obtain approval for use, the taxation of land annexed to the model house is unlawful in the taxation of general aggregate land subject to general aggregate taxation, and it is also identical even if the report was not filed until the retention period of the reported temporary building expires.

[2] Even if a certain administrative disposition is unlawful, it cannot be determined immediately by itself that the administrative disposition constitutes a tort caused by a public official's intentional or negligent act, and it requires a separate judgment as to the existence of a public official's intentional or negligent act. The reason is that, even if an administrative agency conducted a certain theory before the establishment of the interpretation of the relevant Act and subordinate statutes and conducted a work in an unlawful manner, it is difficult to expect that it would be an average public official with the same treatment method at the time of the disposition, unless there are special circumstances, it cannot be viewed as a result of a public official's negligence, barring special circumstances.

[3] The case holding that the public official's act of imposing tax on the land subject to general aggregate taxation can not be deemed as a negligence that can recognize the State's liability for damages by judging the model house for sale of containers whose retention period has expired as an illegal building

[1] Article 234-15 of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000), Article 194-14 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996), Article 15 (2) of the former Building Act (amended by Act No. 5895 of Feb. 8, 199) / [2] Article 2 (1) of the State Compensation Act / [3] Article 2 (1) of the State Compensation Act

[2] Supreme Court Decision 97Da7608 delivered on July 11, 1997 (Gong1997Ha, 2487), Supreme Court Decision 96Da53413 delivered on September 17, 199 (Gong1999Ha, 2166), Supreme Court Decision 99Da70600 delivered on May 12, 200 (Gong2000Ha, 1403), Supreme Court Decision 200Da20731 Delivered on March 13, 2001 (Gong2001Sang, 867), Supreme Court Decision 200Da12679 delivered on December 14, 2001 (Gong202, 2766)

Plaintiff (Law Firm Korea, Attorneys Lee Young-dae et al., Counsel for the plaintiff-appellant)

Gangnam-gu Seoul Metropolitan Government (Attorney Jeong Sung-sung, Counsel for defendant)

Seoul High Court Decision 2001Na40819 delivered on May 8, 2002

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

1. Regarding ground of appeal No. 1

Article 234-15 (1) through (3) of the former Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000) classify the aggregate land tax base into the aggregate aggregate tax base, the separate aggregate tax base, and the separate tax base, and stipulates the land annexed to a building prescribed by Presidential Decree as the land subject to separate taxation, and Article 194-14 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996) provides for the scope of land annexed to a building upon delegation, while subparagraph 4 of Article 234-14 of the former Enforcement Decree of the Local Tax Act provides for the land annexed to a building subject to permission, etc. under the related Acts and subordinate statutes, such as the Building Act, and the land annexed to a building under use without undergoing a separate taxation

As to the defendant's assertion that the land site in Gangnam-gu (hereinafter referred to as the "land in this case") falls under the "building under use inspection" under Article 194-14 (1) 4 of the Enforcement Decree of the Local Tax Act and the disposition of this case which reported the land in this case is legitimate, the above model house is not the "building under use inspection" under Article 15 (2) of the former Building Act (amended by Act No. 5895 of Feb. 8, 199; hereinafter referred to as the "Building Act"), the former Enforcement Decree (amended by Presidential Decree No. 16874 of Jun. 27, 200) since the model house for sale on the ground constitutes the "building under use inspection" under Article 194-14 (1) 4 of the Enforcement Decree of the Local Tax Act, and it is not the "building under use approval" under Article 15 (4) 9 of the Building Act or the "building report for the purpose of use of the building under Article 15 (5) of the Building Act".

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to buildings subject to usage inspection as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

A. The judgment of the court below

The court below held that the public official belonging to the defendant is liable to pay the plaintiff the total sum of the aggregate land tax paid by him to the plaintiff as the employer of the public official in charge of the disposition of this case who made the disposition of this case, 63,704,60 won and delay damages on the ground that the defendant is liable to pay the plaintiff the aggregate of the aggregate land tax of 1995, since the public official in charge of the disposition of this case who made the disposition of this case, as the public official in charge of the defendant, was not clear as to whether the above model house constitutes a building subject to a pre-use inspection at the time of the disposition of this case, and there was a duty of care to prevent any mistake as to the land subject to general aggregate taxation, even though he had been negligent in performing his duty of care, such as new questioning with the superior agency in performing his duties.

B. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

Article 2 (1) of the State Compensation Act provides that "the State or a local government shall compensate for any loss inflicted upon any other person by intention or negligence in violation of the Acts and subordinate statutes in the course of performing its duties." Even if any administrative disposition is unlawful, it cannot be readily determined immediately that the administrative disposition constitutes a tort caused by intention or negligence of the public official, and the existence of intention or negligence of the public official should be decided separately. This is because, even if an administrative agency took one theory before the establishment of the interpretation of the relevant Acts and subordinate statutes, which led to an illegal execution of the relevant laws and subordinate statutes, and it was difficult to expect that the public official will faithfully perform its duties in excess of the method of disposal at the time of the disposition, unless there are any special circumstances (see Supreme Court Decisions 95Da32747, Oct. 13, 1995; 200Da2731, Mar. 13, 2001).

However, as seen earlier, even in the case of a temporary building such as the above model house, the report on the construction of a temporary building with the retention period fixed is required by the provisions of related Acts and subordinate statutes, such as the Building Act. According to the facts established by the court below, even though there was no express provision on the report on the extension of retention period at the time of the disposition in this case, in fact, the report on the extension of retention period of a temporary building was made in fact, and the non-party corporation, which constructed the above model house on the land in this case, has reported on the extension of retention period at the time of the above model house construction (from April 1, 1991 to March 31, 192, 195), and the report on the extension of retention period at the time of the temporary building was not made after 195, and since the Seoul Metropolitan City Aggregate Land Tax Management Guidelines at the time of the disposition in this case, it cannot be deemed that the public official belonging to the defendant constitutes a building without the duty of general aggregate taxation, it constitutes a building without the above general aggregate taxation period.

Nevertheless, the judgment of the court below which judged otherwise and recognized the defendant's liability for damages is erroneous in the misapprehension of legal principles as to the public official's intentional or negligent act as a requisite for establishing the State liability, and it is obvious that this affected the result of the judgment, and thus,

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Byun Jae-chul (Presiding Justice)