[1] Whether the site where the so-called “main complex building” is constructed is included in the “site where multi-family housing is constructed” under Article 16-2(2)1 of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (affirmative)

[2] In a case where the competent Mayor calculates the average floor area ratio under Article 16-2 (2) 1 of the Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas by simply dividing the floor area ratio by the number of specific use areas, and imposes the charges for intercity transport facilities, the case affirming the judgment below that it is reasonable to calculate the average floor area ratio by the weighted average method divided by the total area after adding all values obtained by multiplying the floor area ratio

[1] Articles 36(1) and 76(1) of the National Land Planning and Utilization Act, Article 71(1)8 [Attachment Table 9] subparag. 1(a) of the Enforcement Decree of the National Land Planning and Utilization Act are the buildings that can be constructed within general commercial areas, and multi-unit houses and buildings combined for non-residential purposes under [Attachment Table 1] subparag. 2 of Article 3-4 of the Enforcement Decree of the Building Act, and the total floor area area of multi-unit houses is less than 90% of the total floor area (if the urban planning municipal ordinance prescribes a separate rate within the limit of less than 90%, it shall be limited to less than that of multi-unit buildings) (hereinafter referred to as “multi-unit buildings”). In full view of the language and text of the above provision, the main multi-unit buildings include multi-unit houses and multi-unit houses; the purpose of imposing metropolitan transport facility charges on a person who causes traffic demand in metropolitan areas is to impose metropolitan transport charges in proportion to the construction or improvement of land for multi-unit buildings.

[2] In a case where the competent Mayor calculates "average floor area ratio of a site where multi-family housing is constructed" under Article 16-2 (2) 1 of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Presidential Decree No. 22627, Jan. 17, 201) by simply dividing the floor area ratio of each special-purpose area into the number of special-purpose areas, and imposes charges for intercity transport facilities on the implementer of an urban development project, the case affirming the judgment below that it is reasonable to calculate the average floor area ratio by the weighted average weighted average method, which divides the floor area ratio into the whole area of each special-purpose area, on the grounds that, in calculating the average floor area ratio by the above method, the floor area ratio is extremely limited to the area of each special-purpose area with high floor area without considering the area of each special-purpose area, even if the floor area ratio is extremely limited to the total area of each area

[1] Article 11 subparag. 2, Article 11-2(2)4, and Article 11-3(1)1 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (Amended by Act No. 9389, Jan. 30, 2009); Article 16-2(2)1 of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (Amended by Presidential Decree No. 22627, Jan. 17, 201); Articles 36(1) and 76(1) of the National Land Planning and Utilization Act; Article 71(1)8 [Attachment Table 9] subparag. 1(a) of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas / [2] Article 16-2(2)1(a) of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (Amended by Presidential Decree No. 22627, Jan. 17, 2011>

Gangnam-gu Urban Development Project Cooperatives (Law Firm Rate, Attorneys Park Jong-sik et al., Counsel for the plaintiff-appellant)

Ulsan Metropolitan City Mayor (Government Law Firm Corporation, Attorneys Gu Dong-Bed et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2009Nu5718 decided February 12, 2010

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

According to subparagraph 2 of Article 11, Article 11-2 (2) 4, and Article 11-3 (1) 1 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 9389, Jan. 30, 2009; hereinafter “former Special Act”), an urban development project implementer under the Urban Development Act, which is implemented within the urban planning area, under the Urban Development Act, shall pay an amount calculated by the formula of “ [standard development cost per square meter 】 development rate 】 development area 】 deducted area ? deducted amount ? 0.5] 】 as charges for intercity transport facilities. Furthermore, according to Article 16-2 (2) 1 of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Presidential Decree No. 22627, Jan. 17, 201; hereinafter “former Enforcement Decree of the Special Act”), among multi-unit houses, the floor area ratio in the above formula is either constructed within a district or a project area or approved under Article 16(1).

However, Articles 36(1) and 76(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), Article 71(1) subparag. 8 [Attachment 9] subparag. 1(a) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning Act”), include buildings that can be constructed within the general commercial area of this case and complex buildings with apartment houses and non-residential purposes under subparag. 2 of Article 3-4 [Attachment 1] of the Enforcement Decree of the Building Act (if the urban planning municipal ordinance separately prescribes the ratio within the scope of less than 90% in total floor area, it is limited to multi-unit buildings with multi-unit houses under the premise that multi-unit houses include multi-unit houses, and the purpose of imposing charges for metropolitan transportation facilities to urban development business operators in proportion to the construction or improvement of the land area ratio of multi-unit houses under Article 16 of the former Enforcement Decree of the Special Act is to impose an average floor area ratio under Article 2 subparag. 1(1) of the Act. 6).

The judgment of the court below to the same purport is just in accordance with the above legal principles, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the scope of “the site where multi-family housing is constructed” under Article 16-2(2)1

2. As to the Defendant’s ground of appeal

A. As to grounds of appeal Nos. 1 and 2

Article 16-2 (3) of the Enforcement Decree of the former Special Act provides that the competent Mayor/Do Governor may apply the maximum of the floor area ratio prescribed by municipal ordinance of the Special Metropolitan City, a Metropolitan City, a Si, or a Gun pursuant to Article 78 of the National Land Planning and Utilization Act, if a project implementer is unable to calculate the average floor area ratio under paragraph (2) within 60 days from the date on which the approval or authorization for the relevant project is obtained. Article 46 [Attachment Table 24] 1 of the Urban Planning Ordinance of Ulsan Metropolitan City, which was enacted by delegation, provides that the floor area ratio of a general commercial area shall be 1,200%. Meanwhile, Article 29 [Attachment Table 8] of the Enforcement Decree of the National Land Planning and Utilization Act provides that the apartment house area of a main complex building constructed within a general commercial area under the proviso to subparagraph 1 (a) of subparagraph 1 of [Attachment Table 9] of the Enforcement Decree of the National Land Planning and Utilization Act shall be less than 80% of the total floor area. In addition, Article 46 [Attachment 244] 1]

According to the reasoning of the judgment below, the court below determined that in calculating the "average floor area ratio of the site where multi-unit housing is constructed" under Article 16-2 (2) 1 of the Enforcement Decree of the Special Act on the ground that the floor area ratio among the formula of charges for metropolitan transportation facilities in this case under Article 16-2 (2) of the Enforcement Decree of the former Special Act provides that the average floor area ratio of the site where multi-unit housing or detached housing is constructed shall apply in proportion to the floor area ratio based on the housing unit. Thus, in the case of a multi-unit building constructed in the general commercial area of this case, only 80 percent of the floor area ratio of the site where multi-unit housing is constructed may increase traffic demand.

Furthermore, the lower court determined that the maximum floor area ratio stipulated in Article 16-2(3) of the Enforcement Decree of the former Special Act on Quasi-residential Areas should be 250%, not the general standard but the strengthened standard.

In light of relevant statutes and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the calculation of "average floor area ratio of the site where multi-family housing is constructed" under Article 16-2 (2) 1 of the Enforcement Decree of the former Special Act as alleged in the grounds of

B. Ground of appeal No. 3

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found facts as stated in its reasoning, determined that in calculating the "average floor area ratio of the site where apartment houses are constructed" under Article 16-2 (2) 1 of the Enforcement Decree of the former Special Act, the method of calculating the floor area ratio by simply dividing the floor area ratio of each specific use area by the number of specific use areas shall be reasonable, because the floor area ratio is extremely limited to the area of each specific use area due to the failure to take into account the floor area ratio of all other specific use areas, even if the floor area ratio is extremely limited to the area of the whole project area, the calculation of the floor area ratio has a significant impact on the calculation of the floor area ratio, or in opposing cases, there is an unreasonable

In light of relevant Acts and subordinate statutes and records, such determination by the court below is just, and there is no error in the misapprehension of legal principles as to the calculation of the average floor area ratio of the site where multi-family housing is constructed under Article 16-2 (2) 1 of the Enforcement Decree of the former Special Act, as

3. Conclusion

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

Justices Shin Young-chul (Presiding Justice)