[1] In a case where a person liable to pay infrastructure charges directly installs infrastructure and becomes owned by the State or a local government, and where an urban planning facility decision-making procedure or permission for development has been granted under the provisions of other Acts in the course of construction of infrastructure, whether the relevant amount of infrastructure installation costs should be deducted from the infrastructure charges (affirmative), and whether the person liable to pay the infrastructure charges should undergo the determination procedure

[2] The purport that Article 7(3)3 of the former Enforcement Decree of the Infrastructure Charges Act does not apply to Article 8(5) of the former Infrastructure Charges Act

[1] Article 8 (5) of the former Infrastructure Charges Act (amended by Act No. 8663 of Oct. 17, 2007) / [2] Article 8 (5) of the former Infrastructure Charges Act (amended by Act No. 8663 of Oct. 17, 2007); Article 7 (3) 3 of the former Enforcement Decree of the Infrastructure Charges Act (amended by Presidential Decree No. 20536 of Jan. 8, 2008)

petitioner Construction Co., Ltd. and two others (LLC, Kim & Lee LLC, Attorneys Oi-seok et al., Counsel for the defendant-appellant)

Goyang market (Law Firm TelviS, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu2779 decided July 15, 2010

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 8(5) of the former Infrastructure Charges Act (amended by Act No. 9051, Mar. 28, 2008; hereinafter “Act”) provides that “Where a person liable to pay payment installs an infrastructure directly through the procedure for determining urban planning facilities or permission for development pursuant to the provisions of other Acts, and the infrastructure becomes owned by the State or a local government, an amount equivalent to the relevant installation cost shall be deducted from the infrastructure charges.”

In light of the contents of the above provision and its legislative purport, the infrastructure charges, etc. are the amount imposed and collected to build the infrastructure caused by the construction act under Article 2 subparagraph 2 of the Act or to secure the site necessary therefor (Article 2 subparagraph 3 of the Act), if the person liable for payment installs the infrastructure directly and the infrastructure belongs to the State or local government, and the procedure for the determination of urban planning facilities or the permission for development activities under the provisions of other Acts in the course of construction of the infrastructure, it is reasonable to deduct the amount equivalent to the cost of installation of the infrastructure from the infrastructure charges. In this case, if the determination procedure of urban planning facilities or the permission for development activities is made lawfully in accordance with the provisions of other Acts, it is sufficient that the person liable for payment has to undergo the determination procedure of

According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially admitted by the lower court, the lower court determined that the Plaintiffs, a construction agent of this case, provided a site for infrastructure in accordance with an urban development project implementation plan authorized and publicly notified by the Goyang-si Notice No. 2007-299, July 24, 2007, pursuant to Articles 17 and 18 of the former Urban Development Act (amended by Act No. 8616, Aug. 3, 2007) and installed infrastructure on the ground, and all the infrastructure installed therein are owned by the State or a local government.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation of Article 8 (5) of the Act.

2. According to Article 8 (3) 2 of the Act and Article 7 (3) 3 of the former Enforcement Decree of the Infrastructure Charges under the delegation thereof (amended by Presidential Decree No. 21038 of Sep. 25, 2008; Presidential Decree No. 20536 of Jan. 8, 2008; hereinafter “Enforcement Decree”), in cases of construction activities with respect to "building constructed through construction activities within 10 years from the date of completion of development projects in land, such as an area, district, etc. developed by a person other than the State, a local government, a government-invested institution, or a local public enterprise, the area of infrastructure is more than 30/100 and less than 40/100, and where construction activities are conducted within 10 years from the date of completion of development projects, the charges for infrastructure shall be reduced by 50/100, but Article 8 (5) of the Act shall not apply in such cases.

In addition to the language and legislative intent of each of the above provisions, Article 8(3)2 of the Act provides for a mitigation provision based on the size of the infrastructure for private development, and Article 8(5) of the Act provides for different effects for each of the corresponding deductions for the amount of infrastructure installation costs, and does not provide for the priority order in application thereof. In light of the purport that Article 7(3)3 of the Enforcement Decree provides that Article 8(5) of the Act does not apply to cases where all of the two requirements of Articles 8(3)2 and 8(5) of the Act are met, it cannot be deemed that Article 8(5) of the Act does not apply in duplicate, and only the mitigation under Article 8(3)2 of the Act is excluded from the application of Article 8(5) of the Act and only the mitigation under Article 8(3)2 of the Act is permitted.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the relationship under Articles 8 (5) and 8 (3) 2 of the Act.

3. Conclusion

Therefore, all appeals are 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 Park Poe-young (Presiding Justice)