[1] The nature of Article 21-2 of the Enforcement Decree of the former Act on the Ownership of Housing Site

[2] Whether it is reasonable to extend the period of obligation for use and development to the extent of the existence of the circumstance in the case of a site for a site for which Article 20 (1) 3 of the Act and Article 9-2 of the Enforcement Rule of the same Act are stipulated (affirmative)

[3] The case holding that a construction cannot be included in the mandatory period for use and development, since an urban design district is designated as an urban design district and its urban design is not publicly announced

[1] Article 21-2 of the former Enforcement Decree of the Housing Site Ownership (amended by Presidential Decree No. 13882 of May 10, 1993) shall be deemed not a restrictive and listed provision, but an exemplary provision. Therefore, if there are objective circumstances to deem it reasonable to extend the period of the duty of use and development even if it does not fall under the grounds stipulated in Article 21-2 of the Enforcement Decree of the same Act, the extension of the period of the duty of use and development by analogy of the purport of the above provision is reasonable.

[2] Article 20 (1) 3 of the Act on the Ownership of Housing Sites stipulates that the construction of housing is prohibited or de facto impossible under the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, and Article 9-2 of the Enforcement Rule of the same Act stipulates that the construction of housing is not possible under the latter part of Article 20 (1) 3 of the same Act. In light of the purport of the above provisions and the principle of equity, unless there are special circumstances, it is reasonable to extend the period of the duty to use and develop the housing site (Article 9-2 (1) 2 of the Enforcement Rule of the same Act refers to the urban design district under the Enforcement Rule of the Urban Planning Act and the urban design district under the Urban Planning Act, and it is reasonable to extend the period of the duty to use and develop the housing site to the extent that such circumstances exist.

[3] In light of the purport of each provision of Article 20(1)1 and 3, Article 18(1), and Article 9-2 of the Enforcement Rule of the Act on the Ownership of Housing Sites, the period for which construction is de facto impossible because it is designated as an urban design district and its urban design is not publicly announced shall not be included in the period of obligation for use and development, and if the period is not included in the period of obligation for use and development from the enforcement date of the same Act until the above urban design is publicly announced, the housing site in this case should be excluded from the subject of imposition on the housing site because it falls under the housing site which is still within the period of obligation for use and development, and thus

[1] Articles 18, 19, and 20 of the Act on the Ownership of Housing Sites; Articles 21 and 21-2 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882 of May 10, 193) / [2] Articles 20(1)1 and 3, and 18(1) of the Act on the Ownership of Housing Sites; Article 21-2 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882 of May 10, 193); Article 9-2 of the Enforcement Rule of the Act on the Ownership of Housing Sites / [3] Articles 20(1)1 and 3, and 18(1) of the Act on the Ownership of Housing Sites; Article 21-2 of the former Enforcement Decree of the Act on the Ownership of Housing Sites; Article 28-2 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 1382 of May 10, 193)

[1] [2] Supreme Court Decision 94Nu1999 delivered on August 26, 1994 (Gong194Ha, 2543) Supreme Court Decision 94Nu6277 delivered on December 22, 1994 (Gong195Sang, 685)

Plaintiff

The head of Jung-gu Seoul Metropolitan Government

Seoul High Court Decision 93Gu20872 delivered on February 24, 1994

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

We examine the grounds of appeal.

1. According to the provisions of subparagraph 1 of Article 19 and Article 20 (1) subparagraph 1 of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act"), a charge for excess ownership (hereinafter referred to as the "charges") shall be imposed on a housing site for each household in excess of the upper limit of the ownership of each household, and Article 18 of the Act shall be excluded from the subject of the charge. Article 18 (1) of the Act provides that a person who acquires a housing site in excess of the upper limit of the ownership by a household with permission for the acquisition of a housing site under the provisions of Articles 10 and 13 through 15 shall use and develop the relevant housing site within the limit of five years from the date of acquisition within the compulsory period for use and development as prescribed by the Presidential Decree, and Article 21-2 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 1382, May 10, 193; hereinafter referred to as the "former Enforcement Decree") provides that the period of use and development is limited by Article 2121-21 of the Building Act.

The purport of the above legislation is that no charge shall be imposed for the two-year period of the duty to use and develop a housing site by permission, etc. for the acquisition of a housing site is to grant a two-year grace period to a person who has acquired a housing site exceeding the upper limit of the ownership of each household according to the use plan. On the other hand, the special provision on calculating the period of duty to use and develop a housing site is to guarantee a grace period that is excluded from the subject of the charge by extending the period of duty to use and develop the housing site for the limited period if it is impossible to use and develop the housing site due to objective reasons such as the restriction on the use permission. In light of the purport of each above provision, Article 21-2 of the former Enforcement Decree of the Act shall be deemed as an exemplary provision, not a restrictive and listed provision, and therefore, if there are objective circumstances to deem it reasonable to extend the period of duty to use and develop the housing site, it is reasonable to interpret the purport of the above provision.

2. In addition, Article 20 (1) 3 of the Act provides that a site excluded from the imposition of a charge is a site where the construction of a house is prohibited or substantially impossible under the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, and Article 9-2 of the Enforcement Rule of the same Act (hereinafter referred to as the "Enforcement Rule") provides that a site where construction of a house is de facto impossible under the latter part of Article 20 (1) 3 of the Act shall not be constructed. In light of the purport of the above provisions and the principle of equity, unless there are special circumstances, if a site (Article 9-2 (1) 2 of the Enforcement Rule refers to a site within an urban design district under the Enforcement Rule of the Urban Planning Act and the urban design district for which the urban design has not been publicly announced, it is reasonable to extend the period of the duty to use and develop the site, and it is reasonable to extend the period of the duty to use and develop the site to the extent that such circumstances exist.

3. According to the reasoning of the judgment below, the court below recognized the fact that the plaintiff acquired and shared the land in Seocho-gu Seoul ( Address 1 omitted) and ( Address 2 omitted) (hereinafter referred to as "the site in this case") with his wife prior to the enforcement of the Act. The site in this case was designated as an urban design district on February 4, 1987 and publicly announced an urban design on August 30, 191. The defendant did not recognize the extension of the mandatory period for use and development as of March 2, 1992 to June 1 of the same year without recognizing the extension of the mandatory period for use and development from the date when the above urban design was announced to the date when the urban design in this case was announced, and further determined that the period subject to the imposition of the charge in this case was unlawful since it did not fall under the mandatory use period until the date when the urban design was not included in the construction development period, and thus, it did not fall under the period of the above mandatory use.

The above judgment of the court below is justifiable as it is in accordance with the above legal principles, and there is no error of law as to the interpretation of Article 21-2 of the former Enforcement Decree, as discussed. There is no reason to discuss.

4. Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)