2015Du36379. Invalidity, etc. of the imposition of charges for school sites

Korea Land and Housing Corporation

1. The head of Nam-gu Incheon Metropolitan City;

2. The Nam-gu Incheon Metropolitan City.

Seoul High Court Decision 2014Nu52109 Decided December 19, 2014

November 24, 2016

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

The grounds of appeal are examined.

1. Article 2 subparagraph 2 of the former Act on Special Cases concerning the Creation, Development, and Supply of School Sites for Public Elementary Schools, Middle Schools, and High Schools (amended by Act No. 13006, Jan. 2015; hereinafter referred to as the "Act on Special Cases concerning the Securing of School Sites") provides that "development projects" means projects implemented pursuant to the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Act on the Maintenance and Improvement of Urban Areas, the Housing Site Development Promotion Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act, which provide for special cases concerning the creation, development, and supply of school sites for public elementary schools, middle schools, and high schools; and "charges for school sites" referred to in subparagraph 3 of the same Article refers to expenses collected from development projects by the Special Metropolitan City Mayor, Metropolitan City Mayors, Do Governors, or the Governor of a Special Self-Governing Province in order to secure school sites or to extend schools located near where procuring school sites is impossible."

In addition, Article 35 (4) of the former Special Act on the Construction of Bogeumjari Housing, Etc. (amended by Act No. 11690, Mar. 23, 2013; hereinafter referred to as the "Stong Space Act") provides that when a project plan is approved pursuant to paragraph (1) or (2), a building permit under Article 11 of the Building Act (No. 1) and a permission for an act under Article 6 of the Housing Site Development Promotion Act (No. 21) shall be deemed to have been obtained.

2. The lower court acknowledged the fact that the Plaintiff implemented a project for the development of the Incheon Western-2 Bogeumjari Housing District and the construction of the Bogeumjari Housing (hereinafter “instant project”) with the approval from the Minister of Land, Transport and Maritime Affairs for the alteration of the district plan and the alteration of the project plan, and the head of Nam-gu Incheon Metropolitan City imposed charges for each school site on the Plaintiff regarding the sold housing among the six blocks of the instant project district under Articles 5(1) and 5-2 of the School Sites Act on August 8, 2013 (hereinafter “instant disposition”).

Then, the lower court determined that the instant disposition imposing school site charges under the School Site Act is lawful, in full view of the following: (a) the construction permission under the Building Act, the permission for acts under Article 6 of the Housing Site Development Promotion Act, etc. is deemed to have been granted when a project plan or any revision thereto has been approved pursuant to the Bosp Act; and (b) the relevant provisions (Articles 32 and 40) apply mutatis mutandis to the development of a housing zone and the supply of land created, among the matters not prescribed in this Act, to the development of a housing zone and the construction, supply, and management of Bogeumjari Housing, and to the construction, supply, and management of Bogeumjari Housing, etc.; and (c) the construction permission, etc. is deemed to have been granted with approval for modification of a project plan with a scale exceeding 100 households pursuant to the Bosppp Act.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. Administrative laws and regulations, which serve as the basis for an indivative administrative disposition, shall be interpreted and applied strictly, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative disposition, and even in cases where a teleological interpretation is allowed taking into account the legislative intent, purpose, etc. of such administrative laws and regulations, such interpretation shall not deviate

In addition, in a case where any Act stipulating the matters concerning the principal authorization and permission provides that the principal authorization and permission is deemed to have been obtained pursuant to other Acts, the principal authorization and permission is deemed to have been obtained pursuant to other Acts, and it does not apply to all the provisions of other Acts premised on the authorization and permission obtained pursuant to other Acts (see Supreme Court Decision 2004Da19715, Jul. 22, 2004).

B. Article 2 subparag. 2 of the School Sites Act does not stipulate the law on the place of a project subject to imposition of school site charges as the basis for the project subject to imposition. In addition, Article 35(4) of the Boi-si Act provides that a project plan is approved for a Bogeumjari housing, a building permit under the Building Act shall be deemed to have been granted. This is deemed to have been granted a building permit, etc., upon obtaining approval for a project plan for a Bogeumjari housing under the Boi-si Act. Furthermore, it is difficult to deem that all the provisions of the Building Act, such as the Building Act premised upon obtaining such permission, etc. under the Boi-si Act are applicable. Accordingly, an industrial complex development project under the Boi-si Act shall not be deemed to be included in a development project subject to imposition of school site charges under Article 2 subparag. 2 of the School Sites Act, and construing that it is included in a development project subject to imposition of school site charges, and thus, it is not allowed to extend or analogically interpret the provisions on imposition of school site charges in the direction unfavorable to the other party. Nevertheless.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee