[1] Whether a project for the development of a Bogeumjari Housing District under a special Act on the Construction of Bogeumjari Housing, etc. is included in a project subject to charges for metropolitan transport facilities under Article 11(1) of the former Special Act on the Management of Metropolitan Transport in Metropolitan Areas (negative)

[2] Legislative intent of the proviso of Article 11 subparag. 4 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas, and whether a housing construction project implemented in the Bogeumjari Housing District constitutes a project subject to the exclusion of charges for intercity transport facilities under the proviso of Article 11 subparag. 4 of the former Special Act on

[1] Article 11 subparag. 1, 3, and 4 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (Amended by Act No. 11366, Feb. 22, 2012); Article 32(1) of the former Special Act on the Construction of Bogeumjari Housing, Etc. (Amended by Act No. 12251, Jan. 14, 2014); Article 11 subparag. 4 (see current Article 11-2(1)1) of the former Special Act on the Management of Intercity Transport in Metropolitan Areas) / [2] Article 11 subparag. 4 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (Amended by Act No. 11366, Feb. 22, 2012)

Samsung C&T Co., Ltd. (former trade name before the change) (Law Firm Sejong, Attorneys Kim Min-soo et al., Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Attorney Seo-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Nu60312 decided September 23, 2016

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

The grounds of appeal are examined.

1. A. Article 11 of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 11366, Feb. 22, 2012; hereinafter “Wide-Area Transport Act”) provides that “A person who carries out any of the following projects in a metropolitan area prescribed by Presidential Decree among metropolitan areas shall pay charges for intercity transport facilities to construct and improve intercity transport facilities, etc.” In addition, housing site development projects under the Housing Site Development Promotion Act (No. 1), housing site development projects under the Housing Act (No. 3), housing site development projects under the Housing Act, housing construction projects under the Housing Act (No. 4), etc. are listed as the project subject to charges:

However, Article 11 of the former Special Act on the Construction of Bogeumjari Housing, etc. (amended by the Special Act on the Construction of Public Housing, Etc. (amended by Act No. 12251, Jan. 14, 2014; hereinafter “the Bogeumjari Housing Act”) does not stipulate the same as the Act on the Construction of Bogeumjari Housing, etc. as the grounds for the project subject to the imposition

According to such laws and regulations, it is reasonable to view that a Bogeumjari Housing Zone development project under the Bogeumjari Housing Act is not included in a project subject to the imposition of metropolitan transport charges under Article 11 of the Intercity Transport Act. The reasons are as follows.

Administrative laws and regulations, which serve as the basis for an indive administrative disposition, shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in the direction unfavorable to the other party to the administrative disposition, and even in cases where a teleological interpretation is permitted taking into account the legislative intent, purpose, etc. of such administrative laws and regulations, such a teleological interpretation shall not go beyond the ordinary meaning of the language and text thereof (see, e.g., Supreme Court Decision 2014Du47686, Nov. 24, 2016). Article 11 of the Intercity Transport Act does not provide for the Act on the grounds of the business subject to the imposition of charges for metropolitan transport facilities, while interpreting that the said business is subject to the imposition of charges for metropolitan transport facilities should be excessively expanded

In addition, Article 18 (1) 28 of the Bogeumjari Housing Act provides that the operator of a Bogeumjari Housing project shall be deemed to have obtained authorization under other Acts if the main authorization or permission is granted, and it does not necessarily apply to all the provisions of other Acts premised on the authorization or permission granted under other Acts (see, e.g., Supreme Court Decisions 2004Da19715, Jul. 22, 2004; 2014Du47686, Jul. 22, 2004). Article 18 (1) 28 of the Bogeumjari Housing Act provides that the project operator of a Bogeumjari Housing project shall be deemed to have obtained approval of a project plan under the Housing Act, but it is difficult to deem that all the provisions of the Housing Act apply to the deeming that the approval of a project plan under the Housing Act has been obtained with the approval of a project plan under the Bogeumjari Housing Act.

In addition, Article 32 (1) of the Bogeumjari Housing Act provides that the Housing Site Development Promotion Act shall apply to the creation of the Bogeumjari Housing District and the supply of land developed. However, the aforementioned provision alone does not constitute a special law of the Housing Site Development Promotion Act or a housing site development project for the Bogeumjari Housing District under the Housing Site Development Promotion Act.

B. Article 11 Subparag. 4 proviso of the Intercity Transport Act provides that “Where a housing construction project under the Housing Act carries out any of subparagraphs 1 through 3 in a district, district, or project area where the project is carried out, it shall be excluded from the subject of imposition of charges for intercity transport facilities.”

The purpose of the above proviso is to prevent double imposition of charges by preventing double imposition of charges for metropolitan transport facilities in cases where a project subject to imposition of charges for metropolitan transport facilities is implemented in the same area in subsequent order.

Thus, in order to be exempted from the charges for metropolitan transport facilities, the projects implemented later should fall under the "projects falling under subparagraphs 1 through 3 of Article 11 of the Intercity Transport Act".

C. Ultimately, a Bogeumjari Housing District development project under the Bogeumjari Housing Act does not fall under a project subject to metropolitan transport facility charges prescribed in subparagraphs 1 through 3 of Article 11 of the Intercity Transport Act. Therefore, a housing construction project implemented in a Bogeumjari Housing District shall be deemed not likely to fall under a project subject to the exclusion of metropolitan transport facility charges under the proviso to Article 11 subparagraph 4 of the Intercity Transport Act

2. The lower court acknowledged the following facts.

A. On September 20, 201, the Korea Land and Housing Corporation (Korea Land and Housing Corporation) sold the instant site, which is part of the instant Bogeumjari Housing District, to the Plaintiff in order to prepare project costs on September 20, 201.

B. On January 20, 2012, the Plaintiff filed an application with the Defendant for approval of the housing construction project plan under the Housing Act that constructs and supplies 20 apartments and ancillary and welfare facilities to the Defendant on the instant site, and obtained approval from the Defendant on March 27, 2012, and carried out the instant housing construction project.

C. On March 26, 2014, the Defendant issued the instant disposition that imposed KRW 2,487,229,000 on the instant housing construction project pursuant to Articles 11 and 11-3 of the Intercity Transport Act on the Plaintiff.

3. Examining such facts in light of the legal principles as seen earlier, the instant housing construction project implemented within the Bogeumjari Housing District falls under the business subject to the imposition of metropolitan transport facility charges under Article 11 subparag. 4 of the Intercity Transport Act, but the Korea Land and Housing Corporation, which was implemented by the Korea Land and Housing Corporation under the Bogeumjari Housing Act, does not fall under the business subject to the imposition of metropolitan transport facility charges as stipulated in the Intercity Transport Act. Accordingly, the Plaintiff’s charges for metropolitan transport facilities for the instant housing construction project may not be exempted pursuant to the proviso to Article 1

4. Nevertheless, solely on the grounds indicated in its reasoning, the lower court erred by misapprehending that the instant Bogeumjari Housing District development project was included in the business subject to the imposition of the charges for metropolitan transport facilities under the Intercity Transport Act, and determined that the instant disposition imposing the charges for metropolitan transport facilities on the Plaintiff was unlawful on the ground that the Plaintiff’s instant housing construction project should be exempted pursuant to the proviso to Article 11 subparag. 4 of the Intercity Transport Act. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of the business subject to the charges

5. 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 Kwon Soon-il (Presiding Justice)