Whether the development project subject to development charges is a development project where the land category of the existing parking lot is changed from ‘pre-use' or ‘road' after obtaining permission for change of the form and quality of the land for the purpose of construction (negative)

Article 5(1)1 of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995); Article 4(1) [Attachment 1] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996); Article 3-2(6) [Attachment 2] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 93 of Feb. 15, 1997); to constitute a development project subject to the change of the form and quality of land under the Urban Planning Act (amended by Ordinance No. 93 of the Ministry of Construction and Transportation of Feb. 15, 1997); however, if the project subject to the change of the form and quality of land is not a site due to an act of changing the form and quality of land which is not a site due to the change of the form and quality of land before the permission is granted, it is not necessary to change the land category of land or install a building.

Article 5 (1) 11 of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995), Article 4 (1) [Attachment Table 1] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996), Article 3-2 (6) [Attachment Table 2] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 93 of Feb. 15, 1997)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)

School Foundation Same-sex Private Teaching Institutes (Attorney Park Jin-hoon, Counsel for defendant-appellant)

The head of Eunpyeong-gu Seoul Metropolitan Government

Seoul High Court Decision 95Gu12455 delivered on November 27, 1996

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

The court below determined as follows: (a) Article 5(1)11 of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995; hereinafter the same shall apply) and Article 4(1) [Attachment 1] of the Enforcement Decree of the Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996); (b) Article 3-2(6) of the Enforcement Decree of the Act (amended by Ordinance of the Ministry of Construction and Transportation No. 93 of Feb. 15, 1997; hereinafter the same shall apply) that a project implemented by the permission of change of the form and quality under the Urban Planning Act is a development project subject to the imposition of development charges; (c) the land which is not a site due to the act of changing the form and quality of the land; (d) the land which is the original site should be included in the construction works to enhance the utility of the building; or (d) the change of the land category and quality of the land is not necessary to construct permit.

In light of the records and relevant Acts and subordinate statutes, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the business subject to the imposition of development charges. Therefore, the grounds for

Meanwhile, as to the remaining grounds of appeal on the illegality of the officially assessed individual land price, which served as the basis for calculating the land price at the end of imposition, the lower court’s determination that the instant disposition was unlawful is no longer necessary.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)