A. Whether Article 9(5) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13465, Sep. 13, 1991) which limits the scope of application under Article 10(3) of the Restitution of Development Gains Act, which provides that the land value at the time of commencement of the development project may be calculated by the purchase price (affirmative)

B. The legal nature of Article 4 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Construction and Transportation No. 495 of Nov. 29, 1991), which provides that a report on the transaction of the purchase price shall be submitted within 15 days from the date of obtaining authorization of completion, etc. (=administrative rules) and the final time when it is possible to prove the purchase

C. In the case of a development project to which Article 2(2) of the Addenda of the Enforcement Decree of the same Act applies, whether the land price at the time of commencing the development project shall be calculated based on the officially announced land price, regardless of

A. Article 9(5) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13465, Sep. 13, 191) clearly purports to limit the scope of application of Article 10(3) of the Restitution of Development Gains Act, which limits the purchase price at the time of commencement of a development project so that the value of the land subject to the imposition of the development charges can be calculated based on the purchase price by clarifying the purchase price. Thus, the purpose of Article 9(5) of the same Enforcement Decree is to limit the scope of application of Article 10(3) of the Restitution of Development Gains Act to cases of subparagraphs 1 through 4 of the same Article where the report of purchase price can be objectively correct. Thus, it is valid only when there is a restriction on the rights of the people or the delegation of the mother law as a violation of the proviso of Article 10(3) of the Act. Thus, even if a development project operator does not fall under any of subparagraphs 1 through 4 of Article 9(5) of the same Enforcement Decree, the same Act, the land subject to the commencement of a development project can be calculated only based on the purchase price.

B. Article 4 of the Enforcement Rule of the same Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 495 of Nov. 29, 191) which provides that a development project operator shall submit a transaction report on the purchase price of the land subject to development charges concerning actual transactions to the head of Si/Gun within 15 days from the date of obtaining authorization for completion of construction works, etc. shall have the nature of a simple administrative rule, which is a procedural rule prepared to promote administrative convenience for prompt and accurate imposition and collection of development charges, and therefore, even if the development project operator reported purchase price after the expiration of the reporting period stipulated in the Enforcement Rule, it shall not be deemed that the land price at the time of commencement of the development project subject to development charges cannot be calculated by applying the purchase price, and the

C. Article 2(2) of the Addenda of the Enforcement Decree of the same Act does not explain the purchase price in calculating the land price subject to the imposition of development charges at the time of development commencement pursuant to the proviso of Article 10(3) of the same Act, and it shall be deemed that the method of calculating the land price should be determined by the officially announced land price pursuant to the main sentence of Article 10(3) of the same Act. It shall be interpreted that the above provision does not necessarily purport that the land price at the time of development commencement should be determined by the officially announced land

A. Article 10(3) of the Restitution of Development Gains Act, Article 9(5)(b) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13465, Sep. 13, 191); Article 4(c) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 495, Nov. 29, 191); Article 2(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13465, Sep. 13, 1991)

Supreme Court Decision 92Nu16812 delivered on May 14, 1993

[Defendant-Appellee] Korea Housing Corporation (Attorney Kim Ba-young, Counsel for defendant-appellee)

Attorney Lee Jae-soo et al., Counsel for the defendant

Busan High Court Decision 91Gu3024 delivered on July 22, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

1. According to Article 8 of the Restitution of Development Gains Act (hereinafter referred to as the “Act”), the standards for imposition of development charges shall be the amount calculated by deducting the land value subject to imposition at the time of commencement of the development project, the increase in normal land prices during the execution period, and development costs from the land value subject to imposition at the time of completion of the development project. Of these, Article 10 (3) of the Act concerning the methods for calculating the land value subject to imposition at the time of commencement of the development project, the value of the land subject to imposition at the time of commencement of the development project shall be the amount calculated by summing up the increase in normal land prices from the base date of the officially announced land value at the time of commencement to the time of commencement of development: Provided, That if a project operator vindicates that the purchase price of the land subject to imposition (including the price paid for any obstacle to the land fixed

However, Article 9 (5) of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13465 of Sep. 13, 191; hereinafter referred to as the "Enforcement Decree") provides that the case where the purchase price of the land subject to imposition under the proviso of Article 10 (3) of the Act is explained shall be the case where the project operator reports the transaction price under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation in any of the following cases: (1) the case where the purchase is made by auction or bidding (2) the local government or government-invested institution under the Act on the Utilization and Management of the National Territory(3) and the case where the purchase is made by the State, local government, government-invested institution, etc. (4). Article 4 of the Enforcement Rule of the same Act (amended by Presidential Decree No. 495 of Nov. 29, 191; hereinafter referred to as the "Enforcement Rule") provides that the person who intends to report the transaction price under the provisions of Article 9 (5) of the Decree shall submit the report on the transaction price within 15 days.

2. First, we examine whether Article 9(5) of the Enforcement Decree violates the proviso of Article 10(3) of this Act.

The development charges system originally prepared by the Restitution of Development Gains Act is designed to realize economic justice, prevent speculation in land, and promote the efficient utilization of land (see Articles 1 through 4 of the Act) in calculating the development gains, which are the premise for calculating the development charges to be imposed and collected by the development project implementers, through a reasonable method as possible, in order to fairly calculate the development gains that are actually gained by the persons subject to the imposition of the development charges, through the next reasonable method, in order to be close to the realestest to the actual reality, in the event that the land prices of the land subject to the development projects have increased due to the increase in the prices of the land subject to the development projects and the rise in normal land prices have occurred.

In light of the purpose of the development charges system, if the development project operator vindicates the purchase price in calculating the value of the land subject to the imposition of the development charges at the time of completion of the development project in order to calculate the development gains, the proviso of Article 10 (3) of the Act opened a way to calculate the purchase price on the basis of the purchase price will be reasonable in line with the purpose of this system.

However, the purpose of Article 9(5) of the Enforcement Decree is to limit the scope of application of Article 10(3) of the Act, which allows the calculation of the value of the land subject to development charges at the time of commencing a development project based on the purchase price by explaining the purchase price, to cases falling under subparagraphs 1 through 4 of Article 10 of the Enforcement Decree, and thus, it is clear that the report of purchase price can be objectively correct, by limiting the scope of application of Article 10(3) of the Act, and thus, it is valid only when the parent law is delegated as an enforcement decree that limits the rights of the people or infringes on the interests of the people. Thus, Article 9(5) of the Enforcement Decree is invalid because there is no ground for any delegation of the parent law, including the proviso of Article 10(3) of the Act. Therefore, even if the development project operator does not fall under subparagraphs 1 through 4 of Article 9(5) of the Enforcement Decree, it shall be deemed that the land subject to development charges at the time of commencing a development project can be calculated on the basis

3. The following shall be viewed as regard the nature of Article 4 of the Enforcement Rule:

The proviso of Article 10 (3) of this Act provides that when calculating the land value subject to the development charges at the time of commencement of a development project, the development project operator may be calculated by clearly explaining the purchase price, and thus, in order to smoothly perform the affairs related to the imposition and collection of the development charges to which the provision applies, a procedural provision should be prepared to clarify the purchase price.

From this point of view, Article 4 of the Enforcement Rule which provides that a development project operator shall submit a transaction report on the purchase price of land subject to development charges on actual transactions within 15 days from the date of obtaining authorization of completion, etc., to the head of the Si/Gun, shall be deemed to have the nature of a simple administrative rule, which is a procedural provision prepared to promote the administrative convenience for prompt and accurate imposition and collection of development charges, and therefore, even if the development project operator reported purchase price after the expiration of the reporting period stipulated in the Enforcement Rule, the land price at the time of commencement of the development project subject to the development charges cannot be calculated by applying the purchase price. The proof of purchase price shall be deemed to be possible until the completion of the lawsuit

4. In addition, as in this case, Article 2 of the Addenda of the Enforcement Decree of the Act provides that the project subject to the imposition of development charges under Article 5 of the Act has not been completed at the time of the enforcement of this Act ( January 1, 1990), shall also be subject to the application of this Act. In this case, the enforcement date of this Act shall be deemed to be the time of commencement of the relevant development project. Article 2 (2) of the Addenda of the Enforcement Decree provides that the land price at the time of commencement of the development project to calculate the charges for the development project subject to the application of this Act under Article 2 of the Addenda of the Act shall be the amount calculated by subtracting the increase in normal increase in land prices until the commencement of the development project from the price calculated by the officially announced land price at the time of commencement of the development project ( March 2, 1990). Article 2 (2) of the Addenda of the Enforcement Decree of the Act provides that in calculating the land price subject to the imposition of development charges at the time of commencement of the development project, the purchase price shall not be interpreted at the existing price.

5. Thus, the court below's listing of the case where the purchase price of the land subject to the imposition can be explained under Article 9 (5) of the Enforcement Decree shall be deemed to be an exemplary list, and Article 9 (5) of the Enforcement Decree and Article 4 of the Enforcement Decree of the same Act which requires the project operator to submit a transaction price report to the head of Si/Gun for the reduction of purchase price is merely a voluntary and procedural provision for the smooth imposition of development charges. Article 2 (2) of the Addenda of the above Enforcement Decree applies only to the case where the price of the land subject to the commencement of the development project shall be calculated based on the officially announced land price because the project operator fails to vindicate the purchase price of the land subject to the imposition, and it is reasonable to interpret that the above land is calculated based on the nature of the land subject to the imposition of the development charges and the price of the land subject to the imposition of the development charges under Article 33 of the Housing Construction Promotion Act after the head of Busan Special Metropolitan City City and the head of Busan Metropolitan City to construct the apartment as the site. This conclusion is without merit in the conclusion that the Defendant's land price of the development project.

6. 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.

Chief Justice Kim Yong-ju (Presiding Justice) (Presiding Justice)