(영문) 서울행정법원 2014.1.7. 선고 2013구합13167 판결

The Defendant’s disposition of imposition of the overpopulation charge of KRW 9,953,915,080 against the Plaintiff on February 19, 2013, in excess of KRW 486,859,092, shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation established to engage in real estate development and supply, lease, wholesale and retail business, sales business, etc.

B. On February 19, 2013, the Defendant imposed KRW 9,953,915,080 on the buildings of 20 stories above 98,95.74 square meters above the ground and the buildings of 5 stories below the ground (hereinafter “instant buildings”) constructed by the Plaintiff on the ground of 60-8,754 square meters above the Geumcheon-gu Seoul Metropolitan Government, Geumcheon-gu, pursuant to Article 12 of the Seoul Metropolitan Area Readjustment Planning Act (see the evidence No. 8-4, hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 8-4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff transferred Nos. 501, 601, and 701 among the instant buildings (hereinafter “instant facilities”) to the Korea Industrial Complex Corporation. This constitutes the donation to the State pursuant to Article 3(8) of the Industrial Cluster Development and Factory Establishment Act and Article 43-2(3)1 of the Enforcement Decree of the same Act. However, the Defendant rendered the instant disposition on the instant facilities without the reduction of charges pursuant to Article 13 of the Seoul Metropolitan Area Readjustment Planning Act and Article 17 subparag. 3 of the Enforcement Decree of the same Act. Accordingly, the part for which the overpopulation charge on the instant facilities was not reduced or exempted is unlawful for the following reasons.

1) In light of the fact that the Korea Industrial Complex Corporation received the donation of the instant facilities from the Plaintiff to use them for the purpose of supporting occupant enterprises, such as expansion of infrastructure in an industrial complex, based on the management authority entrusted by the State (the Minister of Trade, Industry and Energy, the Minister of Trade, Industry and Energy prior to change of the name, and the Minister of Trade, Industry and Energy), and in light of the purport of the overconcentration charges system, there is no reason to regard the gratuitous concession of the instant facilities to the Korea Industrial Complex Corporation differently from the donation to the State, and the Plaintiff could not determine the party to the gratuitous concession of the instant facilities, and the fact that Geumcheon-gu and the Minister of Trade, Industry and Energy actually uses the instant facilities for public interest, the gratuitous concession of the instant facilities to the Korea Industrial Complex Corporation should be equally interpreted as the donation to the State. Therefore, the failure to reduce the overconcentration charges on the instant facilities donated to

2) Overconcentration charges are imposed to induce the achievement of national objectives such as overconcentration damage and balanced regional development. Since the instant facilities were provided to the Korea Industrial Complex Corporation, which is entrusted by the State for the sake of public interest, there is no reason for public interest to achieve the instant disposition. On the other hand, violation of the Plaintiff’s private interest is serious, so the instant disposition violates the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On September 19, 2009, the Korea Industrial Complex Corporation and Geumcheon-gu Seoul Metropolitan Government publicly announced a promotion plan for the expansion project of support facilities of the Seoul Digital Industrial Complex (2 complex), and accordingly, the Plaintiff, the owner of the above project site of the size of 60-8 large 12,754 square meters, Geumcheon-gu, Seoul, entered into a contract with the Korea Industrial Complex Corporation (2 complex) on January 8, 2010 to promote the expansion project of support facilities. The contents of the above contract were partially changed on May 11, 201, and revised on January 5, 201, as part of the amendment, supplement on January 5, 2012, supplement on March 8, 2013, renewal on March 5, 2013, and renewal on August 9 of the same year).

2) According to the above public announcement and contract, the Plaintiff newly constructed a building on the project site in order to expand support facilities for the Seoul Digital Industrial Complex (2 complex), and provided the net price difference among the land price difference arising from the change of use of the project site in kind to the Korea Industrial Complex Corporation.

3) Accordingly, the Plaintiff agreed to transfer the ownership of the instant facility to the Korea Industrial Complex Corporation without compensation in kind equivalent to KRW 10,744,352,50 of the net land price difference following the change of use of the project site (Articles 5 through 8 of the contract reflecting a partial change, supplement, and renewed portion). Meanwhile, the Korea Industrial Complex Corporation promised to sell the said facility to the Plaintiff after seven years from the date of receiving the facility from the Plaintiff if the Plaintiff wishes (Article 19 of the contract).

4) The Defendant imposed the overpopulation charge of KRW 9,971,681,240 on the premise that the Plaintiff’s application for approval for use of the building of this case was filed at the time of the Plaintiff’s application for approval for use of the building of this case, but imposed the overpopulation charge of KRW 9,955,334,760 on December 9, 2012 and KRW 9,951,039,70 on February 28, 2012, on the premise that the Plaintiff’s application for approval for use of the building of this case was 9,94.07 square meters of the total floor area of the building of this case, and on February 19, 2013, the Defendant changed the overpopulation charge of this case to KRW 9,953,915,080 on the Plaintiff on February 19, 2013.

5) On May 22, 2013, the Plaintiff transferred ownership of the instant building Nos. 501, 601, and 701 to the Korea Industrial Complex Corporation.

6) On October 18 of the same year, the Korea Industrial Complex Corporation entered into a loan agreement with Geumcheon-gu and the instant building 501 and 601. Geumcheon-gu uses the above building 501 and 601 as the business entity space and fashion support center. Moreover, the above building 701 is a plan for social enterprises to utilize it for the purpose of the business of creating common value of the ledger of industrial trade.

[Reasons for Recognition] The non-contentious facts, Gap 2 through 10 evidence (including additional numbers), each fact inquiry results against the Korea Industrial Complex Corporation of this Court, the purport of the whole pleadings

D. Determination

1) Whether gratuitous concession to the Korea Industrial Complex Corporation may be deemed a contribution to a State

With respect to the interpretation of the Act on Taxes and Charges, it shall not be interpreted in accordance with the legal text, unless there are special circumstances, regardless of the requirements for imposition or exemption, nor shall it be interpreted extensively or analogically without reasonable grounds. In particular, it accords with the principle of equity to strictly interpret that the provision clearly viewed as preferential provisions among the requirements for reduction or exemption accords with the principle of equity (see, e.g., Supreme Court Decisions 2007Du9884, Oct. 26, 2007; 2010Du11474, May 10, 2012).

Based on the above legal principles, it is reasonable to interpret that Article 13 of the Seoul Metropolitan Area Readjustment Planning Act provides that "a building which may be exempted from charges under the conditions as prescribed by Presidential Decree, such as parking lots, housing, or other buildings used for purposes prescribed by Presidential Decree" among buildings that can be exempted from charges, and Article 17 subparagraph 3 of the Enforcement Decree of the same Act provides that "charges shall be reduced from charges for facilities donated to the State or local governments among buildings." In light of the language and text of the above provisions, the principle of statutory interpretation on charges, etc., it is reasonable to interpret that Article 17 subparagraph 3 of the Enforcement Decree of the same Act shall apply only to the donation to the State or local governments. It is difficult to view this provision as including the gratuitous transfer of ownership to the State or local governments entrusted with authority by the State or local governments." Article 13 of the Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act provides that "the ownership of facilities donated to the State or local governments shall belong to the State or local governments under the conditions prescribed by Presidential Decree of the State Property Act."

2) Whether the principle of proportionality is violated

Overconcentration charges also have the nature of burden-bearing charges imposed as a result of providing the cause of construction for resolving various problems caused by population concentration, and the beneficiary charges to recover benefits arising from the creation of infrastructure in the Seoul Metropolitan area where infrastructure is abundant and to invest in the development of underdeveloped areas. However, basically, the overconcentration charges are special charges imposed as a policy in order to induce the national achievement of the nation’s purpose of resolving overconcentration in the Seoul Metropolitan area and promoting balanced regional development by preventing the construction and extension of population-concentrating facilities in the overconcentration control area (see Constitutional Court Order 2000Hun-Ba23, Nov. 29, 2001, etc.). Accordingly, the overconcentration charges are only a kind of responsibility for population concentration, but are not a tax imposition for partially recovering property gains, and even if the Plaintiff has no profit from the Defendant by transferring the instant facilities to the Korea Industrial Complex Corporation, the public interest still is achieved by imposing over the Plaintiff, who is the constructor of the population-concentrating facilities. Therefore, the above assertion by the Plaintiff is without merit.

3) Ultimately, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.