[1] In a case where a law that provides for the matters concerning the principal authorization and permission has a provision that the principal authorization and permission is deemed to have been granted under other Acts, whether all other provisions of the law under the premise that the principal authorization and permission are granted under other Acts shall apply (negative)

[2] Whether a complex development project under the former Act on Special Measures for the Construction, etc. of National Rental Housing is included in a development project subject to charges for school site charges under Article 2 subparagraph 2 of the former Act on Special Cases concerning the Securing, etc. of School Sites

[1] In a case where the Act stipulating the matters concerning the principal authorization and permission provides that the principal authorization and permission is deemed to have been granted under other Acts, it shall be limited to the case where the principal authorization and permission are granted under other Acts, and it shall not be applied to all other provisions of other Acts premised on the receipt of authorization and permission under other Acts.

[2] Article 2 Subparag. 2 of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015; hereinafter “School Site Act”) concerning a project subject to imposition of charges for school sites does not stipulate the former Act on Special Measures for the Construction, etc. of Rental Housing (wholly amended by Act No. 9511, Mar. 20, 2009; hereinafter “Public Housing Construction Act”) as a basis for a project subject to imposition of charges for school sites. In addition, Article 12(1) of the Public Housing Construction Act provides that where an implementation plan for an industrial complex development project is approved, the preparation and authorization of an implementation plan under the Urban Development Act (No. 11); approval of a project plan under the Housing Act (No. 20) shall be deemed to have been obtained with the approval or approval of an implementation plan under the Public Housing Construction Act; furthermore, it is difficult to deem that the said provision includes an excessively unfavorable interpretation of charges or approval in accordance with the Housing Construction Act.

[1] Article 12(1) of the former Act on Special Measures for the Construction, etc. of Public Rental Housing (wholly amended by Act No. 9511, Mar. 20, 2009; see Article 18(1) of the current Special Act on Public Housing); Article 27 of the Administrative Litigation Act / [2] Article 2 subparag. 2 and 3 of the former Act on Special Measures for the Construction, etc. of Public Rental Housing (wholly amended by Act No. 1306, Jan. 2015; see Article 12(1)1 of the former Act on Special Measures for the Construction, etc. of Public Housing (wholly amended by Act No. 9511, Mar. 20, 200); Article 27 of the Administrative Litigation Act / [2] Article 2 subparag. 2 and 3 of the former Act on Special Measures for the Construction, etc. of Public Housing (wholly amended by Act No. 9511; see Article 18(1)14 of the current Special Act on Public Housing);

[1] Supreme Court Decision 2004Da19715 decided Jul. 22, 2004 (Gong2004Ha, 1520)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Park Ho-ho, Counsel for defendant-appellant)

Busan City et al. (Law Firm Rate, Attorneys Park Ba-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu47568 decided November 21, 2014

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

The grounds of appeal are examined.

1. Article 2 Subparag. 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 “School Site Act”) 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 Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act, which include 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 existing schools in close vicinity where procuring school sites is impossible.”

In addition, Article 12(1) of the former Act on Special Measures for the Construction, etc. of National Rental Housing (wholly amended by Act No. 9511, Mar. 20, 2009; hereinafter “Public Housing Construction Act”) provides that the designation of an urban development zone under Article 3 of the Urban Development Act, the preparation and authorization of an implementation plan under Article 17 of the same Act, etc. shall be deemed to have been obtained when an implementation plan is approved pursuant to Article 11 of the same Act.

2. On January 10, 2013, the lower court determined that the instant industrial complex development project was lawful on the grounds that the Plaintiff was designated as a project implementer of the instant national rental housing complex development project (hereinafter “industrial complex development project”) pursuant to Article 4 of the Public Housing Construction Act; that on January 10, 2013, the Plaintiff imposed school site charges (general 123 households) on the supply of the instant housing site among the instant industrial complex development projects pursuant to Articles 5(1) and 5-2 of the School Sites Act (hereinafter “instant disposition”); and on the approval of the implementation plan for the industrial complex development project, the instant industrial complex development project is deemed designated as an urban development zone under the Urban Development Act; and meets the requirements prescribed under the Urban Development Act to implement the industrial complex development project. As such, the instant industrial complex development project does not differ from the substance of the project implemented under the Urban Development Act; the need to secure school site charges to meet the demand for school attendance formed by the project. Accordingly, the instant disposition of the instant school site development project is deemed legitimate on the ground of Article 2 of the instant school site development project.

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, must be strictly interpreted and applied, 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 and purpose of such administrative laws and regulations, such interpretation shall not deviate from the ordinary meaning

In addition, in a case where any Act stipulating the matters concerning the principal authorization and permission has a provision stipulating that the principal authorization and permission is deemed to have been granted under other Acts, the principal authorization and permission shall be deemed to have been granted under other Acts, and it does not apply to all other Acts premised on the authorization and permission granted under other Acts (see Supreme Court Decision 2004Da19715 delivered on July 22, 2004).

B. Article 2 Subparag. 2 of the Act on the Establishment of Public Housing does not stipulate the Public Housing Construction Act as a basis Act for a project subject to imposition of school site charges. In addition, when an implementation plan for an industrial complex development project is approved under Article 12(1) of the Public Housing Construction Act, it shall be deemed that an implementation plan is prepared and authorized under the Urban Development Act (Article 11) and approval for a project plan under the Housing Act (Article 20). However, this shall not be deemed to apply to all the provisions of the Urban Development Act and the Housing Act on the premise that such approval or approval has been obtained. Accordingly, an industrial complex development project under the Public Housing Construction 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 Public Housing Act, and any other interpretation that is included in a development project subject to imposition of school site charges shall not be permitted because the provisions on imposition of school site charges are excessively analogically interpreted or analogically interpreted to the disadvantage of the other party.

C. Nevertheless, the lower court determined that the instant disposition imposing school site charges on the instant industrial complex development project was lawful on different premise. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of development projects subject to imposition of school site charges, thereby adversely affecting the conclusion of the judgment.

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 Jo Hee-de (Presiding Justice)