[1] The standard for determining the standard land price in the calculation of the individual land price

[2] In a lawsuit seeking revocation of a disposition imposing development charges where a legitimate amount to be imposed can not be calculated by data submitted by the parties, whether the entire disposition imposing development charges should be revoked (affirmative)

[3] Purport of the provisions of Article 10 of the former Restitution of Development Gains Act, and in a case where the imposing authority erred in calculating the land price at the time of completion of the imposition of the development charges, whether the appraised value by the appraiser may be considered as the publicly assessed individual land price (negative)

[1] The individual land price is basically a reasonable and objective calculation of the reference land which is the most similar factor in the formation of the land price among the reference land in the same price zone as the target land. Therefore, the comparison standard should be selected from among the reference land whose characteristics of land are the same or similar to those of the land such as specific use area, land use status, and other natural and social conditions.

[2] In a lawsuit seeking cancellation of development charges, when the amount of legitimate burden to be imposed lawfully is calculated based on the data submitted by the parties concerned, the court must cancel only the portion exceeding the reasonable amount, and in other cases, the entire disposition of imposition shall be cancelled.

[3] The provisions of Article 10 of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997) excludes the appraisal method by an appraiser for the land at the end of the imposition, and by determining and publicly announcing the officially assessed individual land price each year, an ombudsman shall calculate the officially assessed individual land price based on the status of the land at the end of the imposition at the end of the imposition in the same manner as the calculation method of the publicly assessed individual land price, and as long as the purpose of the imposition is to calculate the land at the end of the imposition in addition to the increases in normal land prices at the end of the imposition in order to achieve the application principle of the officially assessed individual land price in the calculation of the development charges, it is reasonable for the imposition authority to calculate the publicly assessed individual land price based on technical and professional judgment, as well as the determination of the publicly assessed individual land price.

[1] Article 10(1) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997); Article 10 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5453 of Dec. 13, 1997); Article 10 of the former Public Notice of Values and Appraisal of Lands, etc. Act / [2] Articles 10(1) and 14 of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997); Article 8-2(1) and (2) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996); Article 10 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5453 of Dec. 13, 1997); Article 19 and Article 27 of the Administrative Litigation Act / [25]

[1] Supreme Court Decision 95Nu3442 delivered on July 11, 1995 (Gong1995Ha, 2813), Supreme Court Decision 96Nu9096 delivered on April 11, 1997 (Gong1997Sang, 1469), Supreme Court Decision 97Nu636 delivered on December 8, 1998 (Gong199Sang, 133) / [2] Supreme Court Decision 91Nu6542 delivered on December 24, 1991 (Gong192, 80), Supreme Court Decision 92Nu4840 delivered on July 24, 1992 (Gong1992, 2586) and Supreme Court Decision 90Nu939459 delivered on October 28, 1994 (Gong1992, 2589Sang, 197Du198495 delivered on September 29, 1995)

Plaintiff

The head of Yeonsu-gu

Seoul High Court Decision 97Gu31528 delivered on March 24, 1999

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

The grounds of appeal are examined.

1. Summary of the judgment below

In light of the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for a comparison of 1,60 m2 on September 195, 195 to 1,60 m2 (1,60 m2 on the land ledger, hereinafter referred to as “instant land”) with the construction permission of neighborhood living facilities (hereinafter referred to as “daily products retail stores and general restaurants”) on March 5, 1996, calculated on September 16, and changed the land category from 16 m2 to 90 m3 m2 on the ground that the land price was calculated on September 7, 1996 by 196 m2 to 190 m2, the lower court determined that the land price was calculated on September 16, 196 as 19 m20 m26 m2 to 94 m2. The lower court determined that the land price was calculated on September 16, 1996 as m20 m2.

2. Plaintiff’s ground of appeal

Since the individual land price can be calculated more reasonably and objectively from among the reference land within the same price zone as the target land, which is the most similar factor in the formation of the land price, the comparison standard should be selected from among the reference land whose characteristics are the same or similar to the characteristics of the land, such as the target land and specific use area, land use, and other natural and social conditions (see, e.g., Supreme Court Decisions 96Nu9096, Apr. 11, 1997; 97Nu636, Dec. 8, 1998).

However, according to the records, the use area of the standard land of the first place selected as comparative standard land in the 1995 process of the determination of individual land price for the land of this case belongs to the general residential area, and the land of this case belongs to the natural green area and the general residential area, while the first place is located within the mountain and farmland away from the land of this case and is cultivated as dry field, but the land of this case is adjacent to the light passing through the house and commercial area, and is likely to be used for residential or commercial purposes in the nearest future where the form and quality change has already changed. Thus, it is difficult to conclude that the first place is similar to the land characteristics such as the land of this case and the surrounding environment among the reference land adjacent to the land of this case.

Therefore, the court below should decide whether there was an error of law as to the starting point of imposition by erroneous determination of comparative standard in the decision of the officially assessed individual land price in 1995 as to the land of this case, after examining whether there was a similar standard land use among the reference land in the vicinity of the land of this case, and judged that the decision of the officially assessed individual land price was justifiable for the reasons stated in its holding, and there is an error of law by misunderstanding the legal principles as to the selection of comparative standard land price in the decision of the officially assessed individual

3. As to the Defendant’s ground of appeal

According to the records, the third standard site which the court below deemed appropriate as a comparative standard site for the calculation of the land price at the time of completion is affected directly by the same road adjacent to and adjacent to the land of this case, and is similar to the surface of the road of this case, but it is difficult to see that the land of this case and natural and social conditions are similar compared to the second standard site selected by the defendant as a comparative standard because the state of use is different from the land of this case mainly from the land of this case. Thus, it cannot be said that there is an error of law that the defendant is located within the same special-purpose area and the

In addition, according to the facts and records duly established by the court below, the "Guidelines for Land Characteristics Survey of the Guidelines for the 1996 officially assessed individual land price" shall apply only to the case where the land category is the same as the land use of the standard land area compared to the land concerned (the case where the main purpose is the same) but only to the case where there is no building. On the other hand, it can be known that the construction work on the land in this case was not completed at the time of completion of the imposition, and thus, the above price adjustment rate cannot be applied.

Nevertheless, the court below erred in the misapprehension of legal principles as to the criteria for the selection of comparative standard land and the application of the standard land price ratification table, which affected the conclusion of the judgment, where the court below decided that the Defendant calculated the land price at the end of imposition without applying the price adjustment rate based on the difference of land category as the comparative standard land for the land of this case.

In addition, in a lawsuit seeking cancellation of the imposition of development charges, only the portion exceeding the legitimate amount should be cancelled if the legitimate amount of charges is calculated by the data submitted by the parties concerned (see Supreme Court Decision 94Nu13527, Apr. 28, 1995). The provisions of Article 10 of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; Act No. 5285, Jan. 13, 1997); the land price at the time of completion of imposition shall be excluded by an appraiser; the land price at the time of imposition shall be determined and publicly announced annually; the land price at the time of imposition shall be determined and publicly announced by an ombudsman with the ability and experience in the calculation of the land price; and the land price at the time of imposition shall be calculated based on the status of the land at the time of imposition of the publicly announced individual land price at the time of expiration of the imposition of the land price at the same time as the above publicly notified individual land price at the time of imposition at the expiration of the imposition.

There is a reason to point out these points.

3. 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 Yoon Jae-sik (Presiding Justice)