Whether a public official's negligence in the performance of duties is recognized in a case where it is found unfair by the Supreme Court's decision that established the provision after the administrative agency's interpretation of the law and the imposition of the land excess profit tax pursuant to Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Gains Tax Act. (negative)

Article 23 (1) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) provides that "if the use of land is prohibited or restricted by the provisions of Acts and subordinate statutes after the acquisition of the land, it shall not be deemed idle land, etc. for three years from the date on which the use thereof is prohibited or restricted by the provisions of the Acts and subordinate statutes" (Article 23 (3) of the former Enforcement Decree of the Land Excess Profit Tax Act) provides that "if the use of land is prohibited or restricted by the provisions of the Acts and subordinate statutes after the acquisition of the land, it shall not be deemed idle land, etc. for three years from the date on which the use thereof is prohibited or restricted by the provisions of the Acts and subordinate statutes." Thus, the Seoul Special Metropolitan City Mayor ordered the head of the Gu to withhold permission for all construction activities and requested the Minister of Construction and Transportation to designate the land as a planned area for housing development and the designation of the land is not permitted by the provisions of the Acts and subordinate statutes itself.

Article 2 of the State Compensation Act, Article 750 of the Civil Act, Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of December 31, 1994)

Supreme Court Decision 79Da262 delivered on April 10, 1979 (Gong1979, 11932), Supreme Court Decision 80Da1598 delivered on August 25, 198 (Gong1981, 14293), Supreme Court Decision 87Da2569 delivered on January 25, 199 (Gong1991, 841), Supreme Court Decision 84Da597 delivered on July 24, 1984 (Gong1984, 1434), Supreme Court Decision 93Da16819 delivered on July 14, 195 (Gong195Ha, 2762), Supreme Court Decision 95Da3274975 delivered on October 13, 1995 (Gong195, 2762).

Plaintiff 1 and one other (Attorney Hun-Ga, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 96Na5249 delivered on June 20, 1996

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

Article 8 (3) of the Land Excess Profit Tax Act provides that land falling under idle land, etc. after the acquisition of land shall not be deemed idle land, etc. for a period prescribed by Presidential Decree. Article 23 subparagraph 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) provides that the use of land shall not be deemed idle land, etc. for three years from the date of prohibition or restriction of use after the acquisition of land. As determined by the court below, since the Seoul Special Metropolitan City Mayor ordered the head of Gangseo-gu Office to withhold permission for all construction activities including the land in this case, upon request of the Minister of Construction and Transportation to designate it as a planned area for housing site development, and if an administrative agency does not temporarily construct the land in this case after the implementation of the project, it shall not be deemed that the use of the land in this case is directly prohibited or restricted by the provisions of the above Act and subordinate statutes or that the use of the land in this case shall not be deemed as a part of the decision of the Supreme Court.

In this regard, the decision of the court below that the disposition of this case and the disposition of miscellaneous arrears are not illegal as a result of the public official's negligence is just, and there is no error of law as pointed out in the theory of lawsuit.

In addition, as long as the judgment of the court below that the taxation by the head of Yangcheon Tax Office on the instant land does not constitute a tort is correct on the basis of the factual basis that the construction permission was restricted, the argument that the Seoul Special Metropolitan City Mayor and the head of Yangcheon Tax Office neglected their duty to cooperate with the relevant authorities pursuant to Article 29 of the Land Excess Gains Tax Act and Article 49 of the Enforcement Decree of the same Act, and that the head of Yangcheon Tax Office was negligent in taxation without knowing the restriction on the construction permission, which affected the conclusion of the judgment below.

Therefore, all appeals are dismissed, and the 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.

Justices Ahn Yong-sik (Presiding Justice)