[1] Whether the sale price of a house in an autonomous area constitutes "a case where the disposal price is limited" under Article 10 (2) of the former Restitution of Development Gains Act where the head of the competent Si/Gun has obtained approval for the sale price, etc. of the house in an autonomous area (affirmative)

[2] The relationship between the proviso of Article 10(1) and Article 10(2) of the former Restitution of Development Gains Act

[3] In a case where a private housing construction project is completed by developing a housing site by transferring a road which is a State-owned land without compensation, whether the land can be imposed housing site development charges (affirmative)

[4] In calculating the value of various parcels of land at the time of commencing a development project, whether part of the land can be calculated as the officially announced value, and whether part of the land can be calculated as the purchase price

[1] If a project developer obtains approval from the head of the competent Si/Gun by submitting documents such as a proposal of public announcement of invitation where the selling price, etc. of a house is indicated under Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994), Articles 8 and 9 of the former Rules on Housing Supply (amended by Presidential Decree No. 537 of Sep. 1, 1993), the selling price of the house constitutes a limited disposal price under Article 10 (2) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), and Article 9 (3) 1 of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993).

[2] In full view of the fact that the provisions of Article 10 (1) (proviso) and (2) of the former Restitution of Development Gains Act are exceptions to the main sentence of paragraph (1) and the purport of each provision of Article 10 (1) (proviso) and (2) of the same Act, in the event that the disposal price of a small business with the area of land less than 10,00 square meters is restricted by the relevant Acts and subordinate statutes, the disposal price shall be determined by the disposal price as provided in paragraph (2), even if the value of the land at the time of completion of the development project is lower than that of paragraph (2).

[3] If a project operator completes a private housing construction project by creating a housing site for the three lots of land, including three lots of land which are State-owned land under the provisions of Article 33(8) of the former Housing Construction Promotion Act and Article 83(2) of the Urban Planning Act, which is transferred without compensation, with the approval of the plan for the construction of private housing, the development gains on such three lots of land are actually vested in the project operator. Thus, even if the ownership transfer registration of the project operator is completed after the completion of the private housing construction project from the State for the land, the land is subject to the housing site development charges.

[4] According to Article 10(3) of the former Restitution of Development Gains Act, the value of land subject to the commencement of a development project shall be, in principle, based on the officially announced value at the time of commencement of the development project, and if a project operator vindicates the purchase price of land subject to the imposition, it may be based on the purchase price. Thus, if the land subject to the imposition cannot be calculated only on the basis of one of the standards, such as where the purchase price is substantiated only for a number of lots of land, the purchase price shall be calculated by adding up the value calculated based on

[1] Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994), Articles 8 and 9 of the former Rules on Housing Supply (amended by Act No. 537 of Sep. 1, 1993), Article 10 (2) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), Article 9 (3) 1 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993) / [2] Article 10 (1) and (2) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), Article 10 (3) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 13, 199) / [3] Article 3638 (13) of the former Housing Development Gains Act

[1] [2] Supreme Court Decision 94Nu2206 delivered on February 28, 1995 (Gong1995Sang, 1480) / [1] Supreme Court Decision 93Nu1096 delivered on October 8, 1993 (Gong1993Ha, 3090), Supreme Court Decision 92Nu1974 delivered on April 26, 1994 (Gong1994Sang, 1504Sang, 1504) / [4] Supreme Court Decision 93Nu24209 delivered on June 14, 1994 (Gong194Ha, 1977) / [4] Supreme Court Decision 93Nu7617 delivered on April 26, 1994 (Gong194, 1509)

Es Public Co., Ltd. (Attorney Go-do, Counsel for the defendant-appellant)

East Dual City

Seoul High Court Decision 94Gu17606 delivered on May 11, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

If a project operator obtains approval from the head of the competent Si/Gun by preparing documents such as a proposal for the public announcement of invitation of residents where the selling price, etc. of a house is indicated in accordance with Article 32 of the Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994), and Articles 8 and 9 of the Rules on Housing Supply (amended by the Ordinance No. 537 of Sep. 1, 1993), even if the selling price of a house is not an area to which the cost per annum applies, but an area to which the selling price of the house is autonomous, this constitutes a limited disposal price under Article 10(2) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter referred to as the "Enforcement Decree") and Article 9(3)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13956 of Aug. 12, 199).

In addition, comprehensively taking into account the fact that the provisions of the proviso of Article 10(1) and (2) of the Act are exceptions to the main sentence of paragraph (1) and the purport of each provision of Article 10(1) and (2) of the Act, where the area of the land is less than 10,000 square meters and the disposal price is restricted by the relevant Acts and subordinate statutes, the value of the land at the time of completion of the development project shall be calculated according to the disposal price under paragraph (2) even if the value is lower than that determined by the officially announced price under the proviso of paragraph (1) above (see Supreme Court Decision 94Nu206 delivered on February 28, 1995).

The court below is justified in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the case where the disposal price is limited, and there is no error in the misapprehension of legal principles as to the case where the disposal price is limited. The ground of appeal on this point is not acceptable.

2. On the third ground for appeal

According to the facts duly confirmed by the court below, if the plaintiff, a project operator, created a housing construction project for the land of this case, including three lots of a road, which is a state-owned land, under the provisions of Article 33(8) of the Housing Construction Promotion Act and Article 83(2) of the Urban Planning Act, and completed the above private housing construction project after obtaining approval of the plan for the private house construction project, the development gains on the above three lots of land actually belongs to the plaintiff. Thus, even if the transfer registration of ownership in the plaintiff's future is completed after the completion of the private housing construction project, the above land is subject to the development charges. The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the land subject to the development charges. The ground of appeal on this point is not acceptable.

3. On the second ground for appeal

According to Article 10(3) of the Act, the value of land subject to imposition at the time of commencing a development project shall be, in principle, based on the officially announced value at that time; however, if a project operator vindicates the purchase price of land subject to imposition, it may be based on the purchase price. If it is impossible to calculate only based on either of the standards, such as where only a certain piece of land is verified as a purchase price, the purchase price shall be calculated by adding up the value calculated based on the officially announced value of the land. The court below is just in calculating the value of land subject to imposition at the time of commencing a development project by such method, and there is no error in the misapprehension of a legal principle

In addition, according to the records, the court below is clear that the value of the land at the time of completion of the development project of this case is calculated lawfully from the total sale price of the house under Article 10 (2) of the Act, Article 9 (4) and (3) 1 of the Enforcement Decree less the construction cost as determined by the Minister of Construction and Transportation. Thus, there is no error in the misapprehension of legal principles as to the calculation of the value at the time of completion. The grounds of appeal on

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)