[1] In order to fall under the land annexed to a building excluded from a site, which is subject to the imposition of a housing site excess ownership charge, whether the building should be constructed on the land whose land category is the site (affirmative)

[2] The case holding that a housing site where only an unauthorized building is constructed does not constitute land annexed to a building under the above / [1] even if the housing site constitutes a group of land as a school building site

[1] Under Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites and Article 3 of the Enforcement Decree of the same Act, a building shall be constructed on the land, the land category of which under Article 5 of the Cadastral Act is the land category of which is the site, so as to fall under the land annexed to a building excluded from the site, which is subject to the imposition of excess ownership charges.

[2] The case reversing the judgment of the court below on the ground that a site where only an unauthorized building is constructed does not constitute land annexed to a building that is excluded from a site subject to a housing site excess ownership charge, even if the housing site form a group of land with the land which is a school building site

[1] Article 2 subparag. 1 of the Act on the Ownership of Housing Sites, Article 3 subparag. 1 of the Enforcement Decree of the Act on the Ownership of Housing Sites, Article 5 of the Cadastral Act / [2] Article 2 subparag. 1 of the Act on the Ownership of Housing Sites, Article 3 subparag. 1 of the Enforcement Decree of the Act on the Ownership of Housing Sites, Article 5

[1] Supreme Court Decision 94Nu8372 delivered on December 27, 1994 (Gong1995Sang, 704) Supreme Court Decision 95Nu7611 delivered on March 8, 1996 (Gong196Sang, 1274)

Social Welfare Foundation or Gwangju Teaching Institute

The head of Bupyeong-gu Incheon Metropolitan City

Seoul High Court Decision 95Gu19944 delivered on March 21, 1996

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

We examine the grounds of appeal.

1. On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, it is just for the court below to acknowledge that a group of land is formed in light of the following: the housing site of this case, the land category of which is the site, and the school site of the Incheon Mine Institute operated by the plaintiff, and the school site of the Incheon Mine Institute, the land category of which is the whole or school site, and the land category of which is the school site is cut off from the outside and fence, and that the building without permission of this case is used as the sports site of the above Incheon Minewon, Incheon Mine Institute, and the student's life and student's sports site, and there is no error of law of misconception of facts

2. On the second ground for appeal

A. According to the reasoning of the lower judgment, the lower court determined that the instant housing site constitutes land annexed to a building excluded from the subject of the charge on the ground that the land annexed to the school building (a building area of 482.4 square meters, total floor area of 1,109.32 square meters) operated by the Plaintiff and the school building (a building area of 482.4 square meters, total building area of 1,109.32 square meters) of the Incheon Pungwon is 1,386.65 square meters under the method of calculation under subparagraph 1 [Attachment Table 1] of Article 3 of the Enforcement Decree, on the premise that it is excluded from the site subject to the charge on excess ownership of the housing site, and the site of the said school building is a land category of the building, since the land category of the said school building is entirely or a school site is no land annexed to the building, it does not constitute land annexed to the building.

B. However, Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act"), which is one of the housing sites subject to the application of the Act, provides that the land, the category of which under Article 5 of the Cadastral Act is not constructed as a permanent building among the land whose land category is a building site under Article 5 of the Cadastral Act (hereinafter referred to as "Nana site"), and Article 3 of the Enforcement Decree of the same Act provides that "land as prescribed by the Presidential Decree, on which no permanent building is constructed" under Article 2 subparagraph 1 (b) of the same Act refers to the land (including the land which is the floor of a building) on which no building is constructed, excluding the land falling under any of the following subparagraphs, and therefore, Article 2 subparagraph 1 of the same Act provides that the land annexed to a building shall be constructed on the land, the category of which under Article 5 of the Cadastral Act is a building site.

However, according to the records, the school building of this case is constructed on the whole or on the land which is a school site, and only an unauthorized temporary building is constructed on the site of this case, which is the site. Thus, even if the housing site of this case forms a group of land with the land which is the site of a school building, it cannot be deemed as the land annexed to the building.

Supreme Court Decision 94Nu8372 delivered on December 27, 1994, cited by the court below, is about the scope of land included in the annexed land in a case where a building is constructed on the site, and it is not appropriate to refer to this case.

Nevertheless, the court below determined otherwise that the housing site in this case constitutes the land annexed to a building excluded from the site subject to the imposition of dues. Therefore, the court below erred in the misapprehension of legal principles as to the land annexed to the building, and there is a reason to point this out.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)