Whether the land designated by the operator of the apartment zone development project after the designation of the apartment zone falls under the land prohibited from construction, etc. under Article 78-3 subparagraph 1 (1) of the former Enforcement Rule of the Local Tax Act (Ordinance of the Ministry of Home Affairs No. 165 of Feb. 21, 1975)

If an apartment zone development project executor has been designated pursuant to Article 21(2) of the Housing Construction Promotion Act after the apartment zone has been designated pursuant to the relevant provisions of the Urban Planning Act with respect to a certain land, the right to implement the apartment zone development project guaranteed by the landowner is entirely excluded due to such overlapped measures as above, and it is apparent that the land owner is no longer able to use the land in accordance with the purpose of the apartment zone, and the use of the land is obviously prohibited or restricted by the measures taken in accordance with the relevant laws and regulations, such as the use of the land in the apartment zone is no longer available even if it is intended to use the land in accordance with the purpose of the apartment zone. Therefore, at the same time with the designation of the operator of the apartment zone development project, the land concerned is subject to the prohibition of construction and the use in accordance with the above provisions

Articles 78-3(1)(1) of the former Enforcement Rule of the Local Tax Act (Ordinance of the Ministry of Home Affairs No. 165 of Feb. 12, 1975), Article 21(2) of the Housing Construction Promotion Act, Article 18(2) of the Urban Planning Act

Supreme Court en banc Decision 83Nu387 Decided February 10, 1987, 82Nu79 Decided February 24, 1987

Plaintiff 1 and 3 others, Counsel for the plaintiff-appellant

The head of Seocho-gu Seoul Metropolitan Government

Supreme Court Decision 82Nu79 Decided February 24, 1987

Seoul High Court 1987.9.23, 87Guc392,

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

After the designation of an apartment zone under the relevant provisions of the Urban Planning Act with respect to a certain land, if the operator of the apartment zone development project is designated by the first implementer of the development project for the land designated as an apartment zone under the provisions of Article 21 (2) of the Housing Construction Promotion Act on the ground that there is no application for the approval for the implementation of the project within the period stipulated in the said provisions, the right to implement the apartment zone development project guaranteed by the landowner is entirely excluded from the execution of the development project for the apartment zone development project, and it is apparent that the owner of the land is no longer able to use the land for the purpose of the use of the apartment zone directly or indirectly, due to the measures taken pursuant to the above provisions such as the prohibition or restriction of the use of the land, and at the same time, the land is designated as the operator of the development project for the apartment zone and at the same time, the land is prohibited from the construction and the use of the land for the purpose of the project under the provisions of subparagraph 1 (1) of Article 78-3 of the Local Tax Act (see the Local Tax Act No. 1).

According to the reasoning of the judgment below, the court below determined that the land of this case was designated as an apartment district on August 21, 1976 under the relevant provisions of the Urban Planning Act, and that the project implementation period under the provisions of Article 21 (2) of the Housing Construction Promotion Act was designated as of December 31, 1978, and that the designated project executor intended the above project implementation period without the project implementation period. The court below determined that the land of this case was land excluded from the public land pursuant to the provisions of subparagraph 1 (a) of Article 78-3 of the Enforcement Rule of the Local Tax Act, since 1 year and 6 months have not passed from the following day of December 31, 1979, the expiration date of the project implementation period of the above designated project operator, and that the land of this case was determined as land under the provisions of subparagraph 1 (b) of the above Article 78-3 of the Enforcement Rule of the Local Tax Act, and there is no error in the misapprehension of law or incomplete deliberation.

Therefore, the appeal is 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.

Justices Yoon Il-young (Presiding Justice)