[1] Criteria for determining the scale of the development project subject to the development charges (=area of the land subject to the project subject to the authorization, etc.)

[2] The case holding that the issue of whether the development charges are imposed shall be based on the area actually obtained the construction permission including the donated site area, not on the constructed area, but on the donated site area

[1] Article 4 (1) 2 of the Enforcement Decree of the Restitution of Development Gains Act / [2] Articles 4 (1) 2 and 5 (1) 10 of the Enforcement Decree of the Restitution of Development Gains Act, Article 4 (1) 2 [Attachment 1] and 9 of the Enforcement Decree of the Restitution of Development Gains Act, Article 46 of the Urban Planning Act, Article 8 (6) 3 of the former Building Act (amended by Act No. 6655 of Feb. 4, 2002)

[1] Supreme Court Decision 93Nu13728 delivered on April 25, 1995 (Gong1995Sang, 1985) Supreme Court Decision 95Nu10464 delivered on July 12, 1996 (Gong1996Ha, 2510), Supreme Court Decision 96Nu1237 delivered on June 27, 1997 (Gong1997Ha, 2192), Supreme Court Decision 98Du2881 delivered on December 10, 199 (Gong200Sang, 200Du9694 delivered on April 24, 2001)

Plaintiff (Attorney Kim Won-sik, Counsel for the plaintiff-appellant)

Sungnam City

Seoul High Court Decision 2003Nu5473 delivered on January 9, 2004

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

We examine the grounds of appeal.

1. Summary of the judgment below

Based on its adopted evidence, the court below found on November 18, 200 that the plaintiff applied for a building permit or development act (land form and quality change) to the head of a subdivision on the ground of 275 square meters in 1,126 square meters in 275, Dong-dong, Sungnam-si, Sungnam-si, and that the plaintiff applied for a building permit or development act (land form and quality change) to 984 square meters in site area; the application for a permit for change of land form and quality is 1,058 square meters in site area (the sum of 74 square meters in site area 984 square meters in site area; hereinafter referred to as the "application land of this case"); on December 30, 200, the head of a subdivision on the ground of 200 square meters in site area of 984 square meters in site area, which is 1,054 square meters in accordance with the above provision of Article 25 (1) of the Enforcement Decree of the Development Act, which is the development permit of this case.

In addition, based on the facts found above, the court below held that the Defendant’s development project of this case constitutes “development project involving the change of land category” and that the disposition of this case was conducted upon setting the starting point of imposition and the time of completion of imposition, and therefore the Plaintiff’s development project is subject to imposition of development charges on the scale of the development project, it should be based on the area for which the construction permit was actually granted. The construction permit of the meaning including the permission for changing land form and quality and the consultation on conversion of farmland for the development project of this case was 984 square meters in the target area, and the 74 square meters in the above donated area was not included in the site area of the above construction permit. Accordingly, the land area of the development project of this case is less than 90 square meters, which is the basis of the imposition of development charges, and thus, the disposition of this case was unlawful.

2. The judgment of this Court

Article 4(1)2 of the Enforcement Decree of the Restitution of Development Gains Act provides that “The scale of a development project subject to the imposition of development charges shall be the same as the area of the land for the project authorized, permitted, licensed, etc. by the State or a local government in accordance with the relevant Acts and subordinate statutes is not less than 90 square meters in the case of a project implemented in an area located in an urban planning zone other than subparagraph 1.” The scale of the development project subject to the imposition of development charges shall be based on the area of the land for the project authorized, etc. under the relevant Acts and subordinate statutes, which is not the area actually developed (see Supreme Court Decision 98Du28

According to the records, the defendant, on the premise of the construction permit of this case, had the construction permit of this case on the premise of 275 m2,126 m2, which is the land prior to the division of the land in this case, including 74 m2,05 m2 in the judgment of the court below, and examined the provisional approval of change of form and quality under Article 46 of the Farmland Act after examining the provisional approval of farmland conversion under Article 46 of the former Building Act after consultation on farmland conversion under Article 36 (2) of the same Act, and without a separate permission of change of form and quality under Article 8 (6) 3 of the former Building Act (amended by Act No. 6655 of Feb. 4, 2002), within the meaning of including the permission of change of form and quality and farmland conversion and farmland conversion, the above 1,05 m27 m2,000 m2,07 m274 m2,007 m2.

Nevertheless, the court below erred by misapprehending the legal principles as to the scale of the development project subject to the development charges, which is subject to the development charges, on the grounds as stated in its reasoning. The ground of appeal pointing this out is with merit.

3. Conclusion

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 Park Jae- Jae (Presiding Justice)