[1] In a case where a law that provides for the matters concerning the principal authorization and permission has a provision that the principal authorization and permission is deemed to have been granted under other Acts, whether all other provisions of the law under the premise that the principal authorization and permission are granted under other Acts shall apply (negative)

[2] Whether a housing construction project under the Special Act on the Construction of Bogeumjari Housing, etc. is included in a development project subject to charges for school site charges under Article 2 subparagraph 2 of the former Act on Special Cases concerning the Securing, etc. of School Sites (negative

[1] Article 35(1) and (4) of the former Special Act on the Construction of Bogeumjari Housing, etc. (Amended by Act No. 11690, Mar. 23, 2013; see Article 35(1) and (4) of the current Special Act on Public Housing; Article 35(4) of the current Special Act on Public Housing; Article 27 of the Administrative Litigation Act / [2] Article 2 subparag. 2 and 3 of the former Special Act on the Construction of Bogeumjari Housing, etc. (Amended by Act No. 1306, Jan. 20, 2015); Article 35(1) of the former Special Act on the Construction of Bogeumjari Housing, etc. (Amended by Act No. 11690, Mar. 23, 2013; see Article 35(1) and (4) of the current Special Act on Public Housing; Article 35(4) of the current Special Act on Public Housing; Article 35(4) of the Administrative Litigation Act / [General Litigation]

[1] [2] Supreme Court Decision 2014Du47686 Decided November 24, 2016 (Gong2017Sang, 27) / [1] Supreme Court Decision 2004Da19715 Decided July 22, 2004 (Gong2004Ha, 1520)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Kang Ji-hun et al., Counsel for the plaintiff-appellant)

The head of Seongbuk-gu Daejeon Metropolitan City U.S. (Law Firm private interest rate, Attorneys Kim Young-chul, Counsel for defendant-appellant

Daejeon High Court Decision 2014Nu10293 decided July 17, 2014

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Article 2 Subparag. 2 of the former Act on Special Cases Concerning the Creation, Development, and Supply of School Sites for Public Elementary Schools, Middle Schools, and High Schools (amended by Act No. 13006, Jan. 2015; hereinafter “School Sites Act”) provides that “Development Projects” means projects implemented pursuant to the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act, which include special cases concerning the creation, development, and supply of school sites for public elementary schools, middle schools, and high schools, means projects to create and develop land for housing construction of at least 10 households, among projects implemented pursuant to the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Site Development Promotion Act, and the Act on the Development of Industrial Sites and Development.” In subparagraph 3, “school sites charges” means expenses collected from development projects to secure school sites for development

In addition, Article 35(4) of the former Special Act on the Construction of Bogeumjari Housing, etc. (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Bogeumjari Housing Construction Act”) provides that when a project plan is approved pursuant to paragraph (1) or (2), a building permit under Article 11 of the Building Act (No. 1) and an “designation of an urban development zone under Article 3 of the Urban Development Act and authorization of an implementation plan under Article 17 of the same Act (No. 9)” shall be deemed to have been obtained.

2. The lower court recognized the Plaintiff on January 29, 2013 that the instant housing construction project was subject to approval for modification of the project plan for the instant housing construction project pursuant to Article 35 of the former Bogeumjari Housing Construction Act, and that the Defendant imposed school site charges on the Plaintiff pursuant to Articles 2 and 5 of the School Sites Act (hereinafter “instant disposition”). The lower court determined that the instant housing construction project was lawful on the ground that the instant construction project was subject to the instant disposition, on the ground that the construction permission under the Building Act and the designation of an urban development zone under Article 3 of the Urban Development Act were deemed to have been obtained when the project plan for the Bogeumjari housing was approved, and that the relevant construction project was conducted in accordance with the Building Act and the substance of the Bogeumjari housing project implemented in accordance with the former Bogeumjari Housing Construction Act, on the ground that there is a need to secure school site in order to meet the demand formed in the course of implementing the project under the former Bogeumjari Housing Construction Act.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. Administrative laws and regulations, which serve as the basis for an indivative administrative disposition, must be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative disposition, and even in cases where a teleological interpretation is allowed taking into account the legislative intent and purpose of such administrative laws and regulations, such interpretation shall not deviate from the ordinary meaning

In addition, in a case where any Act stipulating the matters concerning the principal authorization and permission provides that the principal authorization and permission is deemed to have been obtained pursuant to other Acts, the principal authorization and permission is deemed to have been obtained pursuant to other Acts, and it does not apply to all the provisions of other Acts premised on the authorization and permission obtained pursuant to other Acts (see Supreme Court Decision 2004Da19715, Jul. 22, 2004).

B. Article 2 Subparag. 2 of the Act on the Construction of Bogeumjari Housing does not stipulate the former Act on the Construction of Bogeumjari Housing in the basis of a project subject to imposition of school site charges. In addition, Article 35(4) of the former Act on the Construction of Bogeumjari Housing provides that when approval of a project plan for the Bogeumjari Housing is granted, a building permit under the Building Act (Article 1) and an implementation plan under the Urban Development Act (Article 9) shall be deemed to have been granted. However, this is merely deemed to have been granted approval of a project plan for housing construction under the former Act on the Construction of Bogeumjari Housing, and it is difficult to view that all the provisions of the Building Act and the Urban Development Act apply to a housing construction project under the former Act on the premise that such permission or authorization has been granted. Accordingly, it shall not be deemed that a housing construction project under the Housing Construction Act is included in a development project subject to imposition of school site charges under Article 2 Subparag. 2 of the School Sites Act, and any other interpretation that is included in a development project subject to imposition of school site charges is prohibited because it excessively expands or excessively unfavorable to the other party.

C. Nevertheless, the lower court determined that the instant disposition imposing school site charges on the instant housing construction project was lawful on different premise. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of development projects subject to imposition of school site charges, thereby adversely affecting the conclusion of the judgment.

4. 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 Kim Jae-hyung (Presiding Justice)