Where a construction company obtains approval for a housing construction project plan jointly with a landowner for convenience, whether the construction company is liable to pay development charges (affirmative)

In light of the proviso of Article 33-4 of the Housing Construction Promotion Act, when a construction company becomes a landowner and a joint project executor and only lends only the name to a landowner for convenience, the construction company shall be deemed a joint project owner if the landowner constructs a house jointly with a registered owner under the proviso of Article 33-4 of the Housing Construction Promotion Act.

Article 2 of the Restitution of Development Gains Act, Articles 3 and 6 of the same Act, and Article 33-4 of the Housing Construction Promotion Act.

Hanyang, Inc.

Three-party Market

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition imposing development charges of KRW 87,852,890 on October 9, 1991 against the Plaintiff shall be revoked.

Litigation costs shall be borne by the defendant.

1. Details of the imposition;

There is no dispute between the parties regarding the following facts regarding the details of the imposition of the development charges of this case stated in the purport of the claim:

A. The Plaintiff is a registered housing constructor under Article 6 of the Housing Construction Promotion Act at the same time a designated housing constructor under Article 8 of the same Act.

B. On March 15, 1990, the Plaintiff obtained approval of the business plan under Article 33 of the Housing Construction Promotion Act from the Defendant under the joint name of the non-party company and the non-party company as a joint name, with respect to the housing construction project with an apartment building of 281 m2,523m2 (hereinafter “the instant land”) located in 117m2 (hereinafter “the instant land”).

C. The above housing construction project was completed on July 1991 and passed the completion inspection on the 10th of the same month, and the land previously existed prior to the implementation of the above housing construction project was formed as a site and its land category was changed from September 2 of the same year to its land category.

D. Accordingly, the Defendant calculated the amount of KRW 87,852,890 on the ground that the development gains under the Restitution of Development Gains Act have occurred due to the implementation of the said housing construction project, and calculated the amount of development charges. On October 9, 1991, the Defendant issued the instant disposition against the Plaintiff, a joint project operator, to the Plaintiff.

2. The legality of a disposition of imposition.

A. The parties' assertion

In regard to the defendant's assertion that the disposition of this case was lawful on the ground of the above disposition, the development charges under the Restitution of Development Gains Act are imposed on the operator of the development project to which the development gains accrued. The plaintiff asserted that the disposition of this case was unlawful since the plaintiff supplied the above apartment building construction works from the non-party company and obtained the approval of the project plan, the landowner becomes a joint owner of the non-party company for convenience due to the regulation under the provisions of Article 33-4 of the Housing Construction Promotion Act that he can construct the housing only jointly with the registered business operator. In addition, as long as the plaintiff is not the owner of the above land, the plaintiff did not actually become the owner of the above housing construction project.

(b) the relevant legal provisions;

The provisions of subparagraph 1 of Article 2, Article 3 and Article 6 (1) of the Restitution of Development Gains Act stipulate that development charges shall be imposed on the development gains accruing to the executor of a development project, and the attached Table 1 of Article 4 of the Enforcement Decree of the same Act pursuant to subparagraph 2 of Article 5 of the same Act stipulates that a person who has obtained approval for a housing site development project under the Housing Construction Promotion Act shall be limited to a registered housing constructor under the Housing Construction Promotion Act, while a person who has obtained approval for a housing site development project under the Housing Construction Promotion Act may construct housing jointly with a registered housing constructor even though he/she is not a registered housing manager. In this case, a landowner and a registered housing manager shall be deemed a joint project proprietor, and the main sentence of Article 34-2 and subparagraph 3 of the Enforcement Decree of the same Article provide that when a landowner and a registered housing manager apply for an approval for a project plan to jointly construct housing, an agreement shall be concluded between the landowner and the registered housing manager on the burden of project costs and the allocation

C. The plaintiff's obligation to pay development charges

As seen earlier, as long as the Plaintiff becomes a joint project executor and obtained approval of the business plan from the Defendant, even though the Plaintiff merely lent the name of the non-party company for convenience in obtaining approval for the business plan after the Plaintiff supplied and supplied apartment houses as alleged by the Plaintiff, in light of the proviso of Article 33-4 of the Housing Construction Promotion Act, which provides that if a landowner constructs a house jointly with a registered business owner, he shall be deemed a joint project owner, in relation to the Defendant, the Plaintiff shall be deemed a project implementer under Article 6 of the Restitution of Development Gains Act, and as long as the Plaintiff is not the owner of the instant land, but the Plaintiff becomes the main owner of the housing construction project (site development project) jointly with the non-party company, the development gains shall be deemed to have accrued to the Plaintiff regardless of the agreement on internal profit distribution among them (the application or mutatis mutandis application of Article 25 of the Framework Act on National Taxes, which stipulates joint and several tax liability of a joint business owner

4. Conclusion

Therefore, the plaintiff's claim seeking revocation is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Judges Cho Jae-ap (Presiding Judge)