[1] Calculation of land price for the calculation of development charges, and disposition subject to litigation

[2] Whether the settlement of the reduction or increase of the development charges itself is subject to a separate disposition, and it can be asserted as a subject of the lawsuit in advance at the time of the initial disposition (affirmative)

[3] The case holding that a lawsuit for cancellation of the remaining part of the original disposition is unlawful when the head of a local government filed a lawsuit for cancellation of the previous disposition on the ground that the disposition for reduction settlement was defective after the original disposition for imposition of development charges, and the settlement itself does not constitute an unlawful ground for illegality of the original disposition

[1] In imposing development charges, if an administrative agency has settled the difference between the initial development charges by setting the land price at the time of completion of imposition and the initial time of completion of imposition according to the main sentence of Article 10(1) of the former Restitution of Development Gains Act (amended by Presidential Decree No. 5108 of Dec. 29, 1995), based on the officially announced land price of the reference land with the most similar land situation at the time of completion of imposition, the administrative agency has determined and announced publicly the land price at the time of completion of imposition pursuant to the comparison table under Article 10(2) of the Public Notice of Values and Appraisal of Lands, etc. of Lands Act, and if the individual land price of the land subject to imposition is determined and announced publicly after the next year is determined and announced publicly, the former Restitution of Development Gains Act (amended by Presidential Decree No. 5285 of Jan. 13, 1997) and Article 8-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996).

[2] The increase or decrease of development charges pursuant to the proviso of Article 10(1) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997) is limited to the calculation based on the officially assessed individual land price that cannot be asserted in advance at the time of the initial imposition due to the relationship determined and publicly announced in the following year, and it is not determined by the result of the omission or error in the initial disposition. Considering the characteristics of the above settlement, Article 22(2) of the same Act provides a separate method of dispute, which allows an administrative appeal to regard the settlement itself as a separate disposition, based on the unique reasons for the settlement itself under the proviso of Article 10(1) of the same Act. According to this, the settlement itself, regardless of whether the increase or decrease is settled or between the settlement itself as separate disposition, it becomes difficult to dispute in advance at the time of the initial imposition, namely, the unique reason itself, the point at which the increase belongs to the point at which the increase or decrease in the individual land price for the following year.

[3] The case holding that when the head of a local government initially issued a disposition imposing development charges, and then adjusted the reduction of the original disposition under Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997), the person concerned is unlawful, not by itself, because the area of each development project falls short of the business area subject to the development charges, and the development project is deemed to be implemented by adding the area of each development project to the same development project although the area of each development project falls short of the business area subject to the imposition of the development charges, and thus, one development project is deemed to be implemented, and the relevant development project has failed to take legitimate procedures while filing a lawsuit seeking revocation of the remaining part without reducing the content of the relevant development charges

[1] Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995), Article 10 (2) of the Public Notice of Values and Appraisal of Lands, etc. Act, Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997), Article 8-2 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 15238 of Dec. 31, 1996) / [2] Articles 10 (1) and 22 (2) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997) / [3] Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997), Article 10 (2) and (1) of the former Enforcement Decree of the Restitution of Development Gains Act (1)

[1] Supreme Court Decision 96Nu9096 delivered on April 11, 1997 (Gong1997Sang, 1469) Supreme Court Decision 96Nu19307 delivered on June 27, 1997

Plaintiff 1 and four others

Massung Guns

Seoul High Court Decision 97Gu18785 delivered on December 16, 1997

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

In imposing development charges, an administrative agency shall determine development charges according to the method of determining the land price at the time of completion of imposition according to the comparison table under Article 10 (2) of the Public Notice of Values and Appraisal of Lands, etc. Act based on the officially announced value of the reference land which is the most similar to the land at the time of completion of imposition as of December 29, 195 (amended by the Presidential Decree No. 5108 of Dec. 29, 1995) and then the publicly announced individual land price of the land subject to imposition in the following year is determined and publicly announced, and if the land price at the time of completion of imposition is determined at the same time as of the initial increase and use of the reference land at the time of completion of imposition under the main sentence of Article 10 (1) of the former Restitution of Development Gains Act (amended by the Presidential Decree No. 15288 of Dec. 31, 1996), the remaining portion of the initially adjusted increase and adjusted development charges was settled by 97Nu1967.

On the other hand, the increase or decrease of development charges pursuant to the proviso of Article 10 (1) of the Act can only be determined by the accounts based on the officially assessed individual land price which cannot be disputed in advance at the time of the initial imposition due to the relationship determined and publicly announced in the following year, and it is not determined by the result of correction of omissions and errors in the initial imposition. In light of the characteristics of the above settlement, Article 22 (2) of the Act provides an additional dispute method which allows an administrative appeal to regard the settlement itself as a separate disposition by stating the unique reason for the settlement itself under the proviso of Article 10 (1) of the Act. According to this, the settlement of increase or decrease itself should be viewed as a separate disposition at the time of the initial imposition, and it should be determined as an object of the settlement itself, which is an unlawful cause inherent to the settlement itself, i.e., the difference in normal land prices after the end of the year following the end of imposition, or after the end of imposition, or it should be determined as a result of the settlement.

According to the records, when imposing the development charges of this case against the plaintiffs on August 25, 1995 (hereinafter the original disposition of this case), the defendant calculated the land price of this case as 579,615,750 won at the time of completion of imposition of the land of this case, but decided and announced the officially assessed land price of 1996 as 412,313,540 won after the end year of this case, pursuant to the proviso of Article 10 (1) of the Act, he adjusted the development charges of this case on July 27, 1996 to reduce the development charges of 16,863,810 won to 83,212,70 won. Accordingly, the plaintiff's claim that the development charges of this case of this case should be imposed on the same development project of this case as 20,000 won, which is not an unlawful ground that is unique to the above settlement itself, and the defendant's remaining area of each development project of this case should not be applied to the same development charges of this case.

However, according to the records, on October 28, 1996, Plaintiff 3’s request for administrative appeal against the original disposition (the ground for appeal is that the same as the lawsuit in this case does not fall under the business subject to development charges) was dismissed as unlawful after the lapse of the time limit, and otherwise, it can be known that the plaintiffs did not file a legitimate administrative appeal against the original disposition. Accordingly, the lawsuit in this case is filed without lawful administrative appeal, and thus, it should be deemed unlawful.

Although the judgment of the court below is inappropriate in its reasoning, its conclusion that the lawsuit in this case was filed without the legitimate administrative appeal is justifiable, and it cannot be said that there was an error of law such as incomplete deliberation or misunderstanding of legal principles as to the implementation of the procedure in the previous trial of this case.

The grounds of appeal cannot be accepted.

Therefore, all appeals are 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 Seo Sung-sung (Presiding Justice)