Whether land prohibited from constructing "housing" for residence is excluded from the housing site subject to excess ownership charges;

Article 8-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991) was designated as an urban design zone pursuant to Article 8-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991). According to the determination and public notice of urban design, only the buildings for the purpose of the business, sale, neighborhood, viewing assembly, exhibition, telecommunications photographing facilities may be constructed jointly with the neighboring land, and if the construction of the “house” that can be used for residential purpose is prohibited, the housing site in the design district shall be considered as the housing site that is excluded from the housing site subject to excess ownership because it falls under the case where the construction of the housing is prohibited pursuant to the related Acts and subordinate statutes, such as the Building Act prescribed

Article 20 (1) 3 of the Act on the Ownership of Housing Sites

Plaintiff

The head of Gangnam-gu Seoul Metropolitan Government

Seoul High Court Decision 93Gu19100 delivered on February 3, 1994

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to the facts established by the court below, the head of Incheon Special Metropolitan City Mayor (wholly amended by Act No. 4381 of May 31, 191) designated the whole land including the instant housing site as an urban design area under Article 8-2 of the Building Act (wholly amended by Act No. 4381 of May 31, 191), and confirmed and publicly announced the urban design on March 17, 1983, the instant housing site is also subject to the prohibition of building charges under the former part of Article 10 of the Housing Act (excluding the housing site charges under the former part of Article 20 of the Housing Act), which is the neighboring land, until now, since the instant housing site falls under the scope of the neighboring land, ( Address 1 omitted), ( Address 2 omitted), ( Address 5 omitted), ( Address 6 omitted, ( Address 7 omitted), ( Address 8 omitted), ( Address 9 omitted), and the housing site is subject to the prohibition of building charges under the former part of the Building Act (Article 30 of the Housing Site Act).

Therefore, the court below's decision that the defendant's disposition of this case which imposed excessive owner's share of the housing site of this case was unlawful is just, and there is no error of law by misunderstanding the legal principles like the theory of lawsuit.

The issue is that Article 9-2 (1) 2 of the Enforcement Rule of the same Act (excluding those subject to imposition of charges) provides that only the housing site in an urban design district under the Enforcement Decree of the Urban Planning Act where the urban design is not publicly announced shall be excluded from the urban design district. After the urban design is publicly announced on March 17, 1983, the instant housing site is legitimate for the imposition of excess ownership charges on the instant housing site under the ground that it is possible to use and develop it according to the contents of the design publicly announced. However, Article 9-2 (1) 2 of the Enforcement Rule of the same Act provides that Article 9-2 (2) 2 of the same Act excludes the housing site from the subject of imposition of charges on the urban design district where the urban design is not publicly announced on the basis that it is difficult to regard that the urban design is not publicly announced on the basis of the relevant Act and subordinate statutes, so it is not necessary to clarify that such provision is one of the cases where construction of housing is de facto impossible.

Therefore, there is no reason to discuss.

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 Kim Jong-soo (Presiding Justice)