Whether Article 2 (1) of the Addenda to the former Enforcement Decree of the Restitution of Development Gains Act is null and void because it violates the parent law.

Article 2 (1) and (2) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13456, Sep. 13, 191) purported that in calculating the land price at the time of the commencement of development projects, which is one of the criteria for imposing development charges, the starting point of development projects shall not be the starting point under Article 2 of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993) but the starting point at the actual starting point of development projects, which is not the starting point under Article 2 of the Addenda of the former Restitution of Development Gains Act (amended by Presidential Decree No. 13456, Sep. 13, 1991), if so, the part excluded under Article 2 of the Addenda of the same Act in calculating development charges shall be reflected in calculating the development charges, and

Article 2 of the Addenda of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) (amended by Presidential Decree No. 13456 of Dec. 30, 1989), Articles 2(1) and 2(2) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13456 of Sep. 13, 1991)

Supreme Court en banc Decision 93Nu6324 delivered on March 22, 1994 (Gong1994Sang, 1344)

Korea Co., Ltd., Counsel for the defendant-appellant and one other

Chungcheong Market

Daejeon High Court Decision 93Gu447 delivered on September 10, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal (to the extent of supplement in case of supplemental appellate brief not timely filed) are examined as follows.

According to Article 2 (Transitional Measures) of the Addenda of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; hereinafter “Act”), a project subject to the imposition of development charges under Article 5 shall be subject to the application of this Act, but in this case, the enforcement date of this Act shall be deemed to be the starting date of the relevant development project and the legal enforcement date shall be deemed to be the starting date of the development project. This provision shall not be considered prior to the enforcement date of the Act in order to prevent retroactive imposition of development charges on the development gains accrued before the enforcement date of the Act, and shall be interpreted to limit the starting date of the relevant development project to January 1, 1990, the enforcement date of the Act.

Meanwhile, Article 2(2) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13456, Sep. 13, 191; hereinafter referred to as the "Enforcement Decree") provides that the land price at the time of the commencement of a development project to be subject to this Act under Article 2(2) of the Addenda of the Act shall be the amount calculated by subtracting the increase in normal land prices up to the time of the commencement of the development project from the value calculated by the officially announced land price as of the enforcement date of this Decree less the increase in land prices up to the time of the commencement of the development project. According to Article 2(1) of the Addenda of the Act, the imposition of charges on such project shall be calculated and imposed by calculating the amount equivalent to the project implementation period after the enforcement date of this Decree within the total project implementation period, from among the base amount calculated pursuant to Article 8 of the Act. The above provision provides that when calculating the land price at the time of the commencement of the development project, which is one of the criteria for imposition of development charges, the development project shall not be deemed the actual commencement period.

Therefore, a party member has already determined that Article 2 (2) of the Addenda of the Enforcement Decree of the above Enforcement Decree is invalid in violation of the mother law (see Supreme Court en banc Decision 93Nu6324 delivered on March 22, 1994). Article 2 (1) of the Addenda of the above Enforcement Decree also violates the mother law in the same reason.

Therefore, in this case where the court below, based on the above opinion, started the project implementation on August 19, 198 and completed the project on May 24, 1990, Article 2 (1) and (2) of the Addenda of the Enforcement Decree is invalid in violation of the purport of the provisions of the mother law. Thus, in calculating the development charges in this case, the judgment that the above Addenda provisions of the Enforcement Decree should not be applied, and that only Article 2 of the Addenda of the Enforcement Decree should be applied is just, and there is no error of law by misunderstanding the legal principles on the above law and the Enforcement Decree.

There is no reason to discuss this issue.

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.

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice), Kim Jong-soo Park, Park Jong-ho (Presiding Justice) and Lee Jae-ho (Presiding Justice) Lee Jin-sik, Lee Jong-hee, Lee Jong-hee, Lee Jin-kin, Kim Chang-kin, Lee Jong