[Judgment of the court below]

port of destination

August 28, 2014

Suwon District Court Decision 2013Guhap10206 Decided December 4, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The Defendant’s imposition of development charges of KRW 54,854,750 against the Plaintiff on June 13, 2012 shall be revoked.

1. Factual basis

(a) A development project of the area of not less than 853 square meters in Yeongdeungpo-si ( Address 1 omitted);

1) On May 8, 1974, the Plaintiff purchased a lot of 853 square meters ( Address 1 omitted) (hereinafter “instant land”) in Yeongdeungpo-gu ( Address 1 omitted) and completed the registration of ownership transfer on July 4, 1981.

2) On January 20, 2010, the head of Yeongdeungpo-si rendered a building permit pursuant to Article 11(1) of the former Building Act (amended by Act No. 12246, Jan. 14, 2014) with respect to the Plaintiff’s construction of one unit of a warehouse of a general steel structure on the instant land ( Address 1 omitted).

3) Around May 2011, the Plaintiff completed the construction of the above warehouse, and the head of Young-si ○○○ was approved for the use of the above warehouse building on May 6, 2011 pursuant to Article 22(2) of the former Building Act (amended by Act No. 11690, Mar. 23, 2013).

4) On May 11, 201, the land category on the land cadastre of the instant case was changed from the land cadastre to the “ware site”.

(b) A development project of the area of 681 square meters or more prior to Yongsan-si ( Address 2 omitted);

1) On May 8, 1974, the Plaintiff purchased 681 square meters (hereinafter referred to as “instant land”) prior to the Sogdong-gu ( Address 2 omitted) (hereinafter referred to as the “instant land”) and completed the registration of ownership transfer on July 4, 1981.

2) On February 3, 2010, the head of Yeongdeungpo-si rendered a construction permit pursuant to Article 11(1) of the former Building Act (amended by Act No. 12246, Jan. 14, 2014) with respect to the Plaintiff’s construction of one-class neighborhood living facilities (retail stores) of the first floor structure on the instant land ( Address 2 omitted).

3) On July 25, 2011, in order for the Plaintiff to construct a Class 1 neighborhood living facility on the instant land ( Address 2 omitted), the Plaintiff granted permission for development activities in accordance with Article 56(1)2 of the National Land Planning and Utilization Act as to development activities, changing the form and quality of 668 square meters among them into a site and changing the remaining 13 square meters into a road.

4) Around March 2012, the Plaintiff completed the alteration of the form and quality of the instant land and the construction of a Class I neighborhood living facility building; the head of the ○○○○○, on March 7, 2012, the Plaintiff completed a completion inspection on the alteration of the form and quality of the instant land pursuant to Article 62(1) of the former National Land Planning and Utilization Act (Amended by Act No. 11690, Mar. 23, 2013); and the completion inspection on the alteration of the form and quality of the instant land on March 28, 2012 pursuant to Article 22(2) of the former Building Act (Amended by Act No. 11690, Mar. 23, 2013).

5) On March 30, 2012, the instant land ( Address 2 omitted) was divided into 668 square meters and 13 square meters prior to the Gidong-gu ( Address 2 omitted) and 3 square meters prior to the said date. On the same day, the land category on the land cadastre was changed into “from “the land category on the land cadastre,” “the land category on the land cadastre,” “the land category on the land cadastre,” “the land category on the land cadastre,” respectively.

C. Imposition of Defendant’s development charges

1) On June 13, 2012, on the following grounds, the Defendant: (a) deemed that the instant ( Address 1 omitted) land development project and the instant ( Address 2 omitted) land development project constituted a development project subject to the imposition of development charges; and (b) imposed the Plaintiff the development charges of KRW 834,590 on the instant ( Address 1 omitted); and (c) KRW 54,854,750 on the instant ( Address 2 omitted); and (d) imposed the development charges of the instant (hereinafter the subsequent disposition imposing development charges of KRW 54,854,750 on the instant (hereinafter “instant disposition imposing the development charges”).

① The Plaintiff constructed a warehouse on the instant land with a building permit granted under Article 11(1) of the Building Act, and the category of the instant land ( Address 1 omitted) is changed from the “building site” to the “building site.” This constitutes a development project subject to development charges, as it constitutes “a site preparation project for construction of warehouse facilities based on the Building Act or for a project accompanied by a change of land category in the public record,” under Article 5(1)5 of the former Restitution of Development Gains Act (Amended by Act No. 12245, Jan. 14, 2014; hereinafter “Act”); Article 5(1)5 of the former Enforcement Decree of the Restitution of Development Gains Act; Article 4(1)5 of the former Enforcement Decree of the Restitution of Development Gains Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter “Enforcement Decree”).

② The Plaintiff obtained permission for development activities under Article 56 (1) 2 of the National Land Planning and Utilization Act, and changed the form and quality of the instant land for the purpose of constructing Class I neighborhood living facilities. This constitutes a development project subject to development charges as “project to develop land for the purpose of constructing Class I neighborhood living facilities implemented according to permission for development activities under Article 56 (1) 10 of the Act, Article 4 (1) 10 of the Enforcement Decree of the Restitution of Development Gains Act, Article 4 (1) 10 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 1 of the Ministry of Land, Infrastructure and Transport before March 23, 2013; hereinafter “Enforcement Rule”) and subparagraph 1 (b) of attached Table 4 (6) 1 of the former Enforcement Rule of the Restitution

③ Although the area of the instant land is less than 853 square meters and the area of the instant ( Address 2 omitted) land is less than 681 square meters to constitute a development project subject to development charges, the area of the instant land is less than the minimum area of 90 square meters (Article 4(1)2 of the Enforcement Decree) to constitute a development project subject to development charges. However, the Plaintiff is the owner of the instant land ( Address 1 omitted) and ( Address 2 omitted), and the development project of the instant land is within five years from May 6, 2011 when the completion of the development project of the instant ( Address 1 omitted) is within five years from May 6, 201, when the development project of the instant land is completed, with permission for development activities under Article 56(1)2 of the National Land Planning and Utilization Act, and thus, the development project of the instant ( Address 2 omitted) and the area of the instant land is deemed to be implemented in accordance with the latter part of Article 4(1) of the Enforcement Decree, and the development project is deemed to be more than 153481 square meters.

본문내 포함된 표 ◆ 구 「개발이익환수에 관한 법률」(2014. 1. 14. 법률 제12245호로 개정되기 전의 것) ○ 제5조(대상 사업) ① 개발부담금의 부과 대상인 개발사업은 다음 각 호의 어느 하나에 해당하는 사업 등으로 한다. 5. 물류시설용지조성사업 10. 제1호부터 제8호까지의 사업과 유사한 사업으로서 대통령령으로 정하는 사업 등 ② 동일인이 연접한 토지를 대통령령으로 정하는 기간 이내에 사실상 분할하여 개발사업을 시행한 경우에는 전체의 토지에 하나의 개발사업이 시행되는 것으로 본다. ③ 제1항 및 제2항에 따른 개발사업의 범위·규모 및 동일인의 범위 등에 관하여 필요한 사항은 대통령령으로 정한다. ◆ 구 「개발이익환수에 관한 법률 시행령」(2013. 3. 23. 대통령령 제24443호로 개정되기 전의 것) ○ 제4조(대상 사업) ① 법 제5조에 따라 부담금의 부과 대상이 되는 개발사업의 범위는 별표 1과 같고, 그 규모는 관계 법률에 따라 국가 또는 지방자치단체로부터 인가·허가·면허 등(신고를 포함하며, 이하 "인가 등"이라 한다)을 받은 사업 대상 토지의 면적(부과 종료 시점 전에 「측량·수로조사 및 지적에 관한 법률」 제84조에 따라 등록 사항 중 면적을 정정한 경우에는 그 정정된 면적을 말한다)이 다음 각 호에 해당하는 경우로 한다. 이 경우 동일인[배우자 및 직계존비속(직계존비속)을 포함한다. 이하 같다]이 연접한 토지[동일인이 소유한 연속된 일단의 토지인 경우를 포함한다]에 하나의 개발사업이 끝난 후 5년 이내에 개발사업의 인가 등을 받아 사실상 분할하여 시행하는 경우에는 각 사업의 대상 토지 면적을 합한 토지에 하나의 개발사업이 시행되는 것으로 본다. 1. 특별시 또는 광역시의 지역 중 도시지역인 지역에서 시행하는 사업(제3호의 사업은 제외한다)의 경우 660제곱미터 이상 2. 제1호 외의 도시지역인 지역에서 시행하는 사업(제3호의 사업은 제외한다)의 경우 990제곱미터 이상 (이하 생략) [별표 1] 개발부담금 부과 대상 개발사업(제4조 관련) 사업 종류 근거 법률 사업명 5. 물류시설용지조성사업 ·「건축법」 ·창고시설의 설치로 사실상 또는 공부상(공부상) 지목변경이 수반되는 사업을 위한 용지조성사업 10. 그 밖에 제1호부터 제8호까지의 사업과 비슷한 사업 · 그 밖의 법률 ·제1호부터 제8호까지의 사업과 비슷한 사업으로서 다음의 허가(신고를 포함한다)에 따라 시행하는 사업 중 국토해양부령으로 정하는 사업 및 사실상 또는 공부상의 지목변경이 수반되는 사업(괄호 부분 생략) - 「국토의 계획 및 이용에 관한 법률」 제56조에 따른 개발행위허가 ◆ 구 「개발이익환수에 관한 법률 시행규칙」(2013. 3. 23. 국토교통부령 제1호로 개정되기 전의 것) ○ 제4조(부담금 부과 대상 사업 등의 범위) ⑥ 영 별표 1 제10호의 사업명란 중 "제1호부터 제8호까지의 사업과 비슷한 사업으로서 다음의 허가(신고를 포함한다)에 따라 시행하는 사업 중 국토해양부령으로 정하는 사업"이란 별표 1에서 정하는 사업(괄호 부분 생략)을 말한다. [별표 1] 개발부담금 부과 대상 사업(제4조제2항·제5항 및 제6항 관련) 1. 「건축법 시행령」 별표 1에 따른 건축물 중 다음 각 목의 건축물을 건축하기 위한 용도로 토지를 개발하는 사업(괄호 부분 생략) 나. 제3호의 제1종 근린생활시설(바목·사목·아목 및 자목은 제외한다) 및 제4호의 제2종 근린생활시설

2) The Defendant calculated development charges for land development projects in the instant case ( Address 1 omitted) KRW 834,590 by the following methods:

(1) The value of land in this case ( Address 1 omitted) on May 6, 2011, which is the end point of imposition: 360,172,848 won.

(2) The value of the land in this case ( Address 1 omitted) on January 20, 2010, which is the starting point of imposition: 330,086,455 won.

(3) Increase in normal land prices from January 20, 201 to May 6, 2011: 26,618,008 won.

(4) Development costs: 130,000 won (it shall be 130,000 won as development costs because the plaintiff fails to submit a detailed statement of development costs).

⑤ Development Gains: 3,38,385 won (=360,172,848 won-330,086,455 won-26,618,008 won-130,000 won)

(6) Development charges: 834,590 won (=3,338,385 won x 25%)

3) The Defendant calculated development charges for land development projects in the instant case ( Address 2 omitted) in the following manner:

(1) The value of land in this case ( Address 2 omitted) on March 7, 2012, which is the end point of imposition: 454,070,857 won.

(2) The value of the land in this case ( Address 2 omitted) on July 25, 201, which is the starting point of imposition: 154,175,027 won.

(3) Increase in normal land prices from July 25, 2011 to March 7, 2012: 5,812,672 won.

(4) Development costs: 74,64,130 won.

⑤ Development Gains: 219,419,028 won (=454,070,857 won-154,175,027 won-5,812,672 won-74,664,130 won)

(6) Development charges: 54,854,750 won (=219,419,028 won x 25%)

4) On December 4, 2012, the Plaintiff submitted to the Defendant a detailed statement that calculated the development costs of the instant ( Address 1 omitted) land as KRW 19,136,974. On December 10, 2012, the Defendant revoked the disposition imposing development charges of KRW 834,590 for the said development project on the ground that the development gains of the instant ( Address 1 omitted) land development project are zero won.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 14 (including paper numbers), Eul evidence 1 to 8 (including paper numbers) and the purport of the whole pleadings

2. The plaintiff's assertion

A. Main assertion

For the following reasons, the Plaintiff asserts that the disposition of the instant development charges should be revoked on the grounds that the instant land development project does not fall under the development project subject to the imposition of development charges.

1) Since subparagraph 5 of attached Table 1 of Article 4(1) of the Enforcement Decree uses the expression “land creation project”, it constitutes a development project subject to the imposition of development charges under Article 5(1)5 of the Act and subparagraph 5 of attached Table 1 of attached Table 4(1) of the Enforcement Decree only where land is cut, filled, etc. and where land is cut and filled up.

However, since the Plaintiff constructed a warehouse on the land of this case ( Address 1 omitted), which was in the state of flat site, and did not perform the construction work of flating the above land such as cutting and banking, the instant land development project does not constitute a development project subject to the imposition of development charges under Article 5(1)5 of the Act and Article 4(1)5 of the Enforcement Decree of the Act.

2) Since the instant development project does not fall under the development project subject to the imposition of development charges, determination of whether the instant development project satisfies the requirements of not less than 990§³ on the basis of only the size of the instant land (location 2 omitted). Since the instant land area falls short of the size of not less than 681§³ with the size of not less than 990§³, the instant land development project does not fall under the development project subject to the imposition of development charges.

B. Preliminary assertion

The Plaintiff asserts that, even if the land development project falls under the development project subject to the imposition of development charges, the Defendant calculated the development charges and assessed the value of the instant land on March 7, 2012 at the time when the imposition is completed as follows, and thus, the disposition of imposition of the development charges of this case should be revoked illegally.

1) At the time of March 7, 2012, the Plaintiff used a Class 1 neighborhood living facility building constructed on the instant land as a warehouse for storing agricultural machinery, etc. owned by the Plaintiff. Therefore, the value of the instant land should be assessed on the premise that the use of the instant land is a residential purpose.

2) Nevertheless, the Defendant assessed the value of the instant land on the premise that the use situation of the instant land was commercial. Thus, the Defendant assessed the value of the instant land ( Address 2 omitted) by mistake.

3. Determination

A. As to the primary argument

In full view of the following circumstances, even if the Plaintiff did not conduct construction work in the instant ( Address 1 omitted) land such as cutting and banking, it is reasonable to deem that the instant land development project constitutes a development project subject to development charges under Article 5(1)5 of the Act and Article 4(1)5 of the Enforcement Decree of the same Act, and Article 4(1)5 of the Enforcement Decree of the same Act. Therefore, the Plaintiff’s primary assertion is without merit without any need to examine whether the Plaintiff was the Plaintiff.

(1) Where warehouse facilities are installed on land, the category of which on the public cadastral book is land, such as a paddy field, paddy field, forest, etc. with permission for construction under the Building Act, the main purpose and category of land on the public cadastral book is changed to a warehouse site, and the value of the land concerned may increase in excess of the increases in normal increase in land prices. Accordingly, imposing development charges on the development gains thereby may be deemed in line with the legislative intent of the Restitution of Development Gains Act. The same applies to cases where the said land has already been flat prior to the execution of the project, and the construction, such as cutting and banking, is not separately conducted.

However, if the project is deemed a development project subject to the imposition of development charges under Article 5(1)5 of the Act and the main sentence of Article 4(1)5 of the Enforcement Decree, if the project is deemed the development project subject to the imposition of development charges under Article 5(1)5 of the Act and the main sentence of Article 4(1)5 of the Enforcement Decree, the development charges may not be imposed, as alleged by the Plaintiff

(2) Attached Table 1 Subparagraph 5 of attached Table 1 of the Enforcement Decree uses the expression “the creation of site”. In light of the overall context of the above provision, it shall be deemed as “the creation of warehouse site”.

However, even if the construction of storage facilities is not only to construct the storage facilities but also to construct the storage facilities on the land which is not a warehouse site, if the category of the land in the public cadastral book changes into the main purpose of the land or the category of the land in the public cadastral book to the warehouse site by constructing warehouse facilities on the land which is not a warehouse site, it may also constitute the construction of warehouse site.

Therefore, in the latter case, it cannot be said that the latter case is included in the “land creation” under subparagraph 5 of attached Table 1 of Article 4(1) of the Enforcement Decree, and it goes beyond the meaning of the text.

③ On June 25, 2008, the Enforcement Decree of the Restitution of Development Gains Act was amended by Presidential Decree No. 20878 on June 25, 2008, and Article 4(1) main sentence subparagraph 5 of attached Table 1 of the Enforcement Decree of the Restitution of Development Gains Act was newly established "project for creating a site for a project in fact or for which a change of land category is required due to installation of warehouse facilities based on the Building Act or in the public register." In light of the newly established circumstances, including the above provisions in the “land creation”

Article 5 (1) 10 of the former Restitution of Development Gains Act (wholly amended by Act No. 9045 of Mar. 28, 2008) provides that "a project accompanying a land category change, which is prescribed by Presidential Decree," as one of the development projects subject to the imposition of development charges. Article 4 (1) (main sentence) subparagraph 9 of the former Enforcement Decree of the Restitution of Development Gains Act (wholly amended by Presidential Decree No. 20878 of Jun. 25, 2008) provides that "a project accompanying a change of land category in fact or public record due to construction of buildings prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs based on the Building Act," and Article 3-2 (2) 1 (c) of the former Enforcement Rule of the Restitution of Development Gains Act (wholly amended by the Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 23 of Jun. 25, 2008) provides that "a building prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs as one of the above construction site.

Therefore, in a case where the land category on the public cadastral register is constructed with a building permit under the Building Act and the main purpose of the land or the category of land in the public cadastral book is changed to a warehouse site, it constitutes a development project subject to the development charges under the Act prior to the amendment, the Enforcement Decree, and the Enforcement Rule prior to the amendment. In this case, the Supreme Court precedents at the time interpreted it as a development project subject to the development charges even if the relevant land does not perform the construction work normally through cutting, banking, etc. (see Supreme Court en banc Decision 98Du18619, Dec. 16, 199; Supreme Court Decision 97Nu16787, Jan. 18, 200).

After that, as the Restitution of Development Gains Act was wholly amended by Act No. 9045 on March 28, 2008, Article 5(1)5 of the Restitution of Development Gains Act was newly stipulated as one of the development projects subject to the imposition of development charges under Article 5(1)5, and as the Enforcement Decree of the Restitution of Development Gains Act was wholly amended by Presidential Decree No. 20878 on June 25, 2008, the development projects subject to development charges under the former part of Article 4(1)1 subparagraph 5 of the Enforcement Decree of the Restitution of Development Gains Act were newly stipulated as the development projects subject to the imposition of development charges under the former part of Article 4(1)1 of the Act.

Accordingly, on June 25, 2008, the Enforcement Rule of the Restitution of Development Gains Act was wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 23 on June 23, 2008, Article 4 (2) of the Enforcement Rule of the Restitution of Development Gains Act excluded “ware facilities” from “building determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs” (Article 3-2 of the Enforcement Rule before the amendment). (The Ministry of Land, Transport and Maritime Affairs at the same time amended the Enforcement Rule of the Restitution of Development Gains Act on the grounds for the amendment of the above Enforcement Rule, and explained that “the Ministry of Land, Transport and Maritime Affairs intends to adjust the scope of the business subject to the imposition of the charges by reflecting the results as it included a site development project, logistics terminal project, and warehouse construction project in a logistics facility site development project subject to development charges after the amendment of the Enforcement Decree of the Restitution of Development Gains Act, which is subject to development charges.”

In full view of the aforementioned developments and reasons for the amendment, it is reasonable to view that the above Supreme Court precedents on the interpretation of the Act prior to the amendment also apply to the interpretation of the amended Act, since the development project subject to the imposition of development charges under Article 5(1)10 of the Act prior to the amendment, Article 4(1)9 of the Enforcement Decree, Article 3-2(2)1(c) of the Enforcement Decree, Article 5(1)5 of the amended Act, Article 4(1)5 of the Enforcement Decree, and subparagraph 5(a) of attached Table 1 of the Enforcement Decree, Article 4(1) of the former Enforcement Decree, are partly modified.

B. As to the conjunctive argument

As long as the Plaintiff completed each of the above construction around March 7, 2012, the value of the instant land as of March 7, 2012, after obtaining permission to construct a Class I neighborhood living facility and permission to engage in a change in the form and quality of a building on the instant land ( Address 2 omitted), shall be assessed on the premise that the use of the land is commercial, on the premise that the use of the land is commercial, and such assessment cannot be conducted solely on the sole basis as alleged by the Plaintiff.

Therefore, the plaintiff's conjunctive assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jong-soo (Presiding Judge)