[1] Requirements for a housing rental business operator to be excluded from the subject of imposition of excess ownership charges under the Act on the Ownership of Housing Site

[2] Requirements to be excluded from the imposition of excess ownership charges on an individual-owned housing site exceeding the upper limit of the ownership of each household held at the time of enforcement of the Act on the Ownership of Housing Site

[3] The meaning of "use plan under the provisions of Articles 10 through 15 of the Addenda to the Act on the Ownership of Housing Site" as stipulated in Article 2 (2) of the same Act

[1] In full view of the provisions of Article 11(1)2, 5, and (2) of the former Enforcement Decree of the Act on the Ownership of Housing Sites, Article 11(1)4, Article 10 subparag. 6 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 14363 of Aug. 19, 194), Article 3-2, and Article 5 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Ordinance No. 571 of Dec. 8, 1994), housing rental business operator, i.e., a person who wishes to lease a house with an exclusive area of 85 square meters or less at all times with a permission of the head of a Si/Gun for lease of housing for five or more years, or a person who intends to acquire a house with an exclusive area of 85 square meters or less for each household with a business registration under Article 5 of the same Act shall be deemed to have been registered as a business operator under Article 5 of the same Act.

[2] The use and development, which is the reason for the exclusion of individual ownership from the imposition of excess ownership charges, which exceeds the upper limit of individual ownership at the time of the enforcement of the Act on the Ownership of Housing Sites, shall be those falling under each subparagraph of Article 11(1) of the same Act, and the use and development shall not be exempted from the imposition of excess ownership charges if it is continuously used in accordance with the method of use at the time of enforcement of the same Act without using and developing the same content.

[3] The term "use plan under the provisions of Articles 10 through 15 of the Addenda of the Act on the Ownership of Housing Sites" means a plan that meets the criteria for permission for the acquisition of housing sites under the provisions of each subparagraph of Article 11 (1) of the same Act, which shall be submitted by the owner of housing sites exceeding the upper limit of the ownership of each household at the time of the enforcement of the Act on the Ownership of Housing Sites.

[1] Article 11(1)2, 5, and (2) of the Act on the Ownership of Housing Sites; Article 11(1)4, and Article 10 subparag. 6 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 14363, Aug. 19, 194); Article 3-2, and Article 5 of the former Enforcement Decree of the Act on the Ownership of Housing Sites / [2] Articles 11(1) and 20 of the former Enforcement Decree of the Act on the Ownership of Housing Sites / [3] Article 11(1) of the Act on the Ownership of Housing Sites; Article 2(2) of the Addenda of the Act on the Ownership of Housing Sites

[2] [3] Supreme Court Decision 94Nu13480 delivered on July 14, 1995 (Gong195Ha, 2818) / [2] Supreme Court Decision 94Nu4257 delivered on November 16, 1995 (Gong195Ha, 3809) / [3] Supreme Court Decision 94Nu2770 delivered on March 26, 1996

[Judgment of the court below]

The head of Seongbuk-gu Seoul Metropolitan Government

Seoul High Court Decision 94Gu26990 delivered on June 20, 1995

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

The grounds of appeal are examined.

As to the fourth ground for appeal

In full view of the provisions of Articles 11(1)2, 5, and (2) of the Act on the Ownership of Housing Sites (hereinafter “Act”), Articles 11(1)4, 10 subparag. 6 of the Enforcement Decree of the Act (amended by the Presidential Decree No. 14363, Aug. 19, 194; hereinafter “Enforcement Decree”), and Articles 3-2 and 5 of the Enforcement Rule of the Act (amended by the Ordinance No. 571, Dec. 8, 1994; hereinafter “Enforcement Rule”), a housing rental business operator, a person who intends to lease a house of 85 square meters or less at all times, or a person who intends to acquire a house of 85 square meters or less for lease of a house with an exclusive use area of 85 square meters or less for each household with permission from the head of a Si/Gun, shall first be registered as a business operator as prescribed in Article 5 of the Enforcement Rule, and this shall also be excluded from a house of 25 square meters or less for which is permitted to acquire a house under the Act.

According to the reasoning of the judgment below, the court below acknowledged the following facts based on the evidences: the plaintiff acquired and owned the housing site of this case prior to the enforcement of the Act, and leased the housing to another person; and the fact that the plaintiff did not register as a rental business operator under Article 11 (2) of the Act; therefore, the plaintiff is not a housing rental business operator under the above Act, and therefore the housing site of this case does not fall under the category of the housing site of this case. The judgment of the court below is justified on the premise of the legal principles mentioned above, and there is no error in the misapprehension of the legal principles as to the housing rental business operator.

As to the remaining grounds of appeal

The use and development, which is a reason for the exclusion of private housing lots owned by each household in excess of the upper limit of the ownership at the time of the enforcement of the Act, shall be those falling under each subparagraph of Article 11(1) of the Act, and the use and development shall not be exempted from the imposition of charges if the housing lots are continuously used in accordance with the method of use at the time of the enforcement of the Act without using and developing them (see, e.g., Supreme Court en banc Decision 94Nu4257, Nov. 16, 1995). In addition, the owner of a housing site exceeding the upper limit of the ownership of each household at the time of the enforcement of the Act shall submit a plan to use the housing site in compliance with the criteria for permission for the acquisition of housing lots under each subparagraph of Article 11(1) of the Act (see, e.g., Supreme Court Decision 94Nu270, Mar. 26, 1996).

Although the judgment of the court below is somewhat insufficient or inappropriate in its reasoning, even if the plaintiff used six houses with an exclusive area of 85 square meters or less which are constructed on the land of some of the land of this case by leasing to another person, the above land does not meet the criteria for permission for the acquisition of housing sites under Article 11 (1) 2 of the Act and Article 11 (1) 4 of the Enforcement Decree, unless it satisfies the requirements as a housing rental business operator under Article 11 (1) 2 of the Act and Article 11 (1) 4 of the Enforcement Decree. Therefore, the decision that the above land does not fall under the housing site excluded from the imposition of charges is justified on the premise of the above legal principles, and there is no violation of law as otherwise alleged in the ground of appeal. In addition, if the plaintiff submitted a use plan only under Article 2 (2) of the Addenda of the Act with respect to the housing site exceeding the ownership of each household at the time of the enforcement of the Act, the claim that the housing site should be excluded from the imposition of charges,

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)