In a case where an administrative agency imposes development charges pursuant to the Restitution of Development Gains Act on a downtown redevelopment project developer, the case holding that the land price as of the starting point shall be calculated on the basis of the officially announced land price, not the actual purchase price or acquisition price, for the land to be developed, and the development charges shall be calculated on the basis thereof shall be unlawful, and the entire disposition shall be revoked

In a case where an administrative agency imposes development charges pursuant to the Restitution of Development Gains Act on a downtown redevelopment project developer, the case holding that the land price as of the starting point shall be calculated on the basis of the officially announced land price, not the actual purchase price or acquisition price, and the development charges shall be calculated on the basis thereof, on the ground that it is unlawful in calculating the starting point on the basis of the officially announced land price, not the actual purchase price or acquisition price, and that the lawful imposition on the land price cannot be calculated on the basis of the materials submitted by the parties alone, in view of the fact that the project operator succeeded to the status of the former project operator and went through negotiations on purchase several occasions with the owners of undeveloped land through the service company, and that the administrative litigation against the expropriation ruling on a part of the land is underway and the ownership of the land is acquired through reconciliation and the court conciliation.

Articles 3, 8, and 10 (3) of the Restitution of Development Gains Act

Plaintiff (Law Firm Flaon, Attorneys Kim Dong-jin, Counsel for the plaintiff-appellant)

The head of Jongno-gu Seoul Metropolitan Government (Law Firm Doo, Attorneys Jeong-soo et al., Counsel for the plaintiff-appellant

July 2, 2009

1. The Defendant’s imposition of development charges of KRW 7,684,477,070 against the Plaintiff on March 13, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Nonparty 1 and 2 obtained project implementation authorization on July 6, 2001 from the Defendant for the implementation of the Cheongjin-gu Seoul Jongno-gu Urban Redevelopment Project (hereinafter “instant project”) and 80 parcel of 80,655 m2,000,000,000,000,000,000,000,000

B. On May 26, 2003, the Plaintiff entered into a sales contract with Nonparty 1 and 2 to purchase a total of 54 square meters of land owned by the Plaintiff in the said project implementation district at KRW 6,150.9 square meters and comprehensively succeeded to the status of the project implementer as a project implementer at the same time. On February 16, 2004, the Plaintiff obtained authorization for the change of the project implementer from the Defendant.

C. In addition, the Plaintiff acquired part of the land which was not purchased by consultation to proceed with the instant project through expropriation or litigation, etc., and completed the completion of the instant project on July 27, 2007.

D. On March 13, 2008, the Defendant considered the instant project as a project subject to the imposition of development charges under the Restitution of Development Gains Act (amended by Act No. 9045, Mar. 28, 2008; hereinafter “Development Gains Restitution Act”), and imposed development charges of KRW 7,684,47,070 on the Plaintiff (hereinafter “instant disposition”). Specific details for the calculation of development charges are as follows.

* Calculation Details [Development Charges = Development gains [Land at the time of termination £­ (land price at the time of commencement + normal increase in development gains + development costs + contributed amount) + 25%)]

O Area of the place of business: 6,023 square meters;

O Development gains: 184,407,302,024 won (the land at the time of termination) - 69,226,475,298 won (the land at the time of commencement) - 54,358,347,697 won (the land at the time of commencement) - 11,820,071,275 (development expenses) - 18,263,49,445 (amount of contribution acceptance) - 30,737,908,309 won (the amount of contribution acceptance) -

O Development charges: 30,737,908,309 won (development gains) ¡¿ 25 percent = 7,684,47,07,070 won (beer than ten won).

[Grounds for Recognition] Unsatisfy, each entry in Gap 1-8 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) An error in the calculation of land value as of the starting point

As the actual purchase price (58,201,662,780 won) out of the area of the instant business place (6,023.6 square meters) of the instant business place (58,201,662,780 won) has been acquired by consultation or administrative litigation by the Plaintiff, the remaining land (1,394.2 square meters) excluding the land (4,629.4 square meters) which is recognized as the land price as the place of commencement shall be calculated as the land price as of the commencement of the purchase.

(2) The development costs of capital gains are not added.

On May 26, 2003, the non-party 3 Co., Ltd. (the title truster to the non-party 1 and the non-party 2) transferred part of the business site of this case to the plaintiff on May 26, 2003, and bears the tax due to the transfer. Thus, the defendant did not recognize

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) On May 26, 2003, the Plaintiff entered into a service contract with the non-party 4 corporation for the business of the instant project by negotiation, expropriation of land, and surrendering, etc., and entered into a purchase consultation several times between the non-party 4 corporation and the non-party 4 corporation on July 3, 2003 through October 2003. The part of the land was purchased through consultation. As to the land of four parcels on which consultation including the land No. 7 and No. 8 had been concluded, the Plaintiff filed an application for adjudication of expropriation with the local Land Tribunal of Seoul Special Metropolitan City on October 9, 2003.

(2) Meanwhile, as well as Nonparty 1 and 2, the previous project operator, and the Plaintiff, via the said non-party 4 corporation, conducted a purchase consultation and an appraisal of compensation for land, etc. with landowners in the project implementation district, and requested the Defendant to appoint a present public official to obtain signatures or seals from landowners and persons concerned in connection with the preparation of land and goods protocols for land expropriation. The Defendant rejected the said request when requesting the purchase with the landowners, and made it possible to appoint a present public official on October 1, 2003 and prepare and sign and seal the land and goods protocols and documents in the presence of the owners of land and persons concerned. However, most landowners whose purchase agreement was concluded did not sign and seal the said agreement.

(3) The Plaintiff acquired ownership as follows with respect to the land under the assertion that the land price as of the starting point should be calculated at the actual purchase price (hereinafter “instant land”).

본문내 포함된 표 순번 토지(건물) 지번 토지 등 소유자 매매계약 체결일 매매가격(원) 토지취득과정 1 (지번 2 생략) 소외 5 2003. 9. 25. 14,023,900,000 5회에 걸친 매수협의 2 (지번 3, 4 생략) 소외 6 외 4인 2004. 11.16. 10,000,000,000 2회에 걸친 토지 및 건물 보상협의 3 (지번 5, 6 생략) 소외 7 2004. 1. 14. 7,600,000,000 2회에 걸친 토지 및 건물 보상협의 4 (지번 7~9 생략) 소외 8 2004. 2. 23. 2,067,060,000 2회에 걸친 토지 및 건물 보상협의 5 (지번 10 생략) 소외 9 2003. 9. 30 2,146,000,000 5회에 걸친 매수협의 6 (지번 11, 12 생략) 소외 10 ？ ？ 5회에 걸친 매수협의 및 토지수용이의재결, 행정소송을 거쳐 서울고등법원(2004누21083 호)에서 2007. 1. 25. 화해에 의하여 소유권취득 7 (지번 13 생략) 소외 11, 12 ？ ？ 5회에 걸친 매수협의 및 토지수용이의재결, 행정소송을 거쳐 서울고등법원(2004누21083 호)에서 2006. 12. 18.자 조정권고안에 의하여 소유권취득 8 (지번 14, 15 생략) 소외 13, 14 2003. 9. 30. 2,743,200,000 5회에 걸친 매수협의

[Reasons for Recognition] The facts without dispute, Gap 9 to 40, 42, Eul 6 (including each number), the purport of the whole pleadings

D. Determination

The development charges system is a system to realize economic justice and prevent speculation in land, thereby promoting the efficient use of land, in cases where a project operator partly recovers development gains in excess of normal increase in land prices due to the increase in land prices of land to be developed as a result of the implementation of the development project by the project operator. Therefore, in calculating the development gains, which are the premise for calculating the development charges to be imposed on the development project operator, the development gains that the person subject to imposition should actually obtain should be calculated so as to be close to the actual situation. In determining the development gains, it is reasonable to deem that the land purchase price as an item to be deducted includes all the amounts paid by the development project operator to the seller for the acquisition of the land regardless of the name thereof (see Supreme Court Decision 2007Du5103, Jun. 28, 2007).

In the case of this case, as seen earlier, the defendant requested Nonparty 1 and 2, etc., who are the previous project operator, to acquire land in the project execution area by means of consultation as much as possible, instead of land expropriation. The plaintiff succeeded to the status of the project operator of this case from Nonparty 1 and 2, and had held several consultations with the service company on purchase. In light of the time of preparation and details of the approval sale contract (see evidence Nos. 9 through 13 and 16 (including the number), which the plaintiff entered into with some owners of the land of this case, the authenticity of the sale contract is recognized. The plaintiff acquired ownership through reconciliation and court adjustment while an administrative litigation is pending against the adjudication on expropriation of part of the land of this case, and the acquisition price of the land of this case shall be calculated based on the actual purchase price or the sale price of the land of this case, which is not the acquisition price of the land of this case, based on development gains or the sale price of the land of this case, which is not the land of this case.

In addition, in a lawsuit seeking revocation of the imposition of development charges, where it is impossible to calculate the legitimate amount to be imposed lawfully by the data submitted by the parties, the entire imposition of development charges is to be cancelled (see Supreme Court Decision 99Du5542 delivered on June 9, 200, etc.). In this case, the data submitted by the parties alone cannot be calculated with the legitimate amount to be imposed lawfully, and thus, the entire disposition of this case cannot be revoked (On the other hand, the plaintiff asserted that the tax borne by the non-party 3 corporation should be recognized as development costs, but the non-party 3 corporation did not have any evidence to prove that it had paid such taxes. Thus, this part of the argument cannot be accepted without the need to further determine).

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Park Jong-dae (Presiding Judge)