In case of joint development or sole development with adjacent land designated as an urban design area, whether the land subject to deliberation by the urban design coordination committee falls under the “land whose use is limited by the provisions of Acts and subordinate statutes”

In the case of joint development or sole development with adjacent land by being 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), the land to be constructed is a land that can be constructed only after the owner's independent opinion alone is impossible and consultation with the owner of the adjacent land or a prescribed deliberation is conducted, and its use is restricted beyond the ordinary limit according to the purpose of the land. Thus, the land above shall be deemed as the land whose use is restricted by the provisions of the Act and subordinate statutes under Article 8(3) of the Land Excess Profits Tax Act and Article 23 subparagraph 1 of the Enforcement Decree of the same Act.

Article 8(3) of the Land Excess Profit Tax Act, Article 23 subparag. 1 of the Enforcement Decree of the same Act, Article 8-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991)

Supreme Court Decision 93Nu15946 delivered on January 14, 1994 (Gong1994Sang, 745) 93Nu2305 delivered on January 25, 1994 (Gong1994Sang, 854 delivered on February 8, 1994) 93Nu18266 delivered on February 8, 1994

Plaintiff 1 and one other

Head of the tax office

Seoul High Court Decision 92Gu22031 delivered on December 24, 1992

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, in determining the plaintiff's assertion that the land of this case (Seoul (Seoul) is a land, the use of which is prohibited or restricted pursuant to the provisions of Acts and subordinate statutes after acquiring it, the plaintiffs jointly acquired the land of this case on March 8, 1974. The land of this case is the land of this case under Article 53 of the former Building Act (amended by Act No. 4381 of May 31, 1991) as a public announcement of February 4, 1987, under Article 8-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991). The court below determined that, in the case of the land of this case (Seoul), if the land of this case can be constructed only with adjacent land and joint development, it should be deliberated by the Seoul Metropolitan Government Mediation Committee for Urban Design, and the meaning of the land of this case is a case where the exercise of the right to use land is completely prohibited or restricted by the provisions of Acts and subordinate statutes, i.

However, in the case of joint development or sole development with adjacent land by being designated as an urban design zone under the former Building Act, the land which is to be deliberated upon by its own intention is impossible to construct only after consultation with the neighboring land owner or a prescribed deliberation. Thus, it is particularly limited to use beyond the ordinary limit according to the use of the land. Thus, in light of the purport that Article 8(3) of the Land Excess Profits Tax Act and Article 23(1) of the Enforcement Decree of the same Act does not impose taxes on the above land excess profit for three years since the land was acquired, and its use is prohibited or restricted under the provisions of the Act and subordinate statutes after its acquisition, and is not considered as idle land for three years, it shall be deemed that the above land is “land, the use of which is restricted by the provisions of the Act and subordinate statutes” under the above Act and subordinate statutes (see, e.g., Supreme Court Decision 93Nu18266, Feb. 8, 1994).

Nevertheless, the court below held that the land of this case cannot be deemed as being prohibited or restricted by the provisions of the law. Thus, the court below erred by misapprehending the legal principles as to the land use prohibited or restricted by Article 8(3) of the Land Excess Profit Tax Act and Article 23(1) of the Enforcement Decree of the same Act, and there is a ground to point this out.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)