[1] In a case where the purchase price reported by a person liable for payment does not fall under the purchase price under Article 9 (5) of the Enforcement Decree of the Restitution of Development Gains Act, if the purchase price is acknowledged, whether the land price as of the starting point should be calculated

[2] The deadline for submitting purchase price or documentary evidence of development costs for calculating development charges (i.e., until the imposition of development charges)

[3] Whether the report of purchase price is an essential act (negative)

[1] In the proviso of Article 10 (3) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), the land price as of the starting point of imposition shall be calculated on the basis of the actual purchase price as determined by the Presidential Decree, and the land price as of the starting point of imposition becomes invalid on the basis of the Constitutional Court’s decision of unconstitutionality. As a result, even if the purchase price reported by the person liable for payment does not constitute the purchase price under Article 9 (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), if the purchase price can be recognized, the land price as of the starting point of imposition shall be calculated,

[2] The provisions of Articles 4 and 14 of the Enforcement Rule of the Restitution of Development Gains Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 535, Aug. 12, 1993) are delegated by the Act, but the provisions of the Act are procedural provisions to facilitate the administrative convenience, such as prompt and accurate imposition and collection of development charges, and have the character of simple administrative rules. Whether the land price as of the starting point of imposition of the land and donated land should be calculated on the basis of the purchase price or the individual land price should be calculated on the basis of the imposition of development charges. Thus, even if the reporting period or submission period stipulated in the above Enforcement Rule is exceeded, if it can be recognized by reporting the purchase price of the land and donated land until the imposition of development charges, and supporting documents, etc. submitted, the land

[3] Since the report of purchase price cannot be deemed as an act in need of food, it is reasonable to view that even if the documents stipulated in Articles 4 and 14 of the Enforcement Rule of the Restitution of Development Gains Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 535 of Aug. 12, 1993) are not submitted, the specific amount of purchase price of the land or donated land subject to imposition should be presented to the imposing

[1] Article 10(3) of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995), Article 9(5) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 14447 of Dec. 23, 1994) / [2] Articles 10(3) and 20 of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995), Article 10(2) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 14447 of Dec. 23, 1995), Articles 4 and 14 of the former Enforcement Rule of the Restitution of Development Gains Act (amended by Presidential Decree No. 9457 of Feb. 15, 1997) / [3] Article 19 of the former Enforcement Rule of the Restitution of Development Gains Act (amended by Presidential Decree No. 14584 of Dec. 14, 19497 of Feb. 194 of the Act)

[1] Constitutional Court Decision 95Hun-Ba35, 97Hun-Ba81, 98Hun-Ba5, 10 (Hun-Ba28, 113), Supreme Court Decision 98Du7565 delivered on September 4, 1998 (Gong198Ha, 2428), Supreme Court Decision 97Du1579 delivered on October 2, 1998 (the same purport) / [2] Supreme Court en banc Decision 92Nu13677 delivered on May 11, 1993 (Gong193Ha, 1726), Supreme Court Decision 93Nu7518 delivered on August 27, 1993 (Gong193Ha, 26519), Supreme Court Decision 93Nu3909 delivered on October 39, 1993 (Gong193Ha, 26519).

The party-friendly Housing Co., Ltd. (Attorney Kim Tae-tae, Counsel for the defendant-appellant)

Dagjin-do, Chungcheongnam-do

Daejeon High Court Decision 97Gu636 delivered on August 22, 1997

The part of the judgment below against the plaintiff is reversed, and the case is remanded to the Daejeon High Court.

We examine the grounds of appeal.

1. Facts established by the court below

On June 1, 1994, the Plaintiff purchased forest land of 12,302 square meters in Chungcheongnam-Nam ( Address 1 omitted), and implemented a housing site development project for constructing apartment buildings on the said ground after obtaining approval for the housing construction project plan on June 1, 1994, and completed the project on April 30, 1996. The Defendant calculated the value of the land subject to the instant imposition as of June 1, 1994, based on the officially assessed individual land price, which is the starting point for imposing development charges. The Defendant calculated the value of the instant land as of June 1, 1994, based on the officially assessed individual land price. In relation to the instant housing site development project, the Plaintiff calculated the development charges to the Plaintiff based on the amount of 71 square meters in Chungcheongnam-Nam ( Address 2 omitted), 75 square meters in ( Address 4 omitted), 325 square meters in response to the address 325 square meters in response to the instant housing site development project.

2. The judgment of the court below

The lower court determined as follows, on the Plaintiff’s assertion that it was unlawful because the Defendant calculated based on the officially assessed individual land price, even though the land price at which the instant land was imposed and the land donated should be calculated based on the actual purchase price.

According to Article 10(3) of the Restitution of Development Gains Act, Article 9(5) of the Enforcement Decree of the same Act, and Article 4 of the Enforcement Rule of the same Act, in order to calculate the land price as of the starting point of imposition of the land subject to imposition on the actual purchase price, the purchase price shall be the price stipulated in Article 9(5) of the same Enforcement Decree, and in addition, the obligor shall report the purchase price within the period stipulated in Article 4 of the same Enforcement Rule. In addition, there is no assertion or proof that the purchase price alleged by the Plaintiff is the price stipulated in Article 9(5) of the same Enforcement Decree, and there is a person who fails to report the purchase price within 25 days from the completion date of imposition stipulated in Article 4 of the Enforcement Rule of the same Act

Meanwhile, according to Article 20 of the same Act, Article 10 (2) of the Enforcement Decree of the same Act, and Article 14 (1) of the Enforcement Decree of the same Act, when a person liable to pay development charges submits a calculation sheet and documentary evidence concerning the purchase price of donated land, he/she may calculate the land price as of the starting point of imposition according to the actual purchase price and deduct it. However, the Plaintiff did not submit the calculation sheet and documentary evidence, and thus, the land price as of the starting point

3. The judgment of this Court

In the proviso of Article 10 (3) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), only in cases as prescribed by the Presidential Decree, the land price as of the actual purchase price shall be calculated on the basis of the actual purchase price shall be lost from the date of the decision by the Constitutional Court of June 25, 1998, which was sentenced in violation of the Constitution. The effect of the decision of unconstitutionality is that the pertinent provision of the law is the premise of the decision, and it also affects this case pending in the court. Accordingly, even if the purchase price reported by the person liable for payment does not fall under the purchase price as provided in Article 9 (5) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 13956 of Aug. 12, 1993), the land price as of the starting date of the imposition shall be calculated on the basis of the publicly assessed individual land price as of the starting date.

In addition, the proviso of Article 10 (3) of the same Act provides that if the purchase price is reported within the period as determined by the Ordinance of the Ministry of Construction and Transportation, the land price shall be calculated on the basis of the purchase price, and Article 4 of the Enforcement Rule of the same Act (amended by the Ordinance No. 535 of Aug. 12, 1993; hereinafter the same shall apply) provides that a copy of the purchase certificate or a copy of the register of the land shall be submitted within 25 days from the expiration date of the imposition. Article 20 of the same Act and Article 10 (2) of the Enforcement Decree of the same Act provides that a detailed statement necessary for the calculation of development costs and evidential documents shall be submitted as prescribed by the Ordinance of the Ministry of Construction and Transportation. Article 14 of the Enforcement Rule of the same Act provides that the purchase price shall be calculated on the basis of the procedures for prompt and accurate administrative convenience of the imposition and collection of development charges, and that the purchase price shall be calculated on the basis of the price of the land which is subject to imposition and the same price shall not be determined on the purchase price.

According to the records, the plaintiff, after completing the development project on April 30, 1996, received a notice of scheduled development charges from the defendant on June 7 of the same year, along with a land cadastre/land sale contract, and claimed that the land price as of the starting point of imposition of the land subject to imposition should be calculated based on the actual purchase price, when making a request for examination prior to notification, along with a land cadastre/land sale contract, etc.... Therefore, the court below erred by misapprehending the legal principles as to calculation of the starting point of imposition, which affected the conclusion of the judgment, and by misapprehending the legal principles as to the starting point of imposition, the ground of appeal pointing this out is justified.

4. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)