[1] The time when the farmland creation cost payment obligation to be borne by the person who intends to divert farmland after consultation under Article 4 (4) of the former Farmland Preservation and Utilization Act is established

[2] The meaning of "farmland" under Article 2 subparagraph 1 of the former Farmland Preservation and Utilization Act

[3] The case holding that the land category in the public register is not subject to the imposition of farmland creation cost and exclusive charges due to actual siteization even before the land category in the public register

[4] In a case where farmland creation cost and farmland diversion charges are voluntarily paid, whether the disposition of imposition may be sought against the rural development corporation (affirmative)

[1] In full view of Articles 2 subparag. 7 and 4 of the former Farmland Preservation and Utilization Act (repealed by Article 2 of the Addenda to the Farmland Act, Act No. 4817 of Dec. 22, 1994), and Article 45-2 of the Act on the Special Measures for the Development of Farmland, in the case of "the person who intends to divert farmland after consultation pursuant to Article 4(4) of the former Farmland Preservation and Utilization Act (repealed by Article 2 of the Addenda to the Farmland Act, Act No. 4817 of Dec. 22, 1994)" or "the person who intends to divert farmland with consultation, consent, or approval pursuant to Article 5(1)", unlike the case of "the person who intends to divert farmland with the consultation, consent, or approval pursuant to paragraph (2) of the same Article, the time when he actually intends to divert farmland shall be deemed as the time when the farmland creation cost obligation is established, not the time of consultation pursuant to paragraph (2) of the same Article.

[2] In order to impose farmland creation cost and farmland diversion charges due to farmland diversion, such land shall be "farmland as stipulated in Article 2 subparagraph 1 of the former Farmland Preservation and Utilization Act (repealed by Article 2 of the Addenda to the Farmland Act, Act No. 4817 of December 22, 1994)". Whether it is farmland as stipulated in the above Article shall be determined according to the actual state of the land concerned regardless of the land category in the public record, regardless of the land category in the public record, and even if the land category in the public record is prior to the transfer of land category, if the land is lost as farmland and the state of loss is not deemed temporary, it shall not be deemed farmland as stipulated in the above Act

[3] The case holding that, although the land category on the land cadastre was the whole land category, it has already lost the phenomenon as farmland before approval for the construction report due to the construction work of a factory site from around 1987 to around 198, and it cannot be deemed that it cannot be deemed as temporary because it is impossible to re-use the relevant land as a site for farmland or multi-living plant cultivation site and other facilities necessary for the preservation or use of farmland, and it does not constitute farmland subject to imposition such as farmland creation cost

[4] The Rural Development Corporation imposed and collected the farmland creation cost and farmland diversion charge on the owner of the pertinent land, and then reported and paid the farmland creation cost, etc. to the collection agency using a written confirmation, etc. issued by the head of the non-party basic local government, such payment act is merely an act of performing the duty to pay the farmland creation cost, etc. imposed by the relevant disposition, barring any special circumstance. Therefore, in cases where a defect in the relevant disposition is found to constitute grounds for revocation, the said owner may still seek the revocation

[1] Article 2 subparagraph 7 (see current Article 2 subparagraph 9), Article 4 (see current Article 36 of the Farmland Act), Article 45-2 of the Act on the Special Measures for the Conservation and Utilization of Farmland / [2] Article 2 subparagraph 1 (see current Article 2 subparagraph 1 of the Farmland Act) of the former Farmland Conservation and Utilization Act / [3] Article 2 subparagraph 1 (see current Article 2 subparagraph 1) of the former Farmland Conservation and Use Act (repealed by Article 2 of the Addenda of the Farmland Act, Act No. 4817, Dec. 22, 1994); Article 2 subparagraph 1 (see current Article 2 subparagraph 1) of the former Farmland Conservation and Use Act (repealed by Article 2 of the Addenda of the Farmland Act, Act No. 4817, Dec. 22, 1994); Article 45-2 of the former Farmland Conservation and Use Act / [4] Article 2 subparagraph 2 of the former Farmland Conservation and Use Act (see current Article 2 of the Farmland Act)

[1] Supreme Court Decision 95Nu15933 delivered on March 26, 1996 (Gong1996Sang, 1427), Supreme Court Decision 95Nu16479 delivered on April 9, 1996, Supreme Court Decision 95Nu18246 delivered on June 25, 1996 / [2/3] Supreme Court Decision 95Nu18901 delivered on June 14, 1996 (Gong1996Ha, 2228), Supreme Court Decision 96Do1536 delivered on September 24, 1996 (Gong196Ha, 3263) / [4] Supreme Court Decision 96Nu10478 delivered on November 15, 1996 (Gong197Sang, 197; 1997Nu3263 delivered on September 15, 1997)

Plaintiff (Attorney Park Jae-sik, Counsel for the plaintiff-appellant)

The Rural Development Corporation (Attorney Kim Jae-chul et al., Counsel for defendant-appellee)

Supreme Court Decision 95Nu14688 delivered on December 22, 1995

Busan High Court Decision 96Gu518 delivered on January 17, 1997

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

The defendant's attorney's grounds of appeal are examined.

1. On the second and third points

In full view of Articles 2 subparag. 7 and 4 of the former Farmland Preservation and Utilization Act (amended by Act No. 4817 of Dec. 22, 1994; hereinafter the farmland Preservation Act), and each provision of Article 45-2 of the Act on the Special Measures for the Development of Farmland, in the case of a person who intends to divert farmland upon consultation under Article 4(4) of the Farmland Preservation Act, "a person who intends to divert farmland under paragraph (1)" or "a person who intends to divert farmland with consultation, consent or approval under Article 5(1)" unlike the case of "a person who intends to divert farmland by consultation, agreement or approval under Article 5(1)", unlike the case of "a person who intends to divert farmland" (see, e.g., Supreme Court Decisions 95Nu1593, Mar. 26, 1996; 95Nu15933, Jun. 26, 199).

However, in order to impose farmland creation cost and farmland diversion charges due to farmland diversion, the land must be "farmland as provided in Article 2 subparagraph 1 of the Farmland Conservation Act". Whether it is farmland as provided in the above Article must be determined according to the actual phenomenon of the land concerned regardless of the land category in the public record, and if the land category in the public record is prior to the transfer of land, and if the land is lost as farmland and the state of loss is not deemed temporary, it shall not be deemed farmland as provided in the Farmland Conservation Act (see, e.g., Supreme Court Decisions 95Nu18901, Jun. 14, 1996; 96Do1536, Sept. 24, 1996). In accordance with the above legal principle, if it is recognized that certain land is not farmland due to actual phenomenon, it shall not be deemed that there was no legitimate permission for farmland diversion.

Examining the reasoning of the judgment below in comparison with the records and relevant statutes, the court below acknowledged the facts as stated in its reasoning based on the evidence as follows: although the land in the dispute of this case was pre-registered on the land cadastre, from around 1987 to around 1988, the building report of this case was lost as farmland before approval of the building report of this case was granted due to the construction of the factory site, and it cannot be deemed as temporary because it is impossible to re-use the land in the dispute of this case as farmland or multi-marine plant cultivation site and other facilities necessary for the preservation or use of farmland again, and it does not constitute farmland subject to imposition of farmland creation cost, etc., and there is no error of law such as misunderstanding of legal principles as to the scope of farmland

2. On the first ground for appeal

According to the facts and records duly established by the court below, after the defendant imposed and collected the farmland creation cost and farmland diversion charges of this case on the plaintiff, it can be found that the plaintiff reported and paid the farmland creation cost, etc. to a receiving agency using a confirmation document, etc. issued by the head of the non-party Busan Metropolitan Government office's office. However, such payment is merely a performance of the obligation to pay the farmland creation cost, etc. imposed by the disposition of this case, unless there are any special circumstances. Thus, the plaintiff can still seek revocation of the disposition of this case, if there is a defect in the disposition, which constitutes grounds for revocation.

As to the plaintiff's assertion that the revocation of the disposition of this case cannot be claimed because the plaintiff paid it voluntarily as above, although the court below did not explicitly determine it, the above assertion alone does not obstruct the revocation request of the disposition of this case, and the measure to determine the propriety of the revocation request is included in the purport of rejecting the plaintiff's argument. Thus, it cannot be said that there was an error of law such as misunderstanding of legal principles as to voluntary payment, omission of judgment, or misunderstanding of facts as alleged by the defendant.

3. 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 Song Jin-hun (Presiding Justice)