[1] In a case where a law that provides for matters relating to the principal authorization and permission has a provision that the principal authorization and permission is deemed to have been granted under other Acts, whether all other provisions of the law under the premise that the principal authorization and permission are granted under other Acts shall apply (negative)

[2] Whether a public housing construction project is included in a development project subject to the imposition of charges for school sites under Article 2 subparagraph 2 of the Act on Special Cases concerning the Securing, etc. of School Sites (negative)

[1] In a case where a law that provides for matters relating to the principal authorization and permission has a provision that a principal authorization and permission under other Acts shall be deemed to have been granted, the main authorization and permission shall be deemed to have been granted under other Acts, and it does not apply to all the provisions of other Acts premised on the receipt of authorization and permission under other Acts.

[2] Article 2 Subparag. 2 of the Act on Special Cases Concerning the Securing, etc. of School Sites for Projects subject to Imposition of Charges for School Sites (hereinafter “School Sites Act”) does not stipulate any former Special Act on the Construction of Bogeumjari Housing, etc. (amended by Act No. 12251, Jan. 14, 2014; hereinafter “former Bogeumjari Housing Construction Act”) or any special Act on the Construction of Public Housing, etc., which is an amended Act. Furthermore, Article 35(4) of the former Bogeumjari Housing Construction Act provides that when a project plan is approved for a Bogeumjari Housing, a building permit under the Building Act (Article 1) and an implementation plan under the Urban Development Act (Article 9) shall be deemed to have been approved for a project plan for a Bogeumjari Housing, the said building permit and implementation plan shall be deemed to have been approved. Furthermore, this provision cannot be deemed to have been applied to all the provisions of the Building Act and the Urban Development Act premised on the said permission and approval under this provision.

On the other hand, it is difficult to interpret the scope of the development project subject to the imposition of school site charges in a broad way even if the relevant provision is interpreted in light of the legislative purport and purpose, etc. of the relevant Act. This is because it is difficult to view that all housing sites and housing supply projects that cause the need to secure school site are subject to the imposition of school site charges. If all housing site and housing supply projects are, in principle, subject to the imposition of school site charges, it is reasonable to impose school site charges on business operators who supplied new housing sites and housing exceeding a certain size and caused demand for school site charges, but it is reasonable to take a legislative form that restricts the scope of development projects subject to the imposition of school site charges according to the type of the relevant Act. Nevertheless, the relevant school site law takes the legislative form that restricts the scope of development projects subject to the imposition of school site charges according to the type of the relevant Act, so

Therefore, the Bogeumjari Housing Construction Project should not be included in the development project subject to the imposition of school site charges under Article 2 subparag. 2 of the School Sites Act, and it is not allowed to interpret that the subject of the imposition of school site charges is included in the development project subject to the imposition of school site charges by excessively expanding or analogical interpretation in the direction unfavorable to the other party.

[1] Article 35(1) and (4) of the former Special Act on the Construction of Bogeumjari Housing, etc. (Amended by Act No. 12251, Jan. 14, 2014; see current Article 35(1) and (4) of the Special Act on Public Housing (see current Article 35(4) of the Special Act on Public Housing); Article 27 of the Administrative Litigation Act / [2] Article 2 subparag. 2 and 3 of the Special Act on the Construction of Bogeumjari Housing, etc. (Amended by Act No. 1251, Jan. 14, 2014; see current Article 35(1) and (4)1 of the Special Act on Public Housing (see current Article 35(4)1 of the Special Act on Public Housing); Article 35(4)9 of the Special Act on the Construction of Bogeumjari Housing, etc. (see current Article 35(4) and Article 35(4)9 of the Special Act on Public Housing)

[1] Supreme Court Decision 2004Da19715 decided Jul. 22, 2004 (Gong2004Ha, 1520)

Korea Land and Housing Corporation (Law Firm, Kim & Lee LLC, Attorneys Song-chul et al., Counsel for the plaintiff-appellant)

Kimcheon-market

Daegu High Court Decision 2014Nu4376 decided January 16, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The purpose of the Act on Special Cases concerning the Securing, Development, and Supply of School Sites (hereinafter referred to as the “School Sites Act”) is to facilitate the extension of existing schools in close vicinity where the securing of school sites is easy and procuring school sites is impossible by prescribing special cases concerning the creation, development, and supply of school sites for public elementary schools, middle schools, and high schools (Article 1). Article 2 Subparag. 2 of the Act provides that “The term “development project” means a project to create and develop land with at least 100 households among projects implemented pursuant to the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act, and the Industrial Sites and Development Act, which provides for “charges for school sites” in subparagraph 3 of the same Article shall mean expenses to be collected from development projects to procure school sites or to extend development projects to those who perform development projects in close vicinity where procuring school sites is impossible.”

In addition, Article 35 of the former Special Act on the Construction of Bogeumjari Housing, Etc. (amended by Act No. 12251, Jan. 14, 2014; hereinafter "former Bogeumjari Housing Construction Act") provides for approval for a housing construction project plan as follows:

Any project implementer shall prepare a project plan for the Bogeumjari Housing (including a plan for the installation of subsidiary facilities and welfare facilities) and obtain approval from the Minister of Land, Transport and Maritime Affairs (paragraph (1)), and shall be deemed to have obtained permission for construction under Article 11 of the Building Act (Article 11)" when a project plan is approved, and "designation of an urban development zone under Article 3 of the Urban Development Act" and "authorization for an implementation plan under Article 17 of the same Act (Article 17 (Article 4)).

2. The lower court acknowledged the following facts. The Plaintiff was designated as the implementer of the instant Bogeumjari Construction Project pursuant to Article 35(1) of the former Bogeumjari Housing Construction Act and obtained approval of the project plan. On June 12, 2013, the Defendant imposed school site charges on the Plaintiff pursuant to Articles 5(1) and 5-2 of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015) regarding the supply of collective housing among the instant Bogeumjari Construction Project (hereinafter “instant disposition”).

Based on these facts, the lower court determined that the instant disposition was lawful on the premise that the instant project for the construction of Bogeumjari Housing was included in the development projects stipulated in Article 2 Subparag. 2 of the School Sites Act and was subject to the imposition of school site charges. The reasons are as follows

When a project plan for the Bogeumjari Housing has been approved, a building permit under the Building Act, designation of an urban development zone under the Urban Development Act, authorization of an implementation plan for the Bogeumjari Housing Construction Project shall be deemed to have been granted, and the requirements prescribed under the Building Act and the Urban Development Act shall be met in order to implement the Bogeumjari Housing Construction Project. As such, the instant Bogeumjari Housing Construction Project is not different from the project implemented in accordance with the Building Act and the Urban Development Act. In the case of the implementation of the Bogeumjari Housing Construction Project, it is necessary to procure school sites to meet the demand for school attendance formed by the implementation

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. The purpose of statutory interpretation is to seek concrete feasibility to the extent that does not infringe legal stability. To this end, interpreting laws faithfully with the ordinary meaning of the language and text used in the law as far as possible is a principle. Furthermore, a reasonable interpretation should be made by additionally applying a systematic and logical interpretation method that takes into account the legislative intent and purpose of the law, the history of the enactment and amendment thereof, harmony with the entire legal order, and relations with other Acts and subordinate statutes (see, e.g., Supreme Court Decisions 2006Da81035, Apr. 23, 2009; 2011Da83431, Jan. 17, 2013). sed administrative disposition is a concept corresponding to beneficial administrative disposition, which restricts the rights and interests of the other party or imposes obligations on the other party. Therefore, administrative laws that serve as the basis thereof should be more strictly interpreted and applied in accordance with the principle of clarity required under the Constitution, which should not be excessively construed or analogical interpretation or analogical interpretation to the other party to the administrative disposition.

In addition, in a case where the Act stipulating the matters concerning the principal authorization and permission has a provision that the principal authorization and permission is deemed to have been granted under other Acts, it is limited to deeming that the principal authorization and permission is granted under other Acts, and this does not apply to all the provisions of other Acts premised on the authorization and permission granted under other Acts (see Supreme Court Decision 2004Da19715 delivered on July 22, 2004).

B. Article 2 Subparag. 2 of the Act on the Construction of Public Housing, Etc. does not stipulate the Act on the Construction of Public Housing, Etc., which is a basis law for a project subject to imposition of school site charges. Moreover, Article 35(4) of the former Act on the Construction of Bogeumjari Housing provides that a construction permit under the Building Act (as referred to in subparagraph 1) and an implementation plan under the Urban Development Act (as referred to in subparagraph 9) shall be deemed to have been granted when a project plan for the Bogeumjari Housing is approved under Article 35(4) of the former Act on the Construction of Bogeumjari Housing, and that a construction permit and an implementation plan under the Urban Development Act shall be deemed to have been granted when a project plan for the Bogeumjari Housing is approved. In addition, this provision does not apply to all the provisions of the Building Act and the Urban Development Act

Meanwhile, even if a provision on the basis of the imposition of school site charges is interpreted in consideration of the legislative purport and purpose thereof, it is difficult to interpret the scope of the development project subject to the imposition as wide as the original judgment. This is because it is difficult to deem that all housing sites and housing supply projects that cause the necessity of securing school site are subject to the imposition of school site charges. If all housing sites and housing supply projects are, in principle, subject to the imposition of school site charges, it is reasonable to impose school site charges on a business operator who supplies new housing sites and housing exceeding a certain scale and causes demand for school site charges, and to take legislative forms that limit the scope of development projects subject to the imposition of school site charges according to the type of the relevant law. Nevertheless, the school site law takes the legislative form that restricts the scope of development projects subject to the imposition of school site charges according to the relevant law, and therefore only the relevant projects under the relevant relevant applicable law are subject to

Therefore, the Bogeumjari Housing Construction Project should not be included in the development project subject to the imposition of school site charges under Article 2 subparag. 2 of the School Sites Act, and it is not allowed to interpret that the subject of the imposition of school site charges is included in the development project subject to the imposition of school site charges by excessively expanding or analogical interpretation in the direction unfavorable to the other party.

C. Nevertheless, the lower court determined that the instant disposition imposing school site charges on the instant Bogeumjari Construction Project was lawful on different premise. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of development projects subject to the imposition of school site charges, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)