Whether it constitutes a private road which is exempt from the aggregate land tax in case where a construction line or a vacant lot which is created by constructing a building at a distance to be kept from the neighboring site according to the Building Act, etc. provides for the passage of many and unspecified persons (affirmative)

Article 234-12 subparagraph 6 of the Local Tax Act and Article 194-7 subparagraph 1 of the former Enforcement Decree of the Local Tax Act (amended by the Presidential Decree No. 15211 of Dec. 31, 1996) "private roads established for the purpose of free passage of the general public" are not limited to the private roads opened with permission under Article 4 of the Private Road Act, and even if the owner of the private roads has been established for the purpose of free passage of the general public from the beginning, it is not limited to the private roads opened for the purpose of free passage of the general public, and it is also a private road established for the purpose of the first use of the private roads for the specific purpose, in light of all the circumstances such as the utilization status of the private roads concerned, connection status of the private roads to the public roads, and the situation of the neighboring sites, if widely used for the passage of many and unspecified people, such private roads include all such private roads. Thus, even if a building has been constructed at the time of non-taxation, it constitutes a public road subject to the aggregate land tax without restriction.

Article 234-12 subparagraph 6 of the Local Tax Act, Article 194-7 subparagraph 1 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of December 31, 1996), Article 4 of the Private Road Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Choi Gyeong-soo et al., Counsel for plaintiff-appellant)

Hotel Pream Co., Ltd. (Law Firm Rois, Attorneys Yang Ho-sung et al., Counsel for the defendant-appellant)

The head of Jung-gu Seoul Metropolitan Government (Attorney Jung-hee, Counsel for defendant)

Seoul High Court Decision 97Gu44883 delivered on July 9, 1999

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

We examine the grounds of appeal.

1. As to misapprehension of legal principles and violation of precedents

Article 234-12 subparag. 6 of the Local Tax Act and Article 194-7 subparag. 1 of the former Enforcement Decree of the Local Tax Act (amended by the Presidential Decree No. 15211 of Dec. 31, 1996) "private roads established for the purpose of free passage of the general public" are not limited to the private roads opened with permission under Article 4 of the Private Road Act, and private roads established for the purpose of free passage of the general public from the beginning, and even if the owner of the private roads has been established for the purpose of providing them for the original specific purpose, the private roads do not put any restrictions on the passage of the general public, and in fact, if the private roads are used for passage of many and unspecified persons, such private roads include all such private roads, and even if they are used for construction without restriction on the passage of the construction line or the aggregate land tax, they constitute an open area subject to non-taxation under the Building Act (see, e.g., Supreme Court Decision 92Nu9456, Apr. 23, 1993).

In the same purport, the court below is just in holding that the part of the road of this case, which was provided for the passage of many and unspecified persons without any restriction, is subject to non-taxation of the aggregate land tax, because the plaintiff constructed a hotel and a department store and set a distance from the building line or the boundary of a neighboring site in accordance with the relevant Acts and subordinate statutes or conditions of permission, and there is no violation of the law of misunderstanding the legal principles as to the subject of non-taxation of the aggregate land tax and violation of the precedents (excluding the notice within the site under Article 50 of the Building Act, Article 194-7 subparagraph 1 of the Enforcement Decree of the former Local Tax Act), as alleged in the grounds of appeal.

2. As to the omission of judgment

Although the defendant asserted that the road portion in this case is not subject to exemption from the aggregate land tax because it constitutes a publicly known area that should be left under the Building Act at the time of constructing a building, the court below erred by failing to make a decision thereon, but it is obvious that the court below rejected the above assertion, so this part of the ground of appeal is without merit.

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 Lee Han-gu (Presiding Justice)