2016 Doz. 433 Revocation of Disposition of Imposition of Adjustment Payments

1. A;

2. B

The Head of C

OO, O00

November 8, 2016

November 22, 2016

1. On January 12, 2016, the Defendant’s disposition of imposition of KRW 19,738,000 against each of the Plaintiffs shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

1. Details of the disposition;

A. Before the cadastral resurvey, ○○○○-dong, ○○-dong, 337 square meters was designated as a cadastral resurvey district on December 5, 2013, and the boundary of the land was redetermined through a cadastral survey, and the area on the cadastral record increased to 418.9 square meters (hereinafter “instant land”). After the completion of the cadastral resurvey, the Defendant publicly announced that the cadastral resurvey was completed on June 8, 2015, and on June 12, 2015, the registration was made to indicate that the area was indicated as a square meter on the instant land as a square meter on December 9, 2018.

B. On June 23, 2015, the Defendant imposed KRW 39,476,00 upon D, who was the owner of the instant land at the time of the instant auction, an amount of KRW 39,476,00 according to the cadastral resurvey. D urged D to pay the amount again on December 8, 2015, but D did not pay the amount of liquidation. Meanwhile, D had not paid the amount of liquidation. On the other hand, in the process of the auction on April 23, 2014, the instant land was conducted with the decision to commence voluntary auction on the instant land (○○ District Court ○○○○○○ branch 2014 branch ○○○○○○○○○○○○○ branch ○○○○○○○○ branch ○○○○○○○) based on the increased area according to the results of the cadastral resurvey. The instant land was awarded by the Plaintiffs each of the shares and paid the sales price on December 17, 2015.

D. On January 12, 2016, the Defendant issued the instant disposition imposing KRW 19,738,000 on the Plaintiffs on the ground that the Plaintiffs were successors to the instant land based on Article 21(7) of the Special Act on Cadastral Resurvey, and thus, the obligation to pay the adjustment payment ought to also be succeeded to.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, 4, 5, Eul evidence No. 3, and the purport of the whole pleadings

A. The plaintiff's assertion

1) Article 21(7) of the Special Act on Cadastral Resurvey does not stipulate that the previous landowner succeeds to the right if there is a adjustment payment to be received, or that the obligation to pay the adjustment payment is not a provision to succeed to the obligation to pay the adjustment payment if there is no legal basis. In addition, the instant disposition is inappropriate to impose the adjustment payment on the Plaintiffs, since the appraisal of the increased land area was conducted at the auction procedure of the instant land and the registration for the correction of indication was completed on the registry and the Plaintiffs was awarded a successful bid with the increased amount of land than the previous land. As such, the benefit accrued from the increase in the area of the instant land is not the previous landowner or the creditor who received the payment

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Administrative laws and regulations, which serve as the basis for sediment administrative acts, shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to such administrative acts. Even if the teleological interpretation that takes into account the legislative intent and purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the text and text (see, e.g., Supreme Court Decision 2011Du3388, Dec. 12, 2013).

On the other hand, the instant disposition is a so-called indive administrative act that imposes an obligation on the plaintiffs, who are the counterpart to the disposition, and it is necessary to strictly interpret and apply administrative laws and regulations which serve as the basis thereof. Article 21(1) of the Special Act on Cadastral Resurvey clearly distinguishs the receipt and payment of the adjusted amount. On the other hand, it is clear that Article 21(7) of the same Act contains the content on the succession of the right to receive the adjusted amount, and it does not include the content on the succession of

In addition, interpreting that the former landowner’s obligation to pay adjustment payments was succeeded to the purchaser of the land based on the increased size at the auction procedure after the completion of the cadastral resurvey as in this case, it cannot be deemed that it excessively limits his/her successor’s property rights. In other words, allowing the former landowner to receive or pay adjustment payments under the Special Act on Cadastral Resurvey, if the area on the pertinent land increases as a result of the cadastral resurvey, the competent cadastral authority would collect adjustment payments from the landowner, and grant adjustment payments to the landowner if the area on the pertinent land is reduced earlier than the initial one. As such, it is intended to adjust the interests and losses between the landowners arising from the increase or decrease of the land area. Therefore, if the legal relationship is changed after the designation of the project district, the authority to receive adjustment payments and the person to whom the responsibility to pay the adjustment payments belongs should be determined depending on whom the profits and losses arising from the increase or decrease of land area belong to anyone. However, since the Plaintiffs purchased the instant land in the auction procedure based on the assessed value based on the increased size after the completion of the cadastral resurvey in this case, the Plaintiffs are not the previous landowner.

As alleged by the Defendant, interpreting Article 21(7) of the Special Act on Cadastral Resurvey as a provision concerning succession to the obligation to pay an adjustment payment is an excessively expanded or analogical interpretation of the provision to the disadvantage of the other party to an administrative act beyond the ordinary meaning of the language and text, and thus, it cannot be permitted. Therefore, Article 21(7) of the Special Act on Cadastral Resurvey cannot be the basis for the disposition of this case. Furthermore, if there is no legal ground for the succession of the obligation to pay adjustment payment, the auction court stated that the obligation to pay adjustment payment can be succeeded to the buyer in the absence of the sale specification, etc., even if the auction court stated that the former landowner’s obligation

For the above reasons, the disposition of this case is unlawful, and the plaintiffs' assertion pointing this out is with merit.

3. Conclusion

If so, the plaintiffs' claims are justified.

The presiding judge shall become invalid;

Judges Kim Jae-sik

Judges Jeon Young-ju