If, even if 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 such value is deemed, whether the land price as of the starting point of imposition shall

In the proviso of Article 10 (3) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), the part of the starting point of imposition, which is to calculate the land price based on the actual purchase price, based on the decision of unconstitutionality by the Constitutional Court, shall lose its effect from the date of decision. Thus, 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 value is recognized, the land price as of the starting point of imposition shall be calculated on the basis of the price, and the land price as of the officially assessed individual

Article 10(3) of the Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993); Article 9(5) of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956, Aug. 12, 1993)

Constitutional Court Order 95HunBa35, 97HunBa81, 98HunBa5, and 10 (HunGong28, 113) Decided June 25, 1998

Enmark Co., Ltd. (Attorney Goo-o, Counsel for defendant-appellant)

Racing Market (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Daegu High Court Decision 97Gu2451 delivered on March 26, 1998

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the defendant imposed development charges on the development project of this case (housing site development project and housing construction project under the Housing Construction Promotion Act) of this case which started October 16, 1994 and completed April 30, 1996, and it applied the ratification table to select 2942 land as the reference land price and calculated the 10-year land price as the reference land price at the decision of the court below, which is the land subject to imposition (merger with two lots of land after completion of the decision of the court below), and then imposed 18,851,930 won as of October 12, 1996, which was the 97-year officially assessed land price of the combined two lots of land, and it did not constitute an unlawful determination as to the increase or decrease of the reference land price as at the time of the initial imposition of the reference land price as at the time of termination of the lawsuit of this case.

However, according to the records, the 97-year officially assessed land price, which was the basis for the calculation of the land price at the time of completion of the imposition, was also the price determined as the reference land price for the racing 2942-dong 2942, and the plaintiff sought the cancellation of the imposition of the increase as well as the initial price after amendment of the purport of the claim, and it was alleged that there was an error of law by selecting the land as the reference land price for the racing 2942-dong 2942, which was calculated excessively high at the time of completion of the imposition. The whole purport of the claim is that the imposition of the increase is illegal since it was erroneous in selecting the reference land price at the time of the imposition of the increase as the 97-year officially assessed land price, which was the basis for the calculation of the land price at the time of the imposition of the increase, and thus, it was also illegal (see Supreme Court Decision 96Nu9096, Apr. 11, 197).

However, according to the records, when comparing the land of 2942 and the land of 2 lots after the combination of the land of 2942 and the land of this case selected as the reference land at the time of the decision of the officially assessed individual land price in 97, it can be seen that the specific use area and the land category are identical as a general residential area and the land of this case, and their use status are identical and adjacent to each other as the apartment site, and there is no data to deem that there is no other similar situation of the reference land than the above reference land in the vicinity, and thus, there is no error in the selection

2. In the proviso of Article 10 (3) of the Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; hereinafter referred to as the "Act"), the part that the land price as of the actual purchase price should be calculated only in cases prescribed by the Presidential Decree was invalidated from the date of the decision of unconstitutionality of the Constitutional Court (Supreme Court Order 95HunBa35, 97HunBa81, 98HunBa5, 10, Jun. 25, 1998). Thus, 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 Restitution of Development Gains Act (amended by Presidential Decree No. 13956, Aug. 12, 1993; hereinafter referred to as the "Act"), the land price as of the starting date of the imposition shall be calculated, and it shall not be calculated as of the officially assessed individual land price.

According to the records, after completing the development project on April 30, 1996, the plaintiff received a notice of scheduled development charges from the defendant and submitted a written request for review before notification along with documentary evidence on September 19, 1996, and confirmed that the purchase price of land No. 1 or 9 as indicated in the judgment of the court below, which was purchased from the private person, was confirmed, and that the land price was calculated and changed based on the purchase price. Thus, the court below should examine whether the above purchase price reported by the method of a request for review prior to notification was recognized, and then determine that the land price as of the starting point should be calculated based on the price (the reported purchase price is recognized according to the records), but even if the value does not correspond to any of the purchase price as stipulated in Article 9 (5) of the Enforcement Decree of the Act, the defendant's measures that calculated the land price as of the starting point based on the officially assessed individual land

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Song Jin-hun (Presiding Justice)