[1] In a case where it was possible to jointly develop the surrounding land at the time of the designation of the apartment district, but it did not participate in the joint development with the surrounding land, whether construction as stipulated in Article 20 (1) 3 of the Act on Ownership of Housing Site is prohibited or impossible to construct it (negative)

[2] The purport of Article 21-2 of the Enforcement Decree of the Act on the Ownership of Housing Site concerning the extension of the period of obligation for use and development

[1] As the remaining land in an apartment zone, it is possible to develop the surrounding land at the time of designation and public announcement of the apartment zone, and in fact the owners of the surrounding land developed the land as apartment site by means of joint development after designation and public announcement of the apartment zone. However, in the case where the owner of the land in question did not participate in joint development with surrounding land at the intention to maintain the site or at the intention to participate in joint development on a more favorable condition, so the remaining land remains up with development remaining, the balance between the owners of surrounding land who participated in the joint development who did not want to have the provisions of the Urban Planning Act and the Seoul Special Metropolitan City Basic Plan with the owners of the land in question can not be seen as a "site where construction of the house is prohibited or construction is de facto impossible" in accordance with the provisions of the relevant Acts and subordinate statutes.

[2] The purpose of Article 21-2 of the Enforcement Decree of the Act on the Extension of Period of Use and Development is to substantially guarantee the grace period (the period of obligation for use and development) excluded from the subject of excess ownership charges by extending the period of obligation for use and development in cases where it becomes impossible to use and develop the pertinent land due to joint development with surrounding land during the period of obligation for use and development. Therefore, if it is possible to use and develop the pertinent land through joint development during the period of obligation for use and development, there is no room to apply the provisions of Article 21-2 of the Enforcement Decree of the Act on the Extension of Period of Obligation for Use and Development.

[1] Article 20(1)3 of the Act on the Ownership of Housing Sites; Article 3 subparag. 3 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 14447 of Dec. 23, 1994) / [2] Article 21-2 of the Enforcement Decree of the Act on the Ownership of Housing Sites

[1] Supreme Court Decision 95Nu1682 delivered on September 29, 1995 (Gong1995Ha, 3629) Supreme Court Decision 96Nu770 delivered on April 8, 1997 (Gong1997Sang, 1455)

[Judgment of the court below]

Head of the Busan Metropolitan Government Annual Government

Busan High Court Decision 95Gu1903 delivered on November 14, 1996

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, on August 21, 1976, the land of this case was designated as an apartment zone under the Urban Planning Act on October 27, 198, and the urban planning decision was cancelled on December 30, 1991, based on the premise that the urban planning decision was cancelled on the land for the construction of schools and road facilities in the apartment zone. Thus, the land of this case is excluded from the subject of the imposition of excess ownership charges (hereinafter referred to as "charges") until the alteration of the above urban planning decision under subparagraph 3 of Article 3 of the Enforcement Decree of the Housing Site Ownership Act (amended by Presidential Decree No. 14363, Aug. 194; hereinafter referred to as the "Enforcement Decree"). Thus, the period of use and development of the land of this case was completed from December 30, 1991.

However, the evidence No. 8, which the court below considered as fact-finding data, is that the land of this case is included in the public site (road and school) in the Seoul Metropolitan Government Master Plan for Apartment District Development (hereinafter referred to as the "Seoul Master Plan"), and it is "land, the basic plan of which is modified and announced publicly on December 30, 191 by Seoul Special Metropolitan City Notice No. 1991-388 of December 30, 191," and there is no data on the date and time of the determination and alteration of the urban planning of the land of this case and the reply to the fact-finding on the evidence No. 7-1, 2, and No. 8-1, 8-2 as cited by the court below and the fact-finding on the head of Seocho-gu Seoul Metropolitan Government Office.

Rather, according to the records, the Seoul Special Metropolitan City Basic Plan on the land of this case was partially amended on July 5, 1983, and the land of this case was designated as a school site before that amendment, but after that amendment, the land of this case was designated as a high density housing site (record 142.144 pages). Nevertheless, the court below's finding that the urban planning decision on the land of this case was modified on December 30, 1991 cannot be said to have violated the rules of evidence or failed to exhaust all necessary deliberations. The argument pointing this out has merit.

2. According to the reasoning of the judgment below, the court below determined that since the area of the remaining land in the apartment zone was merely 1,336.2m2m2 and its size was merely 1,336m2m2, and it was impossible to construct at least 300 households on the land in this case, it was impossible to construct apartment houses on the land in this case from the enforcement date of the Act on Ownership of Housing Site (hereinafter the Act) to December 23, 1993, even if the Seoul Metropolitan Government jointly develops the land adjacent to the land in this case during the period from the enforcement date of the Act on Ownership of Housing to December 23, 1993, it was impossible to construct houses on the land in this case. Accordingly, since the period of the duty to use and develop the land in this case is extended from December 23, 1995 pursuant to the provisions of Article 21-2 subparagraph 3 of the Enforcement Decree, the period of imposition of charges in this case is excluded from the imposition period of the charges in this case.

Since most of the surrounding lands were developed within an apartment zone before they were designated and publicly announced as an apartment zone, if it was impossible to expect joint development with the surrounding lands from the beginning, they should be regarded as falling under the site where construction of houses is prohibited or it is virtually impossible to construct houses in accordance with the relevant laws and regulations (see Supreme Court Decision 96Nu7670 delivered on April 8, 1997). However, even though the owners of neighboring lands were able to develop the land as an apartment site by the method of joint development after being designated and publicly announced as an apartment zone after being designated and publicly announced as the apartment zone, if the owners of the relevant lands were not to participate in joint development with the surrounding lands, and if they became remaining after development due to no participation in the joint development from the intention of the owner of the relevant land or on more conditions, they can not be seen as being able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able.

However, according to the records, apartment houses located on the same side of the land of this case cannot be seen to have been constructed before the date of the public notice of the Seoul Special Metropolitan City master plan partially amended on July 5, 1983. Thus, the land of this case can be constructed by jointly developing neighboring land even after the designation and public notice of apartment zone. The owners of neighboring land actually constructed apartment houses on the ground of joint development but did not comply with the plan and did not comply with the plan, and therefore, the land of this case does not correspond to the "site where the construction of housing is prohibited by the relevant laws and regulations" during the period from the enforcement date of the Act until December 23, 1993.

In addition, the provision of Article 21-2 of the Enforcement Decree of the Act on the Extension of the Time Limit for Use and Development is intended to substantially guarantee the grace period (the time limit for use and development obligation) excluded from the subject of the charge by extending the time limit for use and development obligation to the extent that it is impossible to use and develop the land of this case due to joint development with the surrounding land during the time limit for use and development obligation. Therefore, Article 21-2 of the Enforcement Decree of the Act on the Extension of the Time Limit for Use and Development obligation does not apply.

Nevertheless, the court below erred by misapprehending the legal principles as to the application of the interpretation of Article 20 (1) 3 of the Act, since the date of enforcement of the Act to the date of public notice on the amendment of the basic plan of Seoul, and thus, it is reasonable to conclude that the period of use and development obligation is extended from December 23, 1995 to December 23, 195.

3. 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 Lee Im-soo (Presiding Justice)