A. Whether the development charges system is unconstitutional

B. Whether the application of a new statute to a fact that continued facts or that occurred after the enforcement of a new statute conflicts with the principle of prohibition of retroactive legislation

C. Whether Article 2 of the Addenda to the Restitution of Development Gains Act is unconstitutional

(d) Whether Article 5 of the former Restitution of Development Gains Act and Article 4 of the Enforcement Decree of the former Restitution of Development Gains Act are unconstitutional;

(e) Where co-owners jointly implement the development project, the criteria for determining the scale of the project;

(f) Where entries are omitted in a notice for payment of development charges, whether the defect in the disposition is merely a ground for revocation;

A. The development charges are imposed uniformly on the development gains at the rate of 50%, but the development charges shall be imposed only on the development projects exceeding a certain size, and further, the development charges shall be deducted from the necessary expenses under the Income Tax Act in calculating gains on transfer under the Income Tax Act, thereby achieving harmony between the guarantee of property rights of the person liable for the payment of the development charges and the achievement of the objectives pursued by the Restitution of Development Gains Act. Therefore, the development charges system cannot be deemed to violate Article 23 or

B. The principle of retroactive legislation prohibition refers to the principle that an obligation to pay all kinds of taxes, charges, etc. is not imposed retroactively by a new statute after the establishment of the obligation to pay income, profits, property, act or transaction that has already been established. Thus, the application of a new statute to the facts that continued or occurred after the enforcement of a new statute does not conflict with the above principle

C. The former part of Article 2 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) provides that "the project for which the implementation of the project has not been completed, among the project subject to the imposition of the development project under Article 5 at the time this Act enters into force, shall be subject to this Act" shall be imposed on the development project commenced before the enforcement of the Act, and the latter part of the provision provides that "in this case, the enforcement date of this Act shall be deemed the starting date of the relevant development project" shall be deemed to be the starting date of the implementation of the Act, thereby achieving harmony between the guarantee of property rights of the person liable for payment of the development charges and the achievement of the purpose pursued by the Restitution of Development Gains Act.

D. Article 5(1) of the former Restitution of Development Gains Act explicitly lists the projects subject to the imposition of development charges under Article 5(1), and delegates only the size and scope of the projects subject to the imposition of development charges to the Presidential Decree, specifying the specific scope. Accordingly, Article 4 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13718, Aug. 25, 1992) provides for the size and scope of the projects subject to the imposition of development charges. Thus, the projects subject to the imposition of development charges shall be deemed delegated to the Presidential Decree by specifying the following specific scope prescribed by the Act. Thus, Article 5 of the same Act and Article 4

E. Where co-owners jointly implement a development project for co-owned land, the scale of the project shall be determined on the basis of the total area, and it shall not be determined on the basis of the area corresponding to each co-owner’s share

F. Article 16 of the Enforcement Decree of the Restitution of Development Gains Act stipulating the amount to be paid, the basis for calculation, the deadline for payment, and the place for payment in a notice for payment of development charges is a mandatory provision. Thus, if the same is omitted in a notice for payment, the disposition of imposition is unlawful, or such defect is merely a ground for revocation and is not a reason for revocation.

(a)Article 4(a) of the Enforcement Decree of the Restitution of Development Gains Act. Articles 3, 5, and 13 of the former Restitution of Development Gains Act, Articles 23, and 37(b) of the Constitution. Article 13(2)(c) of the former Restitution of Development Gains Act, Article 2(d) of the Addenda of the Restitution of Development Gains Act. Article 5(f) of the former Enforcement Decree of the Restitution of Development Gains Act. Article 16 of the Enforcement Decree of the Restitution of Development Gains Act,

B. Supreme Court Decision 89Nu3557 delivered on February 27, 1990; 90Nu3300 delivered on August 28, 1990; 90Nu2406 delivered on October 16, 1990; 93Nu2037 delivered on December 24, 1993; 93Nu19542 delivered on March 25, 1994

[Defendant-Appellee] Plaintiff 1 and 2 others

Magyeong-gun

Seoul High Court Decision 92Gu17725 delivered on May 13, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

The Restitution of Development Gains Act enacted by Act No. 4175 of Dec. 30, 1989 (hereinafter “the Restitution of Development Gains Act”) stipulates that the purpose of the Act is to prevent speculation in land, promote the efficient utilization of land, and contribute to the sound development of the national economy by recovering development gains generated from land, and appropriately distributing them, (Article 1) and to impose development charges on the development gains accrued in excess of increases in normal land prices by implementing the development project to achieve its purpose.

However, Article 13 of the Act and Article 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13718, Aug. 25, 1992; hereinafter the same) provide that the development charges shall be imposed only on a certain scale of development projects, and Article 45(1) of the Income Tax Act and Article 94(2) of the Enforcement Decree of the same Act and Article 47(1)1 of the Enforcement Decree of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1848, Mar. 6, 191) provide that the development charges shall be deducted from necessary expenses in calculating gains on transfer, thereby achieving harmony between the guarantee of property rights of the person liable for the payment of the development charges and the achievement of the purpose pursued by the law, so the Act cannot be said to violate Article 23 or 37 of the Constitution.

In addition, as pointed out in the family theory, even if a landowner disposes of the land for the payment of the development charges, this does not necessarily result from the imposition of the development charges, so it cannot be said that the development charges system forces the disposal of the land concerned.

There is no reason or reason to discuss.

On the second ground for appeal

The principle of retroactive legislation prohibition refers to the principle that no retroactive tax shall be imposed on income, profit, property, act or transaction that has already been established with the obligation to pay various taxes, charges, etc., by a new law after its establishment. Thus, the application of a new law to the continued fact or facts that occurred after the enforcement of a new law does not conflict with the above principle (see, e.g., Supreme Court Decisions 89Nu3557, Feb. 27, 1990; 90Nu3300, Aug. 28, 1990; 90Nu2406, Oct. 16, 1990).

Therefore, even though the former part of Article 2 of the Addenda of this Act provides that "any development charges shall be imposed on the development projects commenced before the enforcement of this Act, among projects subject to the imposition of development charges under Article 5, shall be subject to the application of this Act", and the latter part of this Act provides that "in this case, the enforcement date of this Act shall be deemed to be the starting date of the relevant development projects," and stipulates that only the development gains accrued after the enforcement date of this Act shall be imposed on the development projects shall be in harmony with the guarantee of property rights of the person liable for payment of the development charges and the achievement of the objectives pursued by the Act

There is no reason for this issue.

On the third ground for appeal

1. The law lists specifically the projects subject to development charges under Article 5(1), and delegates only the size and scope of the projects subject to development charges to the Presidential Decree and the specific scope of the projects under Article 5(2). Accordingly, the Enforcement Decree provides for the size and scope of the projects subject to development charges under Article 4, so the projects subject to development charges shall be deemed delegated to the Presidential Decree by setting the following specific scope

Therefore, we cannot accept the argument that Article 5 of the Act and Article 4 of the Enforcement Decree are in violation of Articles 59 and 75 of the Constitution.

2. Where co-owners jointly implement a development project for co-owned land, the scale of the project shall be based on the total area, and it shall not be determined based on the area corresponding to each co-owner's share (see Supreme Court Decision 93Nu2037 delivered on December 24, 1993).

The judgment of the court below to this purport is correct, and there is no violation of the interpretation of Article 4 of the Enforcement Decree as argued in the Lawsuit.

There is no reason to discuss this issue.

On the fourth ground

Article 16 of the Enforcement Decree stipulating the amount to be paid in the notice for payment of development charges and the basis for the calculation thereof, the deadline for payment, and the place for payment is a mandatory provision. Thus, if the same is omitted in the notice for payment, the disposition for imposition is unlawful (see Supreme Court Decision 93Nu19542 delivered on March 25, 1994). However, such defect in the disposition for imposition is merely a reason for revocation and is not a reason for revocation. Thus, the judgment of the court below to the same purport is justified.

There is no reason for this issue.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)