If the landowner and the project developer are different from each other, the person liable for payment of the development charges under Article 6 (1) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993)

The purport of imposing development charges is to properly recover the development gains, and thus the person subject to imposition should be the person to whom the development gains actually accrue, and the project operator who is a person liable to pay development charges provided for in Article 6 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) shall be deemed the person to whom the development gains actually accrue, for example, the owner of the relevant land, regardless of the name of the project operator who is stipulated in the approval, etc. of the execution plan, implementation plan, approval, etc. for the development project. Therefore, even where the owner of the relevant developed land who is the person to whom the development gains actually accrue and the project operator is different in the name of the

Articles 3(1) and 6(1) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993)

Attorney Kim Jong-young, Counsel for the Urban Development Corporation

The head of Mapo-gu Seoul Metropolitan Government

Seoul High Court Decision 92Gu10700 delivered on December 17, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The court below acknowledged that the plaintiff was delegated the right to manage the property and the right to use the land of this case, such as Sungsan-dong 341-15, in accordance with the Seoul Metropolitan Government entrusted consultation with the Seoul Metropolitan Government on May 31, 1989, which was held by the Seoul Metropolitan Government on March 23, 1989 with a local government-invested public corporation established as a whole investment in the Seoul Metropolitan Government under the Local Public Enterprises Act on March 23, 1989, and the plaintiff was a project proprietor on July 13, 1989 and implemented the construction project of permanent rental housing for urban residents on July 20, 191. The court below determined that the above land owner is the Seoul Metropolitan Government and the plaintiff was a person who implemented the construction project of permanent rental housing to collect only the rent as prescribed by the Act from the urban residents entrusted by the Seoul Metropolitan Government and the person who reverted the development gains from the housing complex development project of the above land is illegal since the plaintiff is the landowner, who is the development charges under Article 6 of the Restitution of Development Gains Act.

2. According to the provisions on the definition of development gains under Article 2 subparagraph 1 of this Act, "development gains" means (1) increase in the land value belonging to the development project operator in excess of the normal land price increase due to the implementation of the development project, (2) increase in the land value belonging to the landowner in excess of the normal land price increase due to the implementation of the public project, change of the land use plan, or other social and economic factors, and according to the provisions on the restitution of development gains under Article 3 of this Act, "the State shall collect the development gains belonging to the project operator as the development charges under the conditions as prescribed by this Act (1) and (2) as the development gains belonging to the landowner (2) shall be collected as the land excess gains under the conditions as prescribed by the Land Excess Profit Tax Act (2)." According to the provisions on the person liable for the payment of the development charges under Article 6 (1) of this Act, the project operator under each subparagraph of Article 5 (1) of this Act shall be obligated to pay the development charges under the conditions as prescribed by this Act."

In full view of the purport of each of the above provisions, the development gains under the latter part of Article 2 subparagraph 1 of this Act and Article 3 (2) of this Act refer to the development gains other than those accruing from the pertinent development projects as referred to in the former part of Article 2 subparagraph 1 of this Act and Article 3 (1) of this Act, i.e., the development gains accruing outside the pertinent land, and "land owner" refers to the land owner who gains development gains other than the relevant development project area.

In addition, as the purport of imposing development charges is to properly recover the development gains, the person subject to imposition should be the person to whom the development gains actually accrue, and the project operator who is the person liable to pay the development charges as stipulated in Article 6 of this Act shall be the person to whom the development gains actually accrue, for example, regardless of the project operator's name stated in the written approval for the execution plan for the development project.

Therefore, even if the owner of the relevant developed land, who is the actual owner of the development gains, is different from the project operator under the name, the landowner should impose the development charges in accordance with Article 3 (1) of this Act as the actual project operator.

According to the facts acknowledged by the court below, the owner of the development gains of this case is the Seoul Special Metropolitan City, which is the owner of the land of this case, and this does not change because Seoul Special Metropolitan City has delegated the right to manage the property of this case and the right to use the land of this case to the plaintiff. Therefore, the project operator, who is the person liable for the payment of development charges in this case, shall be deemed the Seoul Special Metropolitan City, which is the actual project operator, not the plaintiff under the name

If the project operator, who is the person liable for the payment of the development charges of this case, is deemed the Seoul Special Metropolitan City as seen above, the court below held the project operator as the plaintiff. However, the court below erred by misapprehending the legal principles on the meaning of the project operator who is the person liable for the payment of the development charges of this case. However, the conclusion of the court below that the disposition of the development charges of this case was illegal on the ground that there is no development gains belonging to the plaintiff and thus revoked it is justifiable, and therefore, the above misapprehension of legal principles is not affected by the conclusion of the judgment. The court below's findings and determination on the remainder of this issue are all legitimate, and there is no error of law

3. Therefore, the appeal is without merit, 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 Park Jong-ho (Presiding Justice)