209Guhap5825 Revocation of Disposition of Imposing development charges

A

Gwangju Market

April 15, 2010

2010, 5, 20

1. The Defendant’s imposition of development charges of KRW 435,92,980 against the Plaintiff on January 9, 2009 shall be revoked.

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

It is the same as the disposition (the plaintiff sought revocation of the part exceeding 265,420,086 won among the disposition imposing development charges as stated in the disposition of paragraph (1) of this Article, but the plaintiff's preliminary claim is identical to the primary claim. Thus, the plaintiff's primary claim's primary claim's primary claim's primary claim's primary claim's primary claim's quantity is merely a part of the primary claim's primary claim's quantity, and it cannot be viewed as an independent claim'

1. Details of the disposition;

A. B and C obtained from the Defendant on May 2, 2003 the permission for development for the purpose of creating warehouse sites in relation to D forest 837 meters in Gwangju-si, E forest 2,46 meters in the same E forest 2,46 meters in the same F, 150 meters in the same G G 85 meters (hereinafter “each of the instant lands”). On July 6, 2004, the Plaintiff obtained the permission for the change of the above development permission holder’s name as the Plaintiff. On August 2, 2007, the Plaintiff obtained the permission for the change of the purpose of the development act from the construction of warehouse site to the construction of a site for neighborhood living facilities, and obtained the approval for the use of each of the instant buildings newly constructed on each of the instant lands (hereinafter “the instant building”).

B. On the other hand, on August 1, 2008, the land category D of the instant land was changed to "T," and the same Dong E was changed to "T," and the same F and Dong G were changed to "road," respectively.

C. On January 9, 2009, the Defendant created a site for a neighborhood living facility on each of the instant land to the Plaintiff.

In relation to the company, the development charges of KRW 435,92,980 were imposed (hereinafter referred to as the "disposition of this case") as follows.

A person shall be appointed.

A person shall be appointed.

D. Regarding the instant disposition, the land price as of January 1, 2003 was calculated by adding the increases in normal land prices to the officially assessed individual land price as of January 1, 2003 of each of the instant land, and the land price as of the end of the imposition was calculated by adding the increases in normal land prices to the price calculated on the basis of the officially assessed land price of the relevant land, and the land price was calculated by adding the increases in normal land prices to the price calculated on the basis of the officially assessed

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including each number, hereinafter the same shall apply), Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

Considering the situation of the use of each of the instant lands in Gwangju City, I would be appropriate for the comparison standard for each of the instant lands. However, it is unlawful for the Defendant, as a mature commercial zone, to select the comparison standard for each of the instant lands, the use status of which is entirely different from that of each of the instant lands, and accordingly calculates the land price at the time of completion of imposition of each of the instant lands and make the instant disposition.

(2) The defendant's assertion

The land use condition at the time of the completion of imposition should be determined in consideration of the development purpose, and the actual use situation after the development should not be considered. If the development charges are calculated by selecting a standard site for comparison of industrial use on the ground that each land of this case developed for the purpose of building commercial site is actually used for industrial use, the land price difference between the industrial land and the commercial land shall be deemed to be in violation of the purpose of the development charges system because the land price difference between the industrial land and the commercial land belongs to the plaintiff, and thus, the disposition of this case, which calculated the development charges by selecting

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) Determination as to the legitimacy of the selection of comparative standard sites

(A) According to the provisions of Article 10(1) of the Restitution of Development Gains Act, the place at which the imposition is completed shall be the aggregate value of the increases in normal land prices calculated in accordance with the comparison table under Article 9(2) of the Public Notice of Values and Appraisal of Real Estate Act, based on the officially announced land prices of the reference land which is the most similar land at the time when the imposition is completed, and the reference land for determining the officially assessed individual land price shall be the representative land located in the neighboring area, which is the most similar reference land to the land in use area, land category, land category, land use (actual use), surrounding environment, location, and other natural and social conditions (see, e.g., Supreme Court Decisions 97Nu636, Dec. 8, 1998; 2006Du15288, Nov. 25, 2007; 2009Du1371, Nov. 12, 2009).

(B) Comprehensively taking account of the entire purport of arguments and arguments as a result of the appraiserJ’s appraisal of this case’s return to this case’s land, Gap evidence Nos. 4 and 5’s specific use area of Gwangju City is a natural green area. Each of the land of this case is K Elementary School on the Seo side, and the north side has an acute slope law in contact with forest and field, and there is a retaining wall of approximately 7-8 meters south side is created. Each of the land of this case is an isolated topography. The land of this case is most adjacent to adjacent land. The steel processing company, which is L Co., Ltd., is a small-scale factory, etc. as the front site of each of the land of this case. The purpose of this case is to compare the land of this case’s neighborhood residential facilities (class 1 and 2) and the land of this case’s residential area adjacent to the Seoul metropolitan area (type 2) and to compare the land of this case’s residential building with the land of this case’s 3rd green zone (type 13) and 4m.m.

(C) According to the above facts, it is reasonable to view the use of each land of this case as an industrial sector. Thus, it is difficult to view that the defendant selected the reference land which is the most similar to each land of this case in order to calculate the place of termination of imposition in the disposition of this case as a comparative standard. Thus, the plaintiff's assertion is reasonable, and the defendant's assertion on a different premise is without merit.

Therefore, the instant disposition is unlawful on the premise of the land price at the time of completing the imposition of each of the instant land, calculated based on the officially assessed value of the comparative standard land illegally selected.

(2) Determination as to whether partial revocation is revoked

(A) In a lawsuit seeking cancellation of the imposition of development charges, if the amount of legitimate burden to be imposed lawfully by the data submitted by the parties concerned is calculated, only the portion exceeding the reasonable amount shall be cancelled, and otherwise, if not, the entire imposition disposition shall be cancelled (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28, 1995). Article 10 of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; Act No. 5285, Jan. 13, 1997; Act No. 5285, Jan. 13, 1997) shall be excluded from the method of appraisal by an appraiser, and the price of the land at the end of imposition shall be determined and announced annually by an ombudsman with the ability and experience in calculating the price at the same time as the price at the end of imposition at the end of imposition at the same time as the price at the end of imposition at the expiration of the imposition at the same time.

(B) On July 24, 2008, the land price of the instant land as of July 24, 2008 computed by the General Appraisal and Assessment Method by the appraiser J of the instant court as the comparative standard for the standard for comparison of the Plaintiff’s proposal of the instant case, cannot be deemed as the land price at the time of completion of imposition under Article 10(1) of the Restitution of Development Gains Act, and the data submitted by the parties alone cannot be calculated with the legitimate amount of development charges to be imposed lawfully. Thus, the instant disposition should be completely revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judge of the presiding judge;

Judge Lee Jin-hun

Judges Kim Gin-dong