Whether Article 2 (2) of the Addenda to the Enforcement Decree of the Restitution of Development Gains Act is an invalid provision without grounds for delegation to the parent law (negative)

The provisions of Article 8 (4) of the Addenda of the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5108, Dec. 29, 195; Article 8 (1) of the Addenda of the Public Notice of Values and Appraisal of Lands, etc. Act; Article 10 (3) of the former Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Presidential Decree No. 1965, Apr. 1, 1998); Article 10 (9) of the same Act provides that the land price as of the starting date of the development project shall be calculated uniformly pursuant to the Presidential Decree No. 1966 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Presidential Decree No. 1981, Dec. 29, 1995); Article 19 (3) of the former Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act; Article 9 (4) of the same Act) of the same Act provides that the land price as of the starting date shall be calculated.

Articles 8 and 10(3) of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995; Article 2 of the Addenda of the former Restitution of Development Gains Act (amended by Presidential Decree No. 4563 of Jun. 11, 1993; Act No. 4563 of Dec. 30, 1989); Article 2(2) of the Addenda of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993; Presidential Decree No. 12936 of Mar. 2, 1990)

Samsung Life Insurance Co., Ltd. (Attorney Yoon Young-young, Counsel for defendant-appellant)

Head of Daegu Central City (Attorney Lee Dong-soo, Counsel for defendant-appellant)

Daegu High Court Decision 97Gu5030 delivered on February 20, 1998

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

Article 2 (1) of the Addenda of the former Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993 in the Addenda of Act No. 4175, Dec. 30, 1989; hereinafter referred to as "the Addenda of the Act") provides that "any project subject to the imposition of development charges under Article 5 as of the time this Act enters into force shall also be subject to the application of this Act." Thus, there is a ground for imposing development charges on a project commenced before the first enforcement of the Restitution of Development Gains Act, and paragraph (2) of the same Article provides that "the development charges on a project under paragraph (1) shall be calculated pro rata the amount corresponding to the project implementation period after the enforcement date of this Act from the amount calculated under Article 8 concerning the total period of the project implementation including the project implementation period before the enforcement date of this Act; the land price shall be calculated by applying the officially announced individual land price under Article 10 (1) of the Act as of the date of commencement of the development gains Act until the first implementation date."

However, in order to calculate development charges for a development project commenced prior to the first enforcement of the Act pursuant to Article 2 (2) of the Addenda of the Act, the land price as of the first commencement date of the development project, i.e., the time of obtaining authorization for the implementation of the project, etc. In such a case, Article 2 (2) of the Addenda of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956, Aug. 12, 1993; hereinafter referred to as "the Addenda of this case") which is the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 12936, Aug. 12, 1993; hereinafter referred to as "the Addenda of this case") provides that in the case of the main sentence of Article 10 (3) of the Act, the land price at the time of obtaining authorization for the development project to calculate charges pursuant to paragraph (1) shall be calculated by comparing the land price at the officially announced land price as of January 1, 1990.

Although the Act does not explicitly stipulate a provision to delegate to the Presidential Decree the method of calculating the land price as to the time when the development project commenced prior to the first implementation of the Act, Article 10(3) of the Act provides that the land price as to the time when the development project commenced shall be calculated uniformly by the publicly announced individual land price. As such, as in this case, where the development project started before the Act and the Land Price Publication Act enters into force, and it is impossible to calculate the land price as to the time when the development project started without delay due to the absence of the officially announced individual land price at the time, the publicly announced individual land price as of the effective date of the Act shall be calculated, and it conforms to the purport of Article 10(3) of the Act, which aims to uniformly calculate the land price as to the time when the development project starts by deducting the normal land price from the time when the development project starts. In such a case, it is evident that the standard land price should be determined by the situation prior to the commencement of the development project in light of the purpose and purport of the development profit refund system. Accordingly, Article 2(2) of the Addenda of this case is determined.

Therefore, Article 2(2) of the Addenda to the Enforcement Decree of the instant case provides the basis for Article 2 and Article 10(3) of the Addenda to the instant Act to the extent that the provision is planned, to specify and clarify the calculation method of the land price as of the starting point within the scope that the provision is planned, and it is not a provision to change the calculation method of the land price as of the starting point, which is not planned without delegation of the mother law, to the disadvantage of the people. Therefore

Nevertheless, the court below, based on different opinions, determined that Article 2 (2) of the Addenda to the Enforcement Decree of this case changed the contents of Article 10 (3) of the Act to a disadvantage to the public, and is valid only with delegation of the law. Since there is no ground for delegation of the parent law, including Article 10 (3) of the Act, Article 2 (2) of the Addenda to the Enforcement Decree of this case is null and void as it violates the parent law, and the defendant's disposition of this case was unlawful. Thus, the court below did not err by misapprehending the legal principles on the validity of Article 2 (2) of Addenda to the Enforcement Decree of this case, thereby affecting the conclusion of the judgment.

The grounds of appeal pointing this out are with merit.

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 Son Ji-yol (Presiding Justice)