The purpose of the development charges system and the method of calculating the development gains which form the premise for calculating the development charges / Whether the development project operator is entitled to apply for the necessary disposition for cooking the charges for school sites paid after the imposition of the development charges (affirmative)

The development charges system is a system to realize economic justice by partially recovering development gains in excess of normal increases in land prices due to the increase of land prices in the land to be developed as a result of the implementation of the development project by the project operator, and to promote the efficient utilization of land by preventing speculation on land. Therefore, when calculating the development gains, which form the premise for calculating the development charges to be imposed on the development project operator, it shall be calculated to make the development gains that the person subject to imposition is practically able to become close to the actual reality.

In light of the aforementioned legal principles, all development costs should be deducted when imposing development charges. The net construction costs, investigation costs, design costs, and general management costs, which are directly invested for development projects, are disbursed before the authorization date of completion of development projects, which are ordinarily imposed at the point of completion of the imposition of development charges. Thus, there is no special problem to deduct development costs even within three months from the authorization date of completion. However, school sites charges, which provide for payment procedures after the completion of a sale contract, may be delayed for a long period or the sale in lots may not be made within three months from the authorization date of completion. Nevertheless, the relevant Acts and subordinate statutes provide that development charges shall be imposed within three months from the authorization date of completion of the development project, so that development charges may be deducted as development costs only for the actual paid school sites after the sale in lots can be deducted. If the sale in lots has been concluded two months after the authorization date of completion of the development project, it is reasonable to impose development charges at least 14 months after the authorization date of completion of the development charges, and there is no possibility to deduct development charges from construction charges at least 24 months after the aforementioned.

Articles 8, 9(3), 11(1), and 14(1) of the former Restitution of Development Gains Act (Amended by Act No. 12245, Jan. 14, 2014); Article 12(1)5 (see current Article 12(1)6) of the former Enforcement Decree of the Restitution of Development Gains Act (Amended by Presidential Decree No. 25452, Jul. 14, 2014); Articles 5(1) and 5-2(1) of the Act on Special Cases Concerning the Securing, etc. of School Sites; Article 5-2(2) of the Enforcement Decree of the Act on Special Cases Concerning the Securing, etc. of School Sites

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Original Construction Co., Ltd. (Law Firm LLC, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Hong-do, Chungcheongnam-do (Attorney Song-young, Counsel for the defendant-appellant)

Daejeon High Court Decision 2012Nu1110 decided January 10, 2013

The part of the charges for school site paid after the imposition of development charges is reversed, and this part of the case is remanded to the Daejeon High Court. The remaining grounds of appeal are dismissed.

The grounds of appeal are examined.

1. If an administrative agency’s refusal against a citizen’s application constitutes an administrative disposition which is the subject of an appeal litigation, the filing of the application must be an exercise of public authority or an equivalent administrative action, and the refusal should cause any change in the applicant’s legal relationship, and the citizen must have the right to file an application in accordance with the law or sound reasoning demanding that the applicant act be conducted. In addition, the existence of the right to file an appeal, which serves as the premise for recognizing the disposition of the refusal, must be determined abstractly by considering who the applicant is in a specific case, and by examining whether the relevant law recognizes the right to file an appeal to the general public (see Supreme Court Decision 95Nu12460, Jun. 11, 19

2. The lower court acknowledged that: (a) on December 18, 2006, the Plaintiff obtained authorization from the Defendant on May 29, 2009 after undergoing the instant construction project after obtaining approval for the housing construction project plan from the Defendant on December 18, 2006; (b) the Plaintiff received a notice of payment of school site charges from the Defendant and paid KRW 179,263,200 to the Plaintiff on August 31, 2009; (c) the Defendant issued a disposition of imposition of development charges of KRW 598,835,300 (hereinafter “instant disposition”); (d) the Plaintiff received a notice of payment of the school site charges from the Defendant and paid KRW 185,292,00 to June 10, 201; and (e) the Plaintiff could not request the Plaintiff to refund the amount of development charges to the previous Defendant on September 23, 2009 (hereinafter “the instant disposition of imposition”).

Furthermore, based on the circumstances stated in its reasoning, the lower court determined that the instant lawsuit seeking the revocation of the instant refusal is unlawful on the ground that, even though the Plaintiff was able to claim the deduction of the amount of development costs as the development costs, the Plaintiff did not assert that the amount of the school site charges would be deducted as the development costs due to the Plaintiff’s actual loss or mistake, and thus, the Plaintiff cannot be recognized as having the right to file an application under the relevant laws and regulations or cooking seeking a refund of the amount equivalent to the charges of the school site charges out of the development charges.

3. Examining the aforementioned legal principles and records, the above determination by the court below on the charges for school site paid before the imposition of development charges is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the disposition of rejection of development charges

However, the judgment of the court below on the charges for school site paid after the imposition of development charges is difficult to accept for the following reasons.

A. According to Articles 8, 9(3), and 14(1) of the former Restitution of Development Gains Act (amended by Act No. 12245, Jan. 14, 2014; hereinafter “Development Gains Refund Act”), the standards for imposition of development charges shall be the value of land subject to imposition at the starting point, the increases in the imposition period, and the development costs are the amount calculated by subtracting from the value of land subject to imposition at the end point of imposition at the end of imposition at the end of imposition at the end of imposition at the end of imposition; the end of imposition of development charges, in principle, shall be the date the completion of development project is authorized; and the Minister of Land, Infrastructure, and Transport shall determine and impose the development charges within three months from the end of imposition; according to Article 11(1) of the Development Gains Refund Act; Article 12(1)5 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 25452, Jul. 14, 2014; hereinafter “Enforcement Decree of the Development Gains Exchange Act”) and multi-unit Housing Act, etc.

B. The development charges system is designed to realize economic justice by partially recovering development gains exceeding increases in normal land prices due to the increase in land prices of the land to be developed as a result of the implementation of the development project by the project operator, and to promote the efficient utilization of land by preventing speculation in the land. Thus, when calculating the development gains, which form the premise for calculating the development charges to be imposed on the development project operator, it shall be calculated to be close to the actual situation where the person subject to imposition is actually aware of the development gains (see Supreme Court Decision 93Nu24209 delivered on June 14, 1994).

C. In light of the foregoing legal doctrine, all development costs should be deducted when imposing development charges. The net construction costs, research costs, design costs, and general management costs, which are directly invested in the development project, are disbursed before the authorization date of completion of the development project, which is the time of completion of the general imposition of development charges. Thus, there is no special problem to deduct development costs even within three months from the authorization date of completion of the development project. However, school sites charges, which provide for payment procedures after the completion of the sale contract, may be delayed for a long time or may not be sold within three months from the authorization date of completion, which are likely to not be paid within three months from the date of the completion of the sale contract. Nevertheless, the relevant statutes provide that development charges shall be imposed within three months from the date of the authorization date of completion of the development project, so that development charges may be deducted as development costs only for the school sites actually paid after the completion date of the sale contract, and where two months have elapsed from the authorization date of the completion of the sale contract under the development project, the amount of the charges paid after the completion of the development charges cannot be deducted.

D. Nevertheless, the lower court dismissed the entire lawsuit of this case on the grounds that not only the charges for school sites paid prior to the instant disposition, but also the charges for school sites paid thereafter cannot be recognized as having the right to file an application under the relevant laws or sound reasoning seeking the refund of development charges. In so doing, the lower court erred by misapprehending the legal doctrine on the disposition of refusal of the refund of development charges, which affected the conclusion of the judgment.

4. Therefore, of the judgment below, the part of the charges for school site paid after the instant disposition is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)