Plaintiff (Law Firm Tae, Attorneys Jung Jjin-jin et al., Counsel for the plaintiff-appellant)

The head of the Dong-gu Gwangju Metropolitan City Waterworks Project Headquarters (Attorney Park Jong-soo, Counsel for the defendant-appellant)

October 18, 2007

1. On August 29, 2006, the part of the Defendant’s disposition imposing water supply construction costs against the Plaintiff exceeding KRW 159,997,00 of the construction cost and the facility contributions exceeding KRW 110,376,00 of the facility contributions shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a construction company that constructs a new apartment (hereinafter “instant apartment”) with 658 households (hereinafter referred to as the “instant apartment”) that is implemented by the Dong-gu Seoul Metropolitan City Housing Redevelopment and Improvement Project Association (hereinafter referred to as the “instant association,” the said association, and the said project “instant redevelopment project”) in accordance with the Seoul Metropolitan City’s basic plan for urban and residential environment improvement and the designation of redevelopment and improvement zone (hereinafter referred to as the “instant apartment”) with an authorization for redevelopment project implementation in accordance with the designation of redevelopment and improvement zone.

B. On August 28, 2006, the Plaintiff applied for the construction of water supply facilities to the Defendant to install water supply facilities on the apartment of the instant apartment.

C. Upon the above application, the Defendant conducted an on-site investigation for the execution of water supply construction works and calculated the construction cost of water supply facilities as follows.

- 159,997,00 won = [219,00 won for a household with an exclusive area of 85 square meters or less) x 369 households] + [274,000 won for a household with an exclusive area of 85 square meters or less) x 289 households];

· 165,816,00 won = gold 252,000 won (per household facility contributions) ¡¿ 658 households;

· Materials inspection fees 3,948,000

· 3,948,000 won of completion inspection fees

· Total 33,709,000

D. On August 29, 2006, the Defendant approved the above application by the Plaintiff, and imposed the water supply construction cost calculated as above on the Plaintiff (hereinafter “instant disposition”), and paid it on September 5, 2006 by the Plaintiff.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1, 3, and 10, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Claim as to the water supply cost portion of the instant disposition

The public announcement of the change of the fixed amount of the cost of new water supply construction (multi-unit housing) in Gwangju Metropolitan City on December 16, 2000 based on the instant disposition (hereinafter “instant notice”) is a uniform provision that takes into account only the administrative convenience without reflecting the actual cost of the water supply construction. The Defendant’s determination of the amount of KRW 159,97,00 that is much much than the actual cost of the water supply construction of this case based on the instant notice is unlawful in violation of the general principle of cost sharing and the principle of proportionality.

(2) Claim as to the portion of facility contributions in the instant disposition

① The instant facility contributions are the amount of the expenses for the maintenance, management, and operation of the production facilities, such as the water purification plant, drainage station, and water pipe, which the beneficiary pays at a fixed amount. The Defendant imposed the facility contributions of KRW 165,816,000 on the total amount of 25,816,000 for each of the existing households (220 households) and the total households of the newly located households (438 households) within the instant zone, which are not divided into the existing households (438 households) and the newly located households (438 households). As the redevelopment project for the instant zone was implemented in accordance with the Gwangju Metropolitan City Urban and Residential Environment Improvement Master Plan, it is unlawful to impose the facility contributions for the water supply construction again on the existing households located within the instant zone from the relocation and closure to the same subject of imposition.

② Although the Defendant expressed his public opinion that he would reduce or exempt the facility contributions to the existing residential households, it is unlawful to impose the facility contributions of this case contrary to the principle of trust and the principle of self-regulation.

③ In light of the fact that the facility contributions to the existing residential households were deducted in the reconstruction site in Seoul, the same issue as the instant case, and in the reconstruction site in Seongbuk-dong, Seoul, the instant disposition was unlawful against the principle of equality as it constitutes arbitrary discrimination without reasonable grounds.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Expenses actually incurred in the instant water supply work are KRW 12,400,000 for construction contract amount, KRW 4,980,00 for government water supply materials, KRW 200,00 for waste disposal expenses, and KRW 17,580,00 for total amount of KRW 17,580 for waste disposal expenses.

(2) Before the instant redevelopment project was implemented, 220 households were residing in the instant zone.

(3) Article 12(6) of the Gwangju Metropolitan City Water Supply Ordinance, which was enacted by Ordinance No. 3473 of March 1, 2007 and is in force from the same day, provides that “If a person applies for a new water supply project after being abolished due to reconstruction, etc., he/she may deduct the amount of the facility contributions for the existing water supply project.”

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, the purport of the whole pleadings

D. Determination

(1) Determination of water supply construction cost

Article 10 of the Gwangju Metropolitan City Ordinance on the Water Supply and Waterworks (hereinafter referred to as the "Ordinance on the Water Supply and Waterworks") provides that the construction cost for the water supply shall be the material cost, construction cost, road restoration cost, design fee, completion inspection fee, and material inspection fee, and the expenses incurred in addition to the above construction cost shall be added to the actual expenses. The cost for the water supply construction cost shall be the fixed amount, and the amount shall be separately publicly notified by the Mayor, and according to the delegation from the above Ordinance, the Gwangju Metropolitan City Mayor sets out that the construction cost for the case where the area for exclusive use by each household is more than 40 square meters but not more than 85 square meters, if the area for exclusive use by each household is a multi-family housing, shall be KRW 219,00,000 per household, and the construction cost for each household shall be KRW 274,000 per household.

The fixed construction cost system is adopted to solve various problems caused by calculating and imposing the actual cost of the construction project due to the water supply construction cost and to enhance the efficiency of administration. However, it is unreasonable to impose the construction cost different from the actual cost of the construction project, and thus, it is in violation of the general principle of cost-bearing because it is not possible to impose the construction cost of the amount different from the actual cost of the construction project.

Therefore, the Gwangju Metropolitan City Mayor, who has been granted the authority to determine the fixed construction cost by the above Ordinance, has the obligation to determine it in accordance with the purport of the fixed construction cost system as above. As seen above, the above Ordinance provides that the expenses for materials, construction cost, road restoration cost, design fee, completion inspection fee, and material inspection fee shall be added to actual expenses. The actual expenses for water supply works executed by the defendant are merely KRW 17,580,00 even when the construction contract amount, government-funded materials cost, waste disposal cost, etc. are added to the total construction cost, while the imposition of this case reaches about nine times the actual expenses as KRW 159,97,00,00, in light of the purport of delegation and proportionality of the Ordinance, the notice of this case by the Gwangju Metropolitan City Mayor shall be deemed unlawful, and therefore, it shall be revoked since the part of the disposition of this case based on the above illegal public notice is also supplied to the construction cost of this case.

(2) Determination on facility contributions

(A) Article 5(1) of the Framework Act on the Management of Charges provides that "the charges shall be imposed to ensure fairness and transparency within the minimum extent necessary to achieve the purpose of establishment, and no double charges shall be imposed on the same subject of imposition unless there are any special reasons." Although the instant association is promoting the redevelopment project of the instant zone as a project implementer, the existing residents have established the instant association as ex post facto procedures following the basic plan for urban and residential environment improvement and the designation of the redevelopment zone of Gwangju Metropolitan City. Accordingly, the existing residents have moved from the instant zone. Accordingly, the existing water supply facility charges are closed; the instant facility charges are related to expenses incurred in the maintenance, management and operation of production facilities, such as water purification plants, drainage stations, and water pipes, and are expected to take into account the fact that the redevelopment project was implemented with respect to the existing households, and the current Ordinance on Water Supply and Waterworks has already been implemented and thus, the existing residents are unlawful before the relocation of the existing water supply facility."

(b)Calculation of due facility contributions;

Therefore, among the disposition of imposition of facility contributions of this case, 5,440,000 won for the existing residential households in the area of this case (=252,00 won x 220 households) shall be revoked as unlawful, and accordingly, the legitimate facility contributions for the apartment of this case (=25,376,000 won x 438 households) shall be 110,376,000 won.

3. Conclusion

Thus, the plaintiff's claim for the revocation of the part of the disposition of this case which exceeds KRW 110,376,00 among the facility contributions of KRW 165,816,00 among the facility contributions of KRW 159,97,00 among the disposition of this case is well-grounded, and it is so decided as per Disposition by the assent of all.

Judges Kim Jin-hun (Presiding Justice)