The meaning of "site development projects and housing construction projects" under the Housing Construction Promotion Act included in the housing site development project, which is subject to the imposition of development charges under subparagraph 1 of Article 4 (1) of the Enforcement Decree of the former Restitution of Development Gains Act, and the meaning of "housing site development projects and housing construction projects", and whether the completion inspection is conducted after the completion of the relevant housing site development project and only housing construction of the scale falling under the object of approval of housing construction projects under the Housing Construction Promotion Act

The purpose of Article 5 (1) of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 197) is to determine the type of a project subject to development charges and to determine the scope and scale of a housing site development project (including housing complex development projects) under subparagraph 1. Article 33 (1) of the Housing Construction Promotion Act and Article 32 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15786 of Apr. 30, 1998) is to exclude the scope of a housing site from the total area of a housing construction project subject to development charges under Article 9 of the Housing Construction Promotion Act if the housing site development charges are to be imposed at least 20 housing units or 20 housing units or to build housing units at least 10,000 square meters within the scope of a building site subject to development charges under Article 19 of the same Act.

Article 5(1)1 and (2) and Article 9(3)2 of the former Restitution of Development Gains Act (amended by Act No. 5285 of Jan. 13, 1997); Article 4(1) [Attachment 1] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 15398 of Jun. 25, 1997); Article 8(1)2 of the same Act; Article 33(1) of the Housing Construction Promotion Act; Article 32 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 15786 of Apr. 30, 1998); Article 18-3 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 242 of Jun. 17, 200)

Plaintiff

Seoul Special Metropolitan City Nowon-gu, Counsel for the defendant-appellant

Seoul High Court Decision 99Nu2576 delivered on July 28, 1999

The judgment below is reversed. The case is remanded to Seoul High Court.

1. Summary of the judgment below

According to the reasoning of the judgment of the court of first instance as cited by the court below, the plaintiff was entitled to the imposition of development charges of 1,408 square meters prior to August 18, 194, 181 square meters prior to (2), 127 square meters prior to (3 square meters omitted) and 94 square meters prior to the execution of the development charges of 1,389 square meters prior to the enforcement of the Housing Construction Promotion Act. The plaintiff was entitled to the imposition of development charges of 1,97 square meters prior to the imposition of development charges of 1,40 square meters prior to the enforcement of the Act on 194, 2000, 200 square meters prior to the imposition of development charges of 1,50 square meters prior to the enforcement of the Act on 194, 300 square meters, and 1,000 square meters prior to the imposition of development charges of 1,000 square meters prior to the enforcement of the Act on 196 square meters.

2. The judgment of this Court

Article 5 (1) of the Act provides that the types of housing site development projects (including housing complex development projects) shall be the same as those subject to the imposition of development charges. Article 5 (2) of the Act provides that matters necessary for the scope, size, etc. shall not be prescribed by the Presidential Decree. Meanwhile, Article 33 (1) of the Housing Construction Promotion Act and Article 32 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 15786 of Apr. 30, 1998) and Article 18-3 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 242 of the Ministry of Construction and Transportation of June 17, 2000) shall include not only the construction of detached houses or 20 households or 10,000 square meters of housing site or more, but also the construction of housing site subject to the imposition of development charges if the housing site development projects are constructed in so-called multi-purpose buildings other than residential areas or quasi-residential areas, but also the scope of the housing site subject to the approval is less than 150 percent.

According to the reasoning of the judgment below and the records, with regard to the construction of a housing site for the first residential complex building, the plaintiff implemented a housing site development project with permission for changing the form and quality of land under Article 4 of the Urban Planning Act in order to construct the housing site, and completed a completion inspection on December 5, 1995. After adding a total of 410 square meters adjacent ( Address 9 omitted) on January 16, 1996 to a large of 12 stories above the second underground floor to construct apartment and neighborhood living facilities on the above ground, the defendant determined that the construction of a site for the land of this case is exempt from development charges under Article 5 (1) 11 of the Act and Article 4 (1) [Attachment 1] of the Decree, and Article 4 (1) of the Decree [Attachment 1] of the Housing Construction Promotion Act to impose development charges on the land of this case, which is the project subject of the change of the form and quality of land under subparagraph 11 of the same Table, and added development charges to the land of this case to the plaintiff.

Nevertheless, in determining whether the instant project is subject to the imposition of development charges, the lower court included ( Address 9 omitted) land in addition to ( Address 1 omitted) large 410 square meters in the business area. In so doing, there is an error of misapprehending the legal doctrine on the business subject to the imposition of development charges under Article 5(1)1 of the Act and Article 4(1) [Attachment Table 1] 1 of the Decree.

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, without further proceeding to decide on other grounds of appeal, 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 Park Jae-sik (Presiding Justice)