[1] Whether the value of the purchase price reported by the person liable for payment does not constitute the purchase price under each subparagraph of Article 9(5) of the Enforcement Decree of the Restitution of Development Gains Act, if the value is acknowledged, the land price as of the starting point shall be calculated (affirmative)

[2] Whether the disposal price under Article 10 (2) of the Restitution of Development Gains Act shall apply only to the cases where the disposal price is lower than the price under Article 10 (1) of the same Act (affirmative)

[3] In calculating development charges, whether the land at the starting point should be calculated as the disposal price if the land price at the starting point is calculated based on the actual purchase price (negative)

[1] In the proviso of Article 10 (3) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), the part which calculated the land price as of the starting point of the land subject to the development charges based on the actual purchase price shall lose its effect as a decision of unconstitutionality by the Constitutional Court. Thus, even if the purchase price reported by the person liable for payment does not correspond to the price under each subparagraph of Article 9 (5) of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), if the value is deemed as the actual purchase price, the land price as of the starting point shall be calculated based on

[2] Article 10 (2) of the Restitution of Development Gains Act that the disposal price may be the land at the time of termination if the State or the local government obtains the approval of the disposal price in selling the land subject to the development charges in lots, etc. (amended by Act No. 4563 of Jun. 11, 1993) is an exception to Article 10 (1) of the same Act that provides that the disposal price may be the land at the time of termination, and the disposal agency shall be construed as only where the disposal price under paragraph (2) is lower than the price under paragraph (1) in light of its regulatory form or legislative intent.

[3] Unless otherwise provided, unless otherwise, the land price as of the starting point for the imposition of development charges was calculated on the basis of the actual purchase price, and the starting point shall not be deemed as the disposal price.

[1] Article 10(3) of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995); Article 9(5) of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 14447 of Dec. 23, 1994) / [2] Article 10(1) and (2) of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995) / [3] Article 10(1), (2), and (3) of the former Restitution of Development Gains Act (amended by Act No. 5108 of Dec. 29, 1995)

[1] Constitutional Court Decision 95Hun-Ba35, 97Hun-Ba81, 98Hun-Ba5, and 10 (Hun-Ba28, 113) decided September 4, 1998 (Gong1998Ha, 2428), Supreme Court Decision 98Du7565 decided Oct. 2, 1998 (Gong1998Ha, 2428) / [2] Supreme Court Decision 94Nu206 decided Feb. 28, 1995 (Gong195Sang, 1480)

[Defendant-Appellee] Defendant 1 and 2 others (Attorney Kim Sung-sung, Counsel for defendant-appellee

Head of the Gu of Daegu Metropolitan City

Daegu High Court Decision 96Gu10455 delivered on February 19, 1998

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. In the proviso of Article 10(3) of the Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993; hereinafter referred to as the “Act”), the portion of the land at the starting point where the land subject to the development charges is to be calculated on the basis of the actual purchase price only if the Presidential Decree prescribes, has lost its effect by the Constitutional Court’s decision of unconstitutionality (the Constitutional Court’s decision of 95HunBa35, 97HunBa81, 98HunBa5, 10) on June 25, 1998. Thus, even if the purchase price reported by the person liable for payment does not fall under the price stipulated in each subparagraph of Article 9(5) of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956, Aug. 12, 1993; hereinafter referred to as the “Enforcement Decree”), the land price at the starting point shall be calculated on the basis of the actual purchase price

If facts are as acknowledged by the court below, the actual purchase price of each land listed in the table 1 and 2 of the judgment of the court below among the land subject to the development charges of this case is the value reported by the plaintiff, the land listed in the list 1 is the total amount of KRW 7,976,036,50, and KRW 6,992,910,000 in total. Thus, regardless of whether the above purchase price falls under the price stipulated in Article 9 (5) 5 of the Enforcement Decree, the land price as of the starting point for the above land shall be calculated on the basis of the above value.

Therefore, since the imposition of the development charges of this case, which calculated the land price as of the starting point based on the officially assessed individual land price, is unlawful, the judgment of the court below in the same conclusion is justifiable, and the ground of appeal criticizeing the judgment of the court below on the ground that the above purchase price reported by the plaintiff does not fall under the price under Article 9 (5) 5 of the Enforcement Decree

2. The provision of Article 10 (2) of the Act that the disposal price may be calculated at the time of termination on the basis of the officially assessed individual land price if the State or a local government obtains the approval of the State or the local government on the disposal price in disposing of the land subject to the development charges, such as the sale in lots, is an exception to the provision of paragraph (1) of the same Article that the disposal price may be calculated at the time of termination on the basis of the publicly assessed individual land price. In light of the form of the provision or legislative intent, etc., the disposal agency can only apply the provision of paragraph (2) only if the disposal price under paragraph (2) is lower than the price under paragraph (1) (see, e.g., Supreme Court Decision 94Nu206, Feb. 28, 1995). Unless otherwise provided, it cannot be said that the land price as of the starting point of the imposition

In the same purport, the court below is just in revoking the disposition of this case, on the ground that the land price as of the starting point and the starting point are calculated on the basis of the publicly assessed individual land price, and that the land price as of the starting point is calculated on the basis of the actual purchase price, and that the development gains are no longer available if the development gains are calculated on the basis of the starting point calculated on the basis of the land price as of the starting point calculated on the basis of the publicly assessed individual land price and the land price as of the starting point calculated on the basis of the actual purchase price; and

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)