[1] Criteria for determining "justifiable reasons" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act

[2] The case holding that the "justifiable cause" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act does not exist for the reason that the Korea Electric Power Corporation did not use its neighboring land for its own purpose after purchasing its neighboring land within the grace period and only plans to use it for its own purpose after the grace period has passed

[1] As a standard for determining whether a corporation is a non-business land of a corporation with heavy acquisition tax, justifiable cause shall be determined on an individual basis based on a specific case, considering the following factors: (a) whether the corporation is a profit-making corporation; (b) the preparation period required for the use for its unique purpose in light of the purpose of acquiring land; (c) the preparation period required for the use for its unique purpose; (d) the statutory and de facto disability and degree of disability that cannot be used for its unique purpose; (e) whether the corporation has made efforts to use the land for its unique purpose; and (e) whether there was a cause attributable to an administrative agency.

[2] The case holding that the "justifiable cause" under Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 1481 of Dec. 31, 1994) does not exist in the case where the Korea Electric Power Corporation established a plan to use the land for its own purpose after purchasing the neighboring land for its own purpose within the grace period without any intention to use it for its own purpose in resolving the civil petition of residents in constructing a thermal power plant

[1] Article 112 (1) and (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994); Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) / [2] Article 112 (1) and (2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994); Article 84-4 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 1481 of Dec. 31, 1994)

[1] Supreme Court Decision 95Nu5257 delivered on December 8, 1995 (Gong1996Sang, 431) Supreme Court Decision 97Nu5121 delivered on November 27, 1998 (Gong1999Sang, 73) Supreme Court Decision 97Nu3132 delivered on February 24, 199 (Gong199Sang, 587), Supreme Court Decision 98Du6012 delivered on November 26, 199 (Gong200Sang, 82)

Korea Electric Power Corporation (Attorney Song-tae, Counsel for defendant-appellee)

Cheongnam-do Head of Chungcheongnam-do

Daejeon High Court Decision 97Gu2922 delivered on November 20, 1998

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the findings of fact and the summary of the judgment of the court below are as follows.

A. Summary of the facts found

In order to secure the ratio of electricity, the Plaintiff had the Plaintiff construct a chemical power plant. The Plaintiff started the purchase of the site with the plan for construction of a chemical power plant on March 2, 1990 on the site of this case. However, on the ground that the residents of this case object to the construction of a power plant and did not comply with the plan for construction of a new chemical power plant, the Plaintiff demanded the Plaintiff to purchase sufficient compensation and relocation, and construction of a collective burial complex on the site of this case. On August 2, 1991, 196, the Plaintiff should purchase the land of this case 57,393 square meters on the site of this case, which is part of the building site of this case. On November 6, 1991, the Plaintiff purchased the land of this case to the Minister of Construction and Transportation to the extent of 97,000 square meters, and to the extent of 9,000 square meters on the site of a new chemical power plant. On the other hand, the Plaintiff had to use the land as part of the site of this case 9.

B. The judgment of the court below

In order for the Plaintiff to smoothly implement the electric power plant construction project in the neighboring site of the instant land, purchase of the instant land was inevitable. The Plaintiff’s purchase right under the Act on Special Cases Concerning Electric Source Development is limited to the owner of the instant land. The construction of electric power plants is limited to the use of electric power plants other than that of the acquisition purpose, according to the long-term power supply and demand plan of the government and the plan for installation and supply of electric installations, which can be revised by the government. The construction of electric power plants shall obtain permission from the Minister of Trade, Industry and Energy. The construction of electric power plants shall undergo not only an environmental impact assessment under the Environmental Impact Assessment Act after consultation with the Minister of Environment, but also an environmental impact assessment under the Act on Environmental Impact Assessment. In fact, the construction of electric power plants shall be carried out annually in consideration of the supply and demand of electric power, and if necessary, the government shall provide guidance and supervision on the contents of the Plaintiff’s management. Nevertheless, the Plaintiff shall establish a plan to use the remaining land for non-business purposes and its incidental facilities after the acquisition of the instant land.

2. The judgment of this Court

As a standard for determining whether a corporation is a non-business land of a corporation with heavy acquisition tax, justifiable cause includes not only the external reason for which the corporation cannot use for its unique duties, but also an internal reason beyond the grace period even though it has made normal efforts and promoted to use for its unique duties. In full view of the legislative intent of imposing acquisition tax, whether the relevant corporation is a profit-making corporation, the period of preparation required for the use for its unique purpose in light of the purpose of acquiring land, the term of the preparation period required for its unique purpose, the statutory and de facto disability and degree of disability that cannot be used for its unique purpose, whether the relevant corporation has made efforts to use for its unique duties, whether the relevant administrative agency's cause or not, etc. shall be determined individually based on specific cases (see, e.g., Supreme Court Decisions 94Nu6901, Jun. 30, 1995; 95Nu5257, Dec. 8, 1995).

However, according to the reasoning of the judgment below, it cannot be deemed that the plaintiff inevitably purchased the remaining land of this case by including the right to purchase under the Act on Special Cases concerning Electric Source Development in the execution plan for electric power resource development business without any intention to use the remaining land for its own purpose, such as the construction of electric power plant within the grace period for solving civil petitions by residents, and thus, it cannot be deemed that the plaintiff inevitably purchased the remaining land of this case, and the construction of electric power plant is determined by the government's power supply plan, etc. and should undergo the process of environmental impact assessment after consultation with the Minister of Trade, Industry and Energy. However, it is merely an internal reason for the plaintiff, who is the project operator, and the remaining land of this case, which is about about 70% of the total land of this case, or about 10% of the total land of this case, has been set up only a plan to start the construction of electric power plant for more than 10 years, considering the circumstances cited by the court below, it is difficult to view that the plaintiff has any justifiable reason for the remaining land of this case within the grace period.

Nevertheless, the judgment of the court below, based on its reasoning, is erroneous in the misunderstanding of legal principles as to justifiable grounds under Article 84-4 (1) and (3) 4 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) and Article 84-4 (1) of the same Enforcement Decree (amended by Presidential Decree No. 14753 of Aug. 21, 1995), and it is obvious that this affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

3. 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 Lee In-hee (Presiding Justice)