A person who intends to divert farmland upon consultation under Article 4 (2) of the Act on the Preservation and Utilization of Farmland; the time when the obligation to pay farmland creation cost is established to be borne by the person who intends to divert farmland after consultation.

In the case of "a person who intends to convert farmland pursuant to Article 4 (4) of the Farmland Conservation and Utilization Act (repealed by Act No. 4817 of Dec. 22, 1994)" and "a person who intends to divert farmland by consultation, agreement, or approval pursuant to Article 5 (1)" are expected to have close to the time when the farmland is actually converted. Therefore, it is reasonable to view that the said permission, consultation, consent, or approval is the time when the farmland creation cost is established, which can be specified objectively as the person liable for payment or the person subject to imposition, and is suitable for securing fulfillment of the obligation to pay the farmland creation cost, since the above circumstances differ in the case of "a person who intends to divert farmland by consultation pursuant to Article 4 (4) of the same Act" and "a person who intends to divert farmland by consultation pursuant to Article 4 (2) of the same Act, not the time for consultation under paragraph (2) of the same Article, but the time when the farmland creation cost is actually to be paid.

Article 4 of the Farmland Preservation and Utilization Act (repealed by Act No. 4817 of Dec. 22, 1994); Article 45-2 of the Act on the Special Measures for Development of Farmland (amended by Act No. 4818 of Dec. 22, 1994)

Supreme Court Decision 95Nu16479 delivered on April 9, 1996 (the same purport)

Bosung Co., Ltd. (Attorney Han-soo, Counsel for defendant-appellee)

The Rural Development Corporation (Attorney Kim Jae-chul et al., Counsel for defendant-appellee)

Seoul High Court Decision 94Gu33745 delivered on September 19, 1995

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The Farmland Preservation and Utilization Act (hereinafter referred to as the "farmland Preservation Act") enacted by Act No. 4817 of Dec. 22, 1994 provides that "the person who intends to obtain permission to divert farmland under the provisions of Article 4 (4) of the Farmland Preservation Act before the amendment by Act No. 4229 of Apr. 7, 1990 and the person who intends to divert farmland with the consultation, consent or approval under the provisions of Article 5 (1) shall impose "the farmland conservation cost" on the person who intends to obtain permission to divert farmland under the provisions of Article 4 (4) of the Farmland Preservation Act (hereinafter referred to as the "amended Farmland Preservation Act") and the person who intends to use farmland with consultation and consultation under the provisions of Article 4 (2) of the same Act and who intends to obtain permission or consultation under the provisions of Article 4 (1) of the same Act as the person who actually intends to obtain permission to divert farmland under the provisions of the farmland conservation Act or the provisions of Article 4 (1) of the same Act."

However, in the case of "a person who intends to divert farmland after consultation pursuant to the provisions of Paragraph 4 of Article 4 of the amended Farmland Conservation Act", the above circumstances differ, so the time when the person intends to actually engage in the diversion of farmland is not the time of consultation pursuant to the provisions of Paragraph 2 of the above Article, but the time when the farmland creation cost payment obligation is established.

This is because, unlike the cases of permission to divert farmland under Paragraph (1) or consultation, consent or approval under Paragraph (1) of Article 5, in the case of consultation under Paragraph (2) of the above Article, since not the person who actually intends to divert farmland but the operator of the decision of the urban planning area, etc. is the subject of consultation, not the person who actually intends to divert farmland, but the subject of consultation, such as the decision of the urban planning area, etc., shall hold a consultation with the Minister of Agriculture, Forestry and Fisheries en bloc at the whole stage of the decision of the urban planning area, etc. without any difference as to whether the farmland owner, etc. wishes to divert farmland in the urban planning area

If a farmland owner's obligation to pay the farmland creation cost is deemed to be established at the time of the above consultation, the payment of the farmland creation cost is forced without any occurrence of the extinguishment of farmland due to farmland diversion, which goes against the legislative intent of the Farmland Preservation Act, and the fact that a farmland owner who has no intent to divert farmland owns farmland within the urban planning zone is liable to pay the farmland creation cost, which results in an unjust result (no legal restriction provision exists to deem that a farmland owner in the urban planning zone should be forced to divert farmland or is prohibited from using farmland according to the urban planning decision, etc.).

Therefore, the establishment time of the obligation to pay the farmland creation cost to be paid by the person who intends to divert farmland after consultation with the Minister of Agriculture and Forestry under Article 4 (4) of the amended Farmland Preservation Act shall not be the time of consultation with the Minister of Agriculture and Forestry at the time of the determination or designation of the urban planning district under paragraph (2) of the same Article, but shall be the time of actual diversion of farmland.

The court below held on May 9, 1987 that each of the farmland of this case, which was subject to consultation with the Minister of Agriculture and Forestry under the main sentence of Article 4 (2) of the amended Farmland Conservation Act, is legitimate in accordance with the legal principles as seen above, and there is no ground for misunderstanding the legal principles as to the requirements for imposition of farmland of this case and the time when the obligation to pay the farmland creation cost under Article 4 (4) of the amended Farmland Preservation Act was established and thus, it cannot be said that there is no ground for misunderstanding the principle of no taxation without the principle of no taxation without the law or the principle of no taxation without the law.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)