(영문) 서울고등법원 2014.3.18. 선고 2013누19822 판결

The Defendant’s imposition of KRW 16,950,444,60 on April 26, 2012 and the imposition of KRW 1,932,350,640 on December 26, 2012 on the Plaintiff and the imposition of KRW 1,932,350,640 on the Plaintiff are revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

Reasons

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought revocation of each disposition stated in the purport of the claim against the Defendant, and the court of the first instance accepted only the part of the claim for revocation of the imposition of occupation and use fees, and rejected the remainder of the claim for revocation of the imposition of additional dues. Accordingly, the Defendant appealed against this, the subject of the first instance judgment is limited to the part of the claim for

2. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the first instance court’s decision, in addition to using or adding part of the judgment of the first instance as stated in the following paragraph (3). Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Parts used or added;

Article 26(1)12, 13, and 4 of the Enforcement Decree of the Act on the Development of Urban Areas and Dwelling Conditions (Article 26(1)12 of the Act on the Development of Urban Areas and Dwelling Conditions for Residents, Article 65(4) of the National Land Planning and Utilization Act) of the first instance judgment No. 16 through 8, “In the case of a previous redevelopment project, a project proprietor who is not an administrative agency may be deemed to have obtained approval, permission, etc. under the Act on the occupancy and use of public facilities included in the approval of a project plan.” In this case, a project implementer was exempted from occupancy or use fees due to the occupancy or use of the relevant public facilities (Article 33(8) of the Housing Construction Promotion Act and Article 65(4) of the National Land Planning and Utilization Act). In the case of a urban redevelopment project, the project implementer is deemed to have obtained permission for the implementation of a previous urban redevelopment project, and was exempt from usage fees or use fees imposed under the related Acts or ordinances of a local government (Article 26(1)2)2(c)1)3).

○ In Part 15 of the 16th judgment of the first instance court, the phrase “other than the agenda is excluded from the agenda” has been written.

○ In the 17th sentence of the first instance judgment, the part of the "compact and interpretation" in the 8th sentence of the first instance judgment shall be interpreted as "compactably".

○ 제1심 판결문 제19쪽 제6행 다음에 아래 『』를 추가한다.

Article 32 (5) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Revised and Improvement of Urban Areas and Dwelling Conditions for Residents") provides that "the defendant shall be exempted from the usage fees or occupation fees for the use or occupation of the relevant state-owned or public-owned or public-owned land, regardless of whether they are imposed for the relevant authorization or permission," and Article 1 and Article 7 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Revised and Improvement of Urban Areas and Dwelling Conditions for Residents") provide that "the fees or occupation fees for the use or occupation of the relevant state-owned or public-owned land shall also be exempted from the usage fees or occupation fees for the use or occupation of the relevant state-owned or public-owned land," and Article 32 (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "former Act"), which provides that the amended provisions of Article 32 (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling shall apply retroactively."

However, Article 32 (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Corporation is not subject to exemption of usage fees or occupation fees for the use or occupation of the pertinent state-owned or public-owned land, regardless of whether it is imposed for the pertinent authorization or permission, and should be interpreted as exempted only from usage fees or occupation fees imposed for the pertinent authorization or permission. The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Corporation provided that "the fees imposed for the pertinent authorization or permission shall be exempted," and the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Corporation shall be deleted.

허가 등의 대가로 부과되는 수수료와 해당 국유지 · 공유지의 사용 또는 점용에 따른 사용료 또는 점용료를 면제한다'고 규정하고 있는바, 개정 도시정비법은 기존의 '수수료 등'의 의미를 명확히 하는 차원에서 이를 '수수료와 ... 사용료 또는 점용료'로 수정한 것으로 보이는 점, ㉢ 개정 도시정비법 부칙 제1조, 제7조가 개정 도시정비법 제32조 제6항 개정규정의 소급 적용을 배제하는 것으로 규정하고 있기는 하나, 이는 개정 규정의 시행일 및 적용범위를 규율하기 위한 것일 뿐, 이로써 기존 '수수료 등의 해석을 '수수료'만으로 한정하기 위하여 위 부칙 규정을 둔 것으로 보기는 어려운 점, ㉣ 개정 도시정비법의 당초 개정안에 대한 국회의 심사보고서(갑 제16호증)에 의하면 개정안은 기존에 주택재개발사업과 도시환경정비사업에 한하여 인·허가 등이 의제되는 경우 그 대가로 부과되는 수수료와 해당 국유지 · 공유지의 사용료 또는 점용료를 면제하던 것을 모든 정비사업에 대하여 면제하기 위하여 구 도시정비법 제32조 제1항 제12호에 규정된 '(주택재개발사업 및 도시환경정비사업에 한한다)' 부분을 삭제하고 제32조 제6항의 문구를 개정 도시정비법과 같이 수정하였는데, 개정 과정에서 제32조 제1항 제12호는 그대로 남게 되고 제32조 제6항만 개정된 것인 점 등을 고려하면 피고의 위 주장도 이유 없다.』

4. Conclusion

Therefore, the judgment of the first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.