Whether Article 8 (1) 2 of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13465 of September 13, 191) is invalid due to a violation of Article 9 (3) 2 of the same Act as the parent corporation.

According to Article 9 (3) 2 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), the time of completion of the development project shall, in principle, be the date the completion of the development project is authorized, and if the project operator starts to use the land for the purpose of the development project, the time of completion of the development project shall be the time of completion of the development project. According to Article 5 of the same Act and Article 4 [Attachment I] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13465 of Sept. 13, 1991), other than the housing site development project under the Housing Construction Promotion Act, the housing site creation project implemented by a person who has obtained approval for the housing construction project plan under the same Act shall be provided for in the project subject to development charges. Thus, since the project operator starts the construction of housing on the land after completion of housing construction project, the time of commencement shall be the date of commencement of use for the purpose of the development project, and Article 8 (1) 2 of the Enforcement Decree shall be null and void because it unfairly violates the mother Act.

Articles 9(3)2 and 5 of the former Restitution of Development Gains Act (Amended by Act No. 4563, Jun. 11, 1993); Article 4 [Attachment 1] and Article 8(1)2 of the former Enforcement Decree of the Restitution of Development Gains Act (Amended by Presidential Decree No. 13465, Sep. 13, 1991);

Supreme Court en banc Decision 93Nu7495 delivered on March 22, 1994 (Gong1994Sang, 1345)

Hyundai Group 3 Workplace Housing Association (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

The head of Gwangjin-gu Seoul Metropolitan Government (Attorney Kim Dong-hwan, Counsel for defendant)

Supreme Court Decision 92Nu15703 Delivered on February 8, 1994

Seoul High Court Decision 94Gu7326 delivered on December 6, 1994

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

The defendant's attorney's grounds of appeal are examined.

According to Article 9 (3) 2 of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter referred to as the "Act"), the time of completion of a development project shall, in principle, be the date the completion of the development project is obtained, and where a project operator starts to use the land for the purpose of the development project, the time of completion of the development project shall be the time of completion of the development project. According to Article 5 of the Act and Article 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13465 of Sep. 13, 1991; hereinafter referred to as the "Enforcement Decree"), in addition to a housing site preparation project under the Housing Construction Promotion Act, a site creation project implemented by a person who has obtained approval of the housing construction project under the same Act for housing construction project shall be provided for in the project subject to the imposition of development charges. Thus, if a housing construction project starts on the land after completion of housing construction project, the time of commencement shall be deemed to be the "the commencement of use for the development project for the purpose".

According to the facts duly confirmed by the court below in this case, the plaintiff implemented a housing construction project with the approval plan for the construction of privately constructed houses under the Housing Construction Promotion Act, together with the housing site development project for the construction of the apartment, and was completed by January 1, 1990 on the day after the enforcement date of the Act. Thus, the housing site development project implemented by the plaintiff was completed by the commencement of the use of the purpose road prior to the enforcement date of the Act. Thus, the imposition of the development charges in this case is illegal because it was conducted by the development project for which the project has already been completed before the enforcement date of the Act.

Although the judgment of the court below is somewhat insufficient in its reasoning, it is justified in its conclusion that the disposition of this case was unlawful, and therefore, it is therefore without merit.

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

Justices Cho Chang-tae (Presiding Justice)