[1] Criteria to determine whether “the land is used for permitted purposes” under Article 124(1) of the National Land Planning and Utilization Act

[2] In a case where Party A, etc., obtained land ownership after obtaining permission for a land transaction contract for the purpose of "sale after construction of a single house," and completed a report on partial commencement of construction, and the head of the competent Gu determined that Party A, etc. failed to perform its duty to use as scheduled, the case affirming the judgment below that Party A, etc. did not use land for permitted purposes

[1] Article 124(1) of the National Land Planning and Utilization Act provides that "any person who has obtained permission for land transaction contract shall use the land for the permitted purpose for a period prescribed by Presidential Decree not exceeding five years, except in cases where any ground prescribed by Presidential Decree exists." Here, the meaning of "the purpose for which permission is granted" shall, in principle, be based on the entry of the permission for land transaction contract, and whether the land is used for the permitted purpose, shall be determined by comprehensively taking into account the purpose for which permission is granted, the contents of the land use plan submitted pursuant to Article 21(1) of the Enforcement Rule of the National Land Planning and Utilization Act at the time of application for land transaction permission, the status of the use of the permitted land, the extent of

[2] In a case where Gap corporation, etc. acquired ownership of land for the purpose of "after new construction of a single house," and did not implement the construction as scheduled after completion of a partial commencement report, the head of the competent Gu ordered Gap corporation, etc. to use the land for the purpose of permission after a field investigation, and notified Gap corporation, etc. of the pre-sale of disposition imposing charges for compelling the performance because it did not perform its duty to use as a result of a field investigation, the case affirming the judgment below that Gap corporation, etc. did not use the land for the purpose of permission in light of the fact that Gap corporation, etc. did not use the land for the purpose of permission even though the scheduled commencement date of the construction project (the scheduled development date) much more than the scheduled commencement date of the construction project (the scheduled development date)

[1] Article 124(1) of the National Land Planning and Utilization Act; Article 21(1) of the Enforcement Rule of the National Land Planning and Utilization Act / [2] Article 124(1) of the National Land Planning and Utilization Act; Article 21(1) of the Enforcement Rule of the National Land Planning and Utilization Act

[1] Supreme Court Order 2008Ma414 Decided May 19, 2008 (Gong2008Ha, 887) Supreme Court Order 2009Ma218 Decided May 14, 2009

Snish Business et al. (Law Firm Cheongdam, Attorneys Song Young-cheon et al., Counsel for the plaintiff-appellant)

The head of Yeongdeungpo-si branch office

Seoul High Court Decision 2010Nu27198 decided April 21, 201

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

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

1. Regarding ground of appeal No. 1

The argument in this part of the grounds of appeal is not a new argument that was raised only before the final appeal, and thus, it cannot be a legitimate ground of appeal as to the judgment below.

2. Regarding ground of appeal No. 2

A. Article 124(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “Any person who has obtained permission for land transaction contracts shall use the land for the purpose of obtaining permission for a period prescribed by Presidential Decree not exceeding five years, except in cases where there are grounds prescribed by Presidential Decree.” Here, the term “purpose of obtaining permission for the land” shall, in principle, be based on the entry in the permission for land transaction contract (see, e.g., Supreme Court Order 2008Ma414, May 19, 2008; Supreme Court Order 2009Ma218, May 14, 2009). Whether the land is being used for the permitted purpose should be determined by comprehensively taking into account the purpose for obtaining the permission, the content of the land use plan, the status of the use of the permitted land, the extent and reason of the use of the land, etc., submitted pursuant to Article 21(1) of the Enforcement Rule of the National Land Planning Act at the time of applying for land transaction permission.

According to the evidence of employment, the lower court: (a) on February 7, 2007, the Plaintiffs were merely the Defendant’s new construction of the instant land on the 20th anniversary of the date of construction commencement of the instant construction project; (b) on the 20th anniversary of the instant construction project, the instant land owned by the Plaintiff Sshack Business Co., Ltd. (hereinafter “Plaintiff Co., Ltd”; and (c) on each of the instant land owned by Plaintiff 2, “the instant land”; and (d) on each of the instant land, the instant land was approved for the purpose of sale after new construction of the instant land; and (e) on each of the instant land, the Plaintiffs did not file a report on the construction commencement of the instant construction project on the 20th anniversary of the scheduled date of construction commencement of the instant construction project; and (e) on each of the instant land for which the instant construction project was not completed by 70th anniversary of the scheduled date of construction commencement of the construction project on each of the instant land, the Plaintiffs did not report the construction commencement of construction project on each of each of the instant land.

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the performance of the obligation to use land permitted under Articles 124 (1) and 124-2 (1) of the National Land Planning and Utilization Act as alleged in the grounds of appeal.

B. The lower court determined that: (a) the act of interfering with passage through the land of this case by neighboring residents for reasons for delay of construction itself cannot be deemed as inevitable reasons corresponding to the implementation of public works stipulated in Article 124(1)7 of the Enforcement Decree of the National Land Planning and Utilization Act; (b) there is insufficient evidence to acknowledge that the passage of each land of this case was completely impossible due to interference with passage by neighboring residents; (c) even if the Plaintiffs were virtually unable to perform construction works on each land of this case due to interference with passage by neighboring residents, they did not take any measures such as claiming removal of interference against neighboring residents; (c) the construction cost expenditure for new construction of this case can only be seen as having been incurred by the Plaintiffs for the purpose of constructing a new access road after comparing the construction work of this case with that of an access road of this case; and (d) the construction work and new construction work of this case can not be deemed as having been performed by the Plaintiffs for reasons that it was difficult for them to construct a new access road after the implementation period of each of the construction works of this case.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to Article 124 (1) 7 of the Enforcement Decree of the National Land Planning and Utilization Act, as

C. The remaining grounds of appeal on this part are not legitimate grounds of appeal as to the judgment below, since there was no new argument that was raised only before the final appeal was made.

3. As to the third ground for appeal

The relevant Acts and subordinate statutes on the imposition of enforcement fines to a person who has obtained permission for a land transaction contract do not stipulate whether the person who has obtained permission for a land transaction contract is the actual user of the land transaction contract or whether the purpose of speculation is to impose enforcement fines. Thus, even though the court below did not examine whether the plaintiffs are the actual user in determining whether the disposition of this case against the plaintiffs was unlawful or whether the plaintiffs were the purpose of speculation,

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Lee In-bok (Presiding Justice)