Whether the reason for the extension of the mandatory period for use and development or the case where it is actually impossible for a third party to construct a housing site subject to the imposition to file a lawsuit to cancel the registration of ownership transfer and to construct a prior notice registration (negative)

The issue of whether a building site constitutes "a site which is not de facto impossible" under the latter part of Article 20 (1) 3 of the Act on the Ownership of Housing Sites should be determined by the objective circumstance inherent in the relevant land itself. Thus, the subjective circumstance that a third party is difficult to dispose of because he/she continues to file a lawsuit for cancellation of ownership transfer registration in the course of disputing ownership of a company, etc., or he/she has filed a prior notice registration in the course of filing a lawsuit for cancellation of ownership transfer registration. In addition, the circumstance does not fall under any other item provided for the exception to the latter part of Article 20 (1) 3 of the same Act.

Articles 18(1), 20(1)1 and 3 of the Act on the Ownership of Housing Sites, Article 21 subparag. 1 and 21-2 of the Enforcement Decree of the Act on the Ownership of Housing Sites, Article 9-2(1) of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Ordinance of the Ministry of Construction and Transportation No. 32 of September 4, 1995)

Supreme Court Decision 96Nu2941 delivered on June 14, 1996 (Gong1996Ha, 2235) Supreme Court Decision 96Nu17318 delivered on March 14, 1997 (Gong1997Sang, 1746)

Samdongsan Co., Ltd. (Attorney Lee Sang-hoon, Counsel for defendant-appellee)

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Woo General Law Office, Attorneys Gag-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 96Gu14199 delivered on September 19, 1996

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

We examine the grounds of appeal.

The court below is just in holding that the issue of whether it constitutes "a site that cannot be constructed" under the latter part of Article 20 (1) 3 of the Act on Ownership of the Housing Site should be determined by the objective circumstance inherent in the land itself. Thus, it cannot be viewed as a ground for exclusion solely on the subjective circumstance that the third party is continuing to file a lawsuit for cancellation of ownership transfer registration in the course of disputing the ownership of the plaintiff, etc., or making a prior notification registration difficult to dispose of because it is difficult to dispose of the land. In addition, it is just in holding that such circumstance does not fall under any other item that provides a ground for exception to the imposition of charges other than the latter part of Article 20 (1) 3 of the Act, and there is no error of law such as the theory of lawsuit.

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 Kim Jong-sik (Presiding Justice)