(a) The case holding that there is an error of incomplete deliberation and lack of reasons, in recognizing that the status of land category on the public register is the de facto miscellaneous land;

(b) Method of proving whether farmland is excluded from the official land; and

(c) Whether the land, the use of which is prohibited by the construction and use of which is by the administrative measures, is excluded from the agricultural land (affirmative)

A. The judgment of the court below that the land category on the public register is growing in part of the land whose land category is a whole area, and in other parts, the remaining areas are cultivated without confirming how the area actually cultivated is out of the whole area, and even if the land actually used remains in the form of cultivation, if the land actually used remains in the form of cultivation, it cannot be said that the farmland is not farmland, and the actual status of the land in fact should be considered as miscellaneous land, not farmland, without further examining the situation of the neglected part, and it is erroneous in the incomplete hearing and the lack of reasoning.

B. From the original date, the land does not fall under the site, factory site, school site, and miscellaneous land stipulated in the main sentence of Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by December 31, 1986) shall be excluded from the public land as a matter of course, and the provisions of the proviso of the above Enforcement Decree, which provide that the land shall be excluded from the public land when it is proved that the farmland was farmland by the method of proof, such as the farmland tax ledger, etc. under subparagraph 3 of Article 78-3 of the Enforcement Rule of the same Act (amended by December 31, 1986) shall apply to the case where the land which is the public land was farmland located in the middle of the original farmland, so what land was originally farmland, can be proved by other method

(c)"Acts and subordinate statutes" referred to in subparagraph 1 (i) of Article 78-3 of the former Enforcement Rule of the Local Tax Act, excluding land, the use of which under construction and use of which is prohibited by legislation, includes not only the laws and regulations themselves, but also the administrative measures under the legislation;

(a)(b)Article 142(1)1(f) of the former Enforcement Decree of the Local Tax Act (amended by December 31, 1986); Article 394(1)6(b) of the Civil Procedure Act; Article 78-3 subparag. 3 of the former Enforcement Rule of the Local Tax Act (amended by December 31, 1986); (c) Article 78-3 subparag. 1(a) of the former Enforcement Rule of the Local Tax Act (amended by December 31, 1986);

C. Supreme Court Decision 81Nu81 delivered on February 23, 1983

Plaintiff Lee Young-soo et al., Counsel for the plaintiff-appellant

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 87Gu1139 delivered on June 21, 198

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the ground of appeal No. 1 by the plaintiff Lee Young-young, Counsel for the plaintiff-appellant

According to the reasoning of the judgment below, the court below held that since 1973, the land of this case was originally owned by a school juristic person for the purpose of acquiring its ownership on November 28, 1978, but it was sold to the non-party Hanbu Housing Co., Ltd. on or around July 31, 1982 but it was impossible to receive any balance, the sale contract was cancelled and the ownership was returned to the plaintiff again, and the land is located in a residential area before its land category was entered into the public register. The non-party managed ornamental trees, etc. which were planted on or around 100 square meters of land among the land of this case from the owner of this case at the time of May 13, 1972, and paid KRW 150,000 as pension charges, and cultivated the land of this case without collecting part of the land on the ground of this case, and then the plaintiff purchased it again from the plaintiff again on July 5, 1979, and the non-party should have been found to be part of the land of this case's farmland.

However, even according to the above facts of recognition by the court below, the land category in the public register is increased by approximately 100 square meters among the land of this case, the former land category of which is 1,200 square meters (3,967 square meters), and some of which are cultivated, and the remaining land is neglected to be used. Thus, the above facts of the court below's determination alone do not reveal that the land actually being used as the actual arable land among the remaining land except for the 100 square meters of ornamental trees from 1,200 square meters of the land of this case, and it cannot be seen that the actual status of the land of this case should be deemed as miscellaneous land not as farmland but as miscellaneous land, on the sole basis of the above facts of recognition alone.

The court below should have determined the extent of the area actually cultivated among the land in this case, and if the land actually cultivated remains in the form before the cultivation is possible even if the land is left in the form of farmland, it cannot be said that it is not farmland, and should have judged whether it is farmland by further examining the situation of the neglected part. The grounds for appeal on this point are justified.

2. We examine the ground of appeal No. 1 by the Plaintiff-Appellant and the ground of appeal No. 2 by the attorney Lee Young-young as well.

(1) Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by the Ordinance of the Ministry of Home Affairs prior to December 31, 1986), which applies to this case, provides that "land for public use is without ground settlement (not considered as ground settlement) as land sites, factories, school sites, and miscellaneous land (excluding dry field, stone collection site, and earth collection site) within an area as determined by the Ordinance of the Ministry of Home Affairs as of the starting date of the payment of the property tax, but the following land shall not be considered as vacant land."

Examining the contents of each of the above provisions, although the current status of land falls within the original site, factory site, school site, or miscellaneous land, it constitutes a public land. However, even if such land is actually changed on January 14, 1974, it is interpreted that if the use of farmland has been used as farmland before it was changed, and such relation has been proved by the method of proof prescribed by the above Enforcement Rule, such as the farmland tax ledger, etc., it is excluded from the public land.

In other words, the current status of the land from the original date does not fall under the site, factory site, school site, and miscellaneous land as stipulated in the main sentence of Article 142 (1) 1 (6) of the Enforcement Decree of the above Act shall be excluded as a matter of course from the vacant land, and it shall not be excluded under the proviso. However, when the land whose current status belongs to the original public land is de facto farmland and it has been proved by the method of proof as stipulated in the above Enforcement Rule, it shall be excluded from the vacant land under the above proviso.

Therefore, in the case of the proviso of Article 142 (1) 1 (6) of the Enforcement Decree, the provision on the method of proving the farmland tax ledger, etc. under Article 78-3 subparagraph 3 of the above Enforcement Rule is a provision applicable to the case where the land which is the original public land is converted into farmland in the middle of the original public land, i.e., the main sentence of Article 142 (1) 1 (6) of the Enforcement Decree, which is not a provision applicable to the case where the land is converted into farmland in the middle of

In addition, there is no room to regard the provision on the method of proof, such as the farmland tax ledger under the above Enforcement Rule as a simple example provision, but it is not reasonable to regard the application of the law as an invalid provision in conflict with the parent law, such as the theory of litigation interpreting the above.

(2) If the instant land is not a site or a miscellaneous land from the original point of view, it is excluded from the place of view as a matter of course pursuant to the main sentence of Article 142(1)1(6) of the Enforcement Decree of the said Act. Thus, if the instant land is farmland which is not a farmland in the middle of the original point of view, it is not necessary to consider whether it falls under the new proviso. However, if it is farmland which is not farmland in the middle of the original point of view, it may be excluded from the public place of view only if the requirements for proving farmland composition are met pursuant to the proviso and Article 78-3 subparag. 3 of

It is inappropriate for the court below to have held that the relation with the main sentence and proviso of Article 142 (1) 1 (6) of the Enforcement Decree of the above Act shall not be deemed as above and shall be excluded from the official land as farmland, or that the above provision shall meet the requirements for certification under Article 78-3 (3) 3 of the above Enforcement Rule. However, the conclusion that the above provision shall not be deemed null and void shall

3. We examine the grounds of appeal No. 2 by the Plaintiff-Appellant and the ground of appeal No. 3 by Justice Lee Young-young as well.

According to the reasoning of the judgment below, with respect to the plaintiff's assertion that the land of this case is excluded from the vacant land pursuant to Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act, and Article 78-3 (1) 1 (1) and 10 of the Enforcement Decree of the same Act, the court below rejected the plaintiff's use of the land of this case under Article 78-1 (1) of the former Local Tax Act, based on the following facts: (a) the land of this case was constructed on the west through apartment and the fence was installed on the west and the land of this case was de facto miscellaneous with no ground settlement on the west; (b) the land of this case was located on the west, and (c) the land of this case was located adjacent to the fence of the Gyeongsung Institute, and located more than 10 meters wide, and (d) the land of this case was located within the boundary of the land of this case without any permission for change of the form and quality or permission for construction; and (d) the land of this case's.

However, according to the evidence Nos. 11 (A) and 14-1 and 2 (in the case of question and question) of the same 14-2 (in the case of question and question), and the second on-site verification by the court below, it is clear that the scope of the access road from the public notice to the land in this case is about 2 meters, which is the requirement for permission for changing the form and quality of land, and the width of the access road is at least 2 meters. Thus, it is clear that the plaintiff claims that the land constitutes the land, the use of which is prohibited under the provisions of laws and regulations of Article 78-3 (1) (1) of the Enforcement Decree of the Local Tax Act, on the ground that the plaintiff cannot obtain permission for changing the form and quality of land

However, the above laws and regulations include not only the statutes themselves but also administrative measures under the laws and regulations (see Supreme Court Decision 81Nu81, Feb. 22, 1983). Thus, the court below should have deliberated and judged whether the restriction on change of form and quality under the above laws and regulations of Seoul Special Metropolitan City constitutes the prohibition of construction or use of the above laws and regulations, but the court below should have judged that the surrounding status of the land in this case and the fact that the plaintiff neglected the restriction without any name to apply for change of form and quality or the permission for construction without any change of the land form and quality without any name, and determined that the land is not an object to be excluded from the public opinion under subparagraph 1 (i) of Article 78-3 of the above Enforcement Rule, and there is a good reason to view that the court below erred by failing to exhaust all necessary deliberations, which affected

4. Therefore, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)