[1] Criteria for determining whether a farmland constitutes "farmland" under Article 2 subparagraph 1 of the former Farmland Preservation and Utilization Act

[2] Whether imposition of farmland creation cost and farmland diversion charges is legitimate in a case where the alteration of the current state is temporary, even if the current state has already been changed as farmland at the time of the building permit (affirmative)

[1] Under Article 2 subparag. 7 and Article 4(4) of the former Farmland Preservation and Utilization Act (repealed by Article 2 of the Addenda to the Farmland Act, Act No. 4817 of Dec. 22, 1994), and each subparagraph of Article 45-2 of the Act on the Special Measures for the Development of Farmland, land shall be "farmland" under Article 2 subparag. 1 of the Farmland Preservation and Utilization Act in order to impose farmland creation cost and farmland diversion charges pursuant to farmland diversion. Whether land is farmland under the above Article shall be determined according to the actual phenomenon of the pertinent land regardless of the land category in the public record, regardless of the land category in the public record, in case of land whose public record is land category has changed, and if the change is deemed a temporary change, and if the restoration of farmland can be easily made, the land still constitutes farmland under the former Farmland Preservation and Utilization Act.

[2] It is difficult to see that the land in dispute has already lost the nature of farmland as farmland at the time of applying for a building permit, and even if the land in question has changed the status as farmland due to construction work based on the previous permission of change of the form and quality of farmland, the permission of change of the form and quality has been legally revoked before the completion of the construction work, and it is possible to restore the land above as farmland, so the alteration of the current state is temporary, because the land in dispute still falls under farmland as referred to in the provisions of the Farmland Conservation and Utilization Act (repealed by Article 2 of the Addenda of the Farmland Act, Law No. 4817, Dec. 22, 1994). Therefore, the imposition of farmland creation cost and farmland diversion charge for the whole land is legitimate.

[1] Article 2 subparag. 1, subparag. 7, and Article 4(4) of the former Farmland Conservation and Utilization Act (repealed by Article 2 of the Addenda to the Farmland Act, Act No. 4817 of Dec. 22, 1994), Article 45-2 of the Act on the Special Measures for the Development of Agricultural and Fishing Villages / [2] Article 2 subparag. 1, subparag. 7, and Article 4(4) of the former Farmland Conservation and Utilization Act (repealed by Article 2 of Addenda to the Farmland Act, Act No. 4817 of Dec. 22, 1994), Article 45-2 of the Special Act on the Development of Agricultural and Fishing Villages

[1] Supreme Court Decision 95Nu18901 delivered on June 14, 1996 (Gong1996Ha, 2228) Supreme Court Decision 96Do1536 delivered on September 24, 1996 (Gong199Ha, 3263)

Mine Construction Business (Attorneys Park Yong-dae et al., Counsel for the plaintiff-appellant)

The Rural Development Corporation (Attorney Kim Jae-chul et al., Counsel for defendant-appellee)

Busan High Court Decision 95Gu4902 delivered on December 6, 1996

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

The plaintiff's attorney's grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed by the plaintiff 1) are examined as follows.

Article 2 subparag. 7 and Article 4(4) of the former Farmland Preservation and Utilization Act (amended by Act No. 4817 of Dec. 22, 1994; hereinafter the Farmland Preservation Act); Article 45-2 of the Act on the Special Measures for the Development of Farmland shall be “farmland as provided in Article 2 subparag. 1 of the Farmland Preservation Act to impose farmland creation cost and farmland diversion charges pursuant to the farmland diversion.” Whether the land is farmland as provided in the above Article must be determined according to the actual state of the land regardless of the land category in the public record, regardless of the land category in the public record, if the land category in the public record is a land, and if the change is deemed a temporary change, and if it is possible to restore the farmland as farmland, the land still constitutes farmland as provided in the Farmland Preservation Act (see, e.g., Supreme Court Decisions 95Nu18901, Jun. 14, 1996; 9Do16564, Feb. 6, 1996).

Examining the reasoning of the judgment below in comparison with the records and related Acts and subordinate statutes, it is difficult to see that the land in dispute in this case has already lost its character as farmland at the time of applying for a building permit, and even if the land in this case has changed its status as farmland due to construction work based on the previous permission for change of land form and quality, the change in the form and quality of land has been legally cancelled before the construction work is completed and it is possible to restore the land in this case to farmland. Thus, the land in dispute in this case still constitutes farmland as provided in the Farmland Conservation Act, and therefore the imposition of farmland creation cost and farmland diversion charges on the whole land is legitimate, and there is no error of law such as misunderstanding of facts as to the scope of farmland, misunderstanding of legal principles as to the method of calculating farmland creation cost, etc., as otherwise alleged in the grounds of appeal.

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 Song Jin-hun (Presiding Justice)