A. Whether measures to restrict construction permission under Article 44 (2) of the former Building Act constitute prohibition or restriction of use under Article 23 (1) of the Enforcement Decree of the former Land Excess Profit Tax Act

(b) The meaning of "for the purpose of constructing a new building" under subparagraph 3 of Article 23 of the same Enforcement Decree;

(c) Requirements for the application of the proviso of Article 23 subparagraph 3 of the Enforcement Decree of the same Act (93Nu12022 June 10, 94).

A. Unlike the main text of Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Gains Tax (amended by Presidential Decree No. 13655 of May 30, 192), the proviso of Article 23 subparag. 3 of the former Enforcement Decree of the same Act provides for the requirements to add the period of restriction on construction within one year from the date of acquisition, and the use of land is restricted by the measures that specify the purpose and size of the building and restrict the temporary use of the building by the measures that restrict the use of the building permission for a limited period of time by specifying the use and size of the building from the land owner. Thus, the special provisions for Article 23 subparag. 1 of the same Enforcement Decree, which are general provisions for the prohibition or restriction of use under the Act and subordinate statutes, should be deemed as the restriction of the building permission under Article 44(2) of the former Building Act (amended by Presidential Decree No. 13198 of Dec. 31, 190).

B. "Purpose of constructing a new building" in the main sentence of Article 23 subparagraph 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13655 of May 30, 192) means the intent to construct a new building within a reasonable and reasonable period of time by preparing a new building plan and funds in light of the legislative intent of the Land Excess Profit Tax Act that intends to suppress idle land. It does not mean the purpose of constructing a new building that is objectively reasonable and reasonable within one year from the date of acquisition of land, or the purpose of constructing a building that is sufficient to the extent that such idle land as provided in Article 8 (1) 4 (a) of the Land Excess Profit Tax Act is not limited to the construction of a building that is smaller than the extent that such idle land is not generated.

C. In light of the purport of the proviso of Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13655, May 30, 1992), if a landowner files an application for a building permit, etc. within one year from the date of acquisition of land, regardless of whether the period of restriction on the building permit is prior or subsequent, if the land is subject to a restriction on the building permit, the size or use of the building to be constructed is subject to the restriction on the building permit. In such a case, if a landowner files an application for the building permit, etc. within one year from the date of acquisition of land pursuant

(a)(c)Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Profit Tax Act; Article 44(2) of the former Building Act (see Article 12(1) of the current Building Act); Article 23 subparag. 1 of the former Enforcement Decree of the Land Excess Profit Tax Act;

A. Supreme Court Decision 93Nu2995 delivered on January 25, 1994 (Gong1994Sang, 848) 93Nu17591 delivered on March 25, 1994 (Gong1994Sang, 1367), Supreme Court Decision 93Nu7303 delivered on May 10, 1994 (Gong194Sang, 1729)

Plaintiff

Head of Ansan Tax Office

Seoul High Court Decision 92Gu21342 delivered on April 29, 1993

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

We examine the grounds of appeal.

1. Comprehensively taking account of the evidence adopted by the Plaintiff, the lower court: (a) was issued with a substitute lot of 260.7 square meters on July 7, 1982 and ( Address 2 omitted) 1,012 square meters on the ground; (b) extended the area of 164.42 square meters on September 2, 1978 on the ground; (c) extended the area of 658.89 square meters on the ground of 1992 to 658.89 square meters on the ground; and (d) newly constructed a neighborhood living facility and housing on the 14th underground floor on July 14, 1992 on the ground that the lower court’s determination on the land exceeding 100 square meters on May 14, 1990 was insufficient; (b) the Defendant, on the ground that the lower court’s determination on the land exceeding 1000 square meters on the ground that it did not constitute an unlawful determination on the land under Article 44(2) of the former Building Act.

2. Article 23 subparag. 3 of the Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13198, Dec. 31, 190; Presidential Decree No. 13655, May 30, 1992; hereinafter the same shall apply) provides that where a person who applied for construction permission, etc. acquires land for the purpose of constructing a new building, such land shall not be deemed idle land for one year from the date of acquisition, and where a person is unable to construct a new building due to restrictions on construction permission under Article 44 of the former Building Act within one year from the date of acquisition, but the commencement of construction is restricted by administrative guidance for the adjustment of supply and demand of construction materials, the land shall not be deemed idle land for one year after the date of acquisition of the limited period, unlike the main sentence of Article 23 subparag. 3 of the Enforcement Decree of the Building Act which was inevitably required for construction permission, and thus, it shall not be deemed that the application for construction permission or restriction under Article 23 subparag. 4 of the former Enforcement Decree is justified in that it does not constitute a specific provision of Article 3 subparag. 4.

3. However, in light of the legislative intent of the Land Excess Profit Tax Act, "the purpose of constructing a new building" in the main sentence of Article 23 subparagraph 3 (a) of the Enforcement Decree means the intention to build a new building within a reasonable and reasonable time after preparing a new building plan and funds in order to restrain idle land. It is not limited to the purpose of constructing a new building within one year from the date of acquisition of land as stated in the judgment of the court below, or the purpose of constructing a building which is evaluated as reasonable and reasonable within one year from the date of acquisition of land, or the purpose of constructing a building which has the size of the amount of such idle land as stipulated in Article 8 (1) 4 (a) of the Land Excess Profit Tax Act,

In full view of the evidence rejected by the court below, the plaintiff acquired the land of this case for the purpose of new construction of the building. Thus, although the land of this case can be excluded from idle land until December 30, 1990, which is considered one year after its acquisition date pursuant to the main sentence of Article 23 subparag. 3 of the Enforcement Decree and Article 23 subparag. 4 of the Addenda, the court below's rejection of the plaintiff's assertion for reasons as stated in its holding is erroneous in the misapprehension of the legal principle of the main sentence of Article 23 subparag.

On the other hand, in light of the purport of the proviso of Article 23 subparagraph 3 of the above Article 23 that requires a building permit application, etc., if a landowner applied for the building permit, etc. as above within one year (excluding the building permit restriction period) from the date of acquisition of land, regardless of whether or not before or after the construction permit restriction period, the building permit restriction period should be deemed excluded from idle land during the period calculated by adding the building permit restriction period to one year from the date of acquisition of land pursuant to the proviso of Article 23 subparagraph

According to the records, although the plaintiff could not be seen as an application for a building permit to the public official in charge of May 1990 who applied for a building permit to the authority on October 12, 191 but the plaintiff was rejected for the reason that the construction permit was limited until March 31, 1992 pursuant to Article 4(2) of the former Building Act after the plaintiff applied for a building permit to the authority on October 12, 191. Thus, if the plaintiff applied for a building permit to be constructed within one year (excluding the period of restriction on the building permit), the size and purpose of the building should be subject to the measures of restriction on the building permit and the extension of the construction permit, and if the plaintiff applied for a building permit to be limited within one year (excluding the period of restriction on the building permit) from the acquisition date of the land, it shall be deemed as satisfying the requirements of Article 23 subparag. 3 of the Enforcement Decree. 3 of the Building Act. Accordingly, the court below's decision that the proviso of Article 23 subparag. 3 of the Enforcement Decree

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)