Whether the imposition of development charges imposed on a person operating a golf range on a parcel of land owned by another person under the former Restitution of Development Gains Act is void automatically.

Where the Mayor imposes development charges on a person who operates a golf range on a parcel of land owned by another person under the former Restitution of Development Gains Act (amended by Act No. 4434 of Dec. 14, 1991), the disposition is a serious defect because it is illegal for a person who is not a taxpayer or is not subject to imposition. However, even though it is merely a landowner, it may be clarified that the facts and statutes can be accurately examined and interpreted as to whether the development gains accrued due to the implementation of the disposition, and it is reasonable to deem that there is room for dispute as to whether the construction project of a golf range is subject to the imposition of development charges. Thus, it cannot be deemed that the defect is apparent at the time of the imposition of development charges, and thus, it cannot be deemed that the imposition of development charges is null and void.

Article 741 of the Civil Act; Articles 3(1), 5(1), and 6(1) of the former Restitution of Development Gains Act (Amended by Act No. 4434, Dec. 14, 1991); Article 4 of the former Enforcement Decree of the Restitution of Development Gains Act (Amended by Presidential Decree No. 13465, Sep. 13, 1991); Article 3-2 of the Enforcement Rule of the Restitution of Development Gains Act

Supreme Court Decision 93Nu2940 delivered on July 16, 1993 (Gong1993Ha, 2314) Supreme Court Decision 92Nu19354 delivered on August 14, 1993 (Gong1993Ha, 2639) Supreme Court Decision 93Nu10521 delivered on October 8, 1993 (Gong193Ha, 3087)

Kim Young-young (Attorney Lee Jae-hwan, Counsel for the plaintiff-appellant)

Ulsan City (Maximum attorney-at-law, Counsel for defendant-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff the amount of 78,679,810 won and the amount of 5% per annum from the day following the service of the copy of the complaint of this case to the day of the sentencing of this case and 25% per annum from the day after the day to the day of full payment.

1. Determination on this safety defense

With respect to the lawsuit of this case for which the plaintiff sought the return of the amount, etc. to be paid on the premise that the imposition of development charges by the Ulsan City market as seen above 2. The defendant asserts that even if the above disposition of this case is not null and void as a matter of course, the plaintiff should seek the return of the development charges, etc. already paid as a civil lawsuit without going through the procedures for revocation under the Administrative Litigation Act, but if the administrative disposition, which is the disposition of imposition of development charges, is null and void as a matter of course, the plaintiff may seek the return of the development charges already paid as a civil lawsuit. The plaintiff asserted that the above disposition of imposition of development charges is null and void as a matter

2. Judgment on the merits

(a) Basic facts;

The facts in dispute between the parties are as follows: Gap evidence 1, Gap evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 5, Gap evidence 6, Gap evidence 7, Gap evidence 8, Gap evidence 9-1, 2, Gap evidence 11-1, 2, 3, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3, Eul evidence 4, Eul evidence 5, Gap evidence 7, Gap evidence 8, Gap evidence 9-1, 10, Eul evidence 11-2, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3, Eul evidence 4, and witness Kim Jong-he evidence.

(1) In order to construct a golf range in part of 11,682m of 2 forest land in Nam-dong, Nam-gu, Seoul Special Metropolitan City, the plaintiff around March 1990, in order to build a golf range, 9,585m2 of the above Kim Jong-dong (this land was divided from the above 103-2 forest land on August 27, 1990 and became the same 103-7 forest land in the above 655m forest in the same day on the same day). The lease period was from November 1, 1990 to 10 years, while the rent was free of charge, on condition that all of the rights to all the facilities and equipment were transferred to the lessor without compensation (the lease contract was made between the plaintiff and the above 10-2 forest in the above 15th of October 15, 190).

(2) Therefore, on April 11, 1990, the Plaintiff obtained a business license including permission for changing the form and quality as a site for sports facilities from the Ulsan City Mayor as to 9,935m2 of the above 103-2 forest land, and completed the construction work on July 9, 1990 after starting the construction of the above facilities around that time.

(3) On October 19, 190, the remaining head of Ulsan City delegated the development charges and additional dues on the ground that the development gains equivalent to KRW 393,446,72 have accrued to the Plaintiff, who is the above project implementer. On November 19, 1990, the Plaintiff dissatisfied with such a disposition and filed an administrative appeal seeking revocation of the said imposition of the development charges and additional dues on the ground that the Plaintiff did not apply the officially announced land price as of January 1, 1990 when the development project commenced on April 11, 1990, and did not determine the real estate value at the time of commencement of the development project by applying the officially announced land price as of January 1, 199, but did not determine the real estate value at the time of commencement of the development project, and the development charges imposed upon the Plaintiff after calculating the development gains based on the officially announced land price as of July 1, 198. The Central Land Tribunal accepted the Plaintiff’s appeal on February 23, 1991.

(4) Accordingly, on March 22, 1991, the Plaintiff paid KRW 2,00,000 to the Defendant as a fine for negligence, and KRW 76,679,810 in total as development charges on September 15, 199 and KRW 78,679,810 in total.

B. The plaintiff's assertion and its determination

(1) As the cause of the instant claim, the Plaintiff’s development gains from the increase in the value of the land owned by another person shall revert to the land lessee, barring any special circumstances. However, the Ulsan City Mayor did not confirm the owner of the above land and imposed the instant disposition on the Plaintiff, which is merely a lessee. Furthermore, the Defendant asserts that the construction project of the golf practice range is not subject to imposition of development charges under Article 5(1)9 of the former Restitution of Development Gains Act (amended by Act No. 4434, Dec. 14, 191; hereinafter referred to as the “Act”) which was enforced at the time of the authorization of the instant project, and it cannot be deemed as the “golf course construction project” under Article 5(1) of the Act and Article 4 [Attachment 1] of the Enforcement Decree thereof (amended by Presidential Decree No. 13465, Sep. 13, 191; hereinafter referred to as the “Act”), and thus, the Defendant does not have any legal obligation to pay the development charges to the Plaintiff.

(2) Therefore, in order to say that an administrative disposition is null and void abrupt, it is insufficient to say that there is a serious defect in the disposition, and the defect is apparent. Thus, a project operator who is a person obligated to pay development charges under Article 6 of the above Act does not belong to a person subject to the imposition of development charges, and unless there are special circumstances, a project operator who is merely a lessee is not a person obligated to pay development charges, and unless there are special circumstances, a project operator is not a person subject to the imposition of development charges, and a project of constructing a golf range under the applicable period of the above Act and its Enforcement Decree is not subject to development charges unless the Act and its Enforcement Decree, which are in force at the time of the execution of the project in this case, does not explicitly stipulate a project subject to development charges (see Supreme Court Decision 93Nu10521, Oct. 8, 193). Therefore, the disposition of this case is illegal as it is subject to the imposition of development charges or is serious.

However, according to the above evidence, it can be recognized that there has been an increase in land prices in excess of normal increase in land prices in the above land, and Article 3 (1) of the above Act provides that "the State shall collect development charges as prescribed by this Act." Even though the plaintiff is merely a tenant of the above land, it can be found that the facts and statutes can be accurately examined and interpreted as to whether there is development gains to be reverted to the plaintiff due to the execution of the above land more than the developer, and it is reasonable to see that there is room for dispute over the interpretation of the above Acts and subordinate statutes (Article 5 (1) 9 of the above Act does not include "golf course construction business" and "business similar to subparagraphs 1 through 10" in subparagraph 11 of the above Article 4 of the Enforcement Decree and attached Table 1 [Attachment 2] of the above Enforcement Decree of the Installation and Utilization of Sports Facilities Act, and it is not clear that the above construction project is not subject to imposition of construction charges under Article 9 (1) 1 to 9 of the above Act.

3. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the disposition of this case is null and void as a matter of course is dismissed without any further review.

Judges Park Chang-chul(Presiding Judge)