Urban Environment Improvement Association in Zone 1-1 (Attorney Kim Young-hun, Counsel for the plaintiff-appellant)

The head of Jung-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for defendant-appellant)

may 2, 2007

Seoul Administrative Court Decision 2006Guhap9634 decided August 18, 2006

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 527,849,00 against the Plaintiff on December 23, 2005 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning the instant case is as follows: (a) the first instance court's reasoning is as follows: (b) the "Special Act on the Management of Intercity Transport in Large Cities" (hereinafter "Special Act") is the "former Special Act on the Management of Intercity Transport in Large Cities (amended by Act No. 8251, Jan. 19, 2007; hereinafter the "Special Act"); (b) the "former Special Act on the Management of Intercity Transport in Large Cities" is the "former Special Act on the Management of Intercity Transport in Large Cities (amended by Act No. 8251, Jan. 19, 2007; hereinafter the "Special Act on the Management of Intercity Transport in Large Cities") and the first instance's reasoning is as stated in the column for the judgment of the first instance except for the following cases, Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

A. The plaintiff's assertion

(1) Mainly

First, since metropolitan transport facility charges are similar to taxes in that they are financial payment obligations under public law, they are similar to those under public law. Therefore, in light of the constitutional request for protecting people's property rights and the principle of rule of law, the imposition disposition of this case, like the disposition of imposition of taxes, requires strict interpretation of the relevant provisions. Article 11 subparagraph 6 of the Special Act stipulates that the imposition of metropolitan transport facility charges shall be delegated to the Enforcement Decree without specifying the specific scope on the subject of the imposition of the charges of imposition of the charges of the metropolitan transport facility charges, Article 38, 59 of the Constitution providing for the principle of no taxation without the law, Article 75 of the Constitution providing for the limit of delegated legislation, or Article 4 of the Framework Act on the Management of Charges of a superior corporation, Article 32 subparagraph 1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter "Do Government Act"), it does not constitute an invalid provision in violation of the Act on the Establishment and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter "Do Government Act").

(2) Preliminary

Even if the instant project falls under the subject of the charges for metropolitan transport facilities, since the instant project is similar to a housing redevelopment project under the Do Government Act prescribed by Article 11-2(2)2 of the Special Act or a housing reconstruction project under the Do Government Act prescribed by subparagraph 3, Article 11-2(2)2 or 3 of the Special Act by applying mutatis mutandis Article 11-2(2)2 or 3 of the Special Act, the charges for metropolitan transport facilities should be reduced once more pursuant to Article 11-2(2)4 of the Special Act.

C. Determination

(1) As to the main argument

(A) First, as to whether the provision of Article 11 subparagraph 6 of the Special Act violates the provisions of Articles 38, 59, and 75 of the Constitution or violates the provisions of Article 4 of the Framework Act on the Management of Charges, or is invalid, the delegation order can be determined individually by the specific scope in the law or upper level order. Here, since the specific scope of delegation varies depending on the type and nature of the object to be regulated, it cannot be determined uniformly. However, at least, as the contents and scope to be specified in the delegation order are specified in detail, it is necessary to predict the outline of the contents to be stipulated in the delegation order from the pertinent law or upper level order. In this case, the existence of predictability should not be determined with only the delegation provision, but with the overall structure, purpose, and purpose of the delegation provision, the form and content of the delegation provision, and the relevant laws and regulations comprehensively and systematically, depending on each specific and individual nature of the object to be regulated (see Supreme Court Decision 2006Du325, Feb. 23, 2006).

However, the purpose of the metropolitan transport facility charges is to secure financial resources required for the construction and improvement of metropolitan transport facilities to alleviate traffic congestion in metropolitan areas by bearing a part of the cost of transport facility installation in preparation for a rapid increase in the number of causes caused by the housing construction projects in metropolitan areas. Article 11 of the Special Act provides, among metropolitan areas, that the person who implements the projects provided for in subparagraphs 1 through 5, such as housing site development projects under the Housing Site Development Promotion Act, shall pay the charges for metropolitan transport facilities in the metropolitan areas as prescribed by the Presidential Decree. However, Article 15 (2) of the Enforcement Decree of the Special Act provides that the subject of imposition of charges for metropolitan transport facilities shall be limited to the projects similar to those under subparagraphs 1 through 5 under subparagraph 6, and Article 15 (1) of the Housing Act provides that "any projects provided for in subparagraph 6 of the same Act shall be excluded from the area subject to the imposition of charges under the previous provisions of Article 8 of the Building Act, and any projects provided for in the provisions of Article 15 (2) of the Housing Act shall be excluded from the area subject to be established under the Special Act.

(B) Next, even if an authorization for the implementation of an urban environment improvement project is deemed to have been obtained without obtaining any separate building permit under Article 16 (1) of the Building Act, it shall be examined as to whether the charges for metropolitan traffic facilities are subject to imposition, and pursuant to Article 11 (6) of the Enforcement Decree of the Special Act, the term “project which constructs not less than 20 households of housing and not less than 20 households as the same building” in Article 15 (2) of the Enforcement Decree of the Building Act shall be deemed as the project subject to the imposition of charges for metropolitan traffic facilities, and the fact that the Plaintiff’s building is one building composed of not less than 156 households of apartment houses (including apartment houses, officetels, and cultural and assembly facilities) after obtaining authorization for the implementation of an urban environment improvement project, it shall not be deemed that there is an application for authorization for the implementation of an urban environment improvement project, which shall be deemed to have been filed separately by the competent administrative agency for the implementation of the construction permit, but it shall not be deemed that there is an application for authorization for the urban environment improvement project, which shall be an application for the amendment of the Building permit.

(C) Therefore, the plaintiff's primary argument is without merit.

(2) As to the conjunctive assertion

Article 11-2 (2) of the Special Act provides that the project that reduces 50/100 of the charges for metropolitan transport facility shall fall under the housing redevelopment project under the Do Government Act under subparagraph 2, the housing reconstruction project under the Do Government Act under subparagraph 3, the housing reconstruction project under the Do Government Act under subparagraph 4, and the housing reconstruction project and the housing reconstruction project under the Do Government Act implemented within the urban planning zone under the Urban Planning Act under subparagraph 4 shall be applied in duplicate. Thus, the interpretation of the above provision provides that the charges for metropolitan transport facility may be reduced in duplicate in the case of the housing redevelopment project and the housing reconstruction project under the Do Government Act implemented within the urban planning zone under the Urban Planning Act. However, since it is apparent that the project in this case falls under the housing redevelopment project under the Do Government Act (Article 2 subparagraph 2 (b) of the Do Government Act) or the housing reconstruction project (Article 2 subparagraph 2 (c) of the Do Government Act), it cannot be asserted that Article 2 (1) 2 (d) or 3) of the Special Act shall not be applied in duplicately to the Plaintiff's.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, and thus it is revoked by the defendant's appeal and dismissed, and it is so decided as per Disposition.

Judges Kim Jong-sik (Presiding Judge)