Seo-gu Co., Ltd. (Law Firm Barun, Attorneys Yu Jong-Un et al., Counsel for the defendant-appellant)

Daegu Metropolitan City Mayor (Attorney Kim In-tae, Counsel for the plaintiff-appellant)

August 19, 2016

Daegu District Court Decision 2015Guhap23276 Decided January 19, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of KRW 929,849,00 against the Plaintiff on June 2, 2015 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Minister of Land, Transport and Maritime Affairs (amended by Act No. 11690, Mar. 23, 2013; the Government Organization Act was changed to “the Ministry of Land, Infrastructure and Transport”; hereinafter “the Minister of Land, Infrastructure and Transport”) on November 21, 2008, the Minister of Land, Transport and Maritime Affairs designated and publicly announced as “the district subject to the National Rental Housing Complex of Daegu Daegu Metropolitan City, as the district subject to the alteration of the district plan, and the name of the Daegu Metropolitan City, which was designated as the District subject to the alteration of the said district plan, and the name of the Daegu Metropolitan City, as the District subject to the alteration of the said district plan and the alteration of the said district plan on December 11, 2012, the Minister changed to the said district subject to the alteration of the said district plan and the name of the said district subject to the alteration of the said district subject to the alteration of the said district plan and the name of the said housing district subject to the alteration of the said housing zone.”

B. On May 27, 2014, the Korea Land and Housing Corporation sold to the Plaintiff KRW 62,657,640,000 of C1 block (large-dong 4-1) and KRW 50,212 square meters (hereinafter “instant site”) among the housing sites in the instant Bogeumjari Housing District in order to prepare project costs.

C. On May 19, 2015, pursuant to Article 16 of the Housing Act, the Plaintiff obtained approval from the Defendant for a housing construction project with the content of constructing and supplying 12 units of underground floors, 12 units of apartment buildings of 14-20 stories of ground, 849 stories of 74 square meters (16 units of 116 square meters of 74 square meters of ground, 84 square meters of 14 square meters of 84 square meters, 9 square meters of 34 households, 101 square meters of 101 square meters of incidental and welfare facilities (hereinafter “instant housing construction project”).

D. On June 2, 2015, the Defendant imposed KRW 929,849,00 on the instant housing construction project pursuant to Articles 11(1)4 and 11-4(1) of the Special Act on the Management of Intercity Transport in Metropolitan Areas (hereinafter “Wide Transport Act”) on the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, each entry in Gap evidence 1 to 4 (including provisional number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Bogeumjari Housing District development project falls under a housing site development project under Article 11(1)1 of the Intercity Transport Act or a housing site development project under subparagraph 3 of Article 11-2(1)1 of the Intercity Transport Act, and thus, is the project determined to be subject to the charges for metropolitan transport facilities under Article 11-2(1)1 of the Intercity Transport Act and the payment obligor is the Korea Land and Housing Corporation, which is the project operator. The Plaintiff’s housing construction project is implemented within the Bogeumjari Housing District and is a housing construction project under Article 11(1)4 of the Intercity Transport Act, and thus, should be excluded from the imposition of charges

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the instant Bogeumjari Housing District development project is subject to charges for metropolitan transportation facilities

A) Article 11(1) of the Intercity Transport Act provides that “A person who implements any of the following projects in a metropolitan area for which an implementation plan for intercity transport has been formulated and publicly announced shall pay charges for intercity transport facilities for the construction and improvement of intercity transport facilities, etc.” (Article 11(1) of the said Act provides that housing site development projects under the Housing Site Development Promotion Act (Article 1), housing site development projects, etc. under the Housing Act (Article 3), housing construction projects under the Housing Act (Article 4) etc.

The imposition of charges, such as the charges for metropolitan transportation facilities, is an infinite administrative act, and the legal provisions that serve as the basis for the imposition thereof should be strictly interpreted in accordance with the language and text of the tax laws and regulations, and it is not allowed to detect the defects of the law by analogical interpretation or to expand the administrative convenience. However, since the legal provisions have generality and abstractness, their meaning can be embodied and clarified through the interpretation as a supplementary action of the judge. Therefore, the provision on the imposition of charges shall also be interpreted in light of the legislative purport, overall system, contents, etc. of the relevant Acts and subordinate statutes.

B) In full view of the following circumstances revealed by the purport of the entire text of the relevant Acts and subordinate statutes and pleadings, it is reasonable to view that the instant Bogeumjari Housing District development project under the former Special Act on the Construction, etc. of Bogeumjari Housing (wholly amended by the Special Act on the Construction, etc. of Public Housing (wholly amended on January 14, 2014; hereinafter “former Bogeumjari Housing Act”) is also included in the project subject to the imposition of metropolitan transport facility charges under the Metropolitan Transport Act.

(1) The metropolitan transport facility charges system aims to alleviate traffic congestion by securing financial resources required for the construction and improvement of metropolitan transport facilities by bearing part of the transport facility installation costs incurred by a person who implements a project larger than a certain scale which generates traffic demand in order to solve traffic problems in metropolitan areas on a wide-scale basis (Articles 1, 2, and 11 of the Intercity Transport Act). Since the former Bogeumjari Housing Act plans large-scale housing development and housing complex construction, etc. for the purpose of contributing to the pleasant residential life of the people by promoting the residential stability and housing standards of low-income groups and by promoting the purchase of houses by homeless persons (Articles 1 and 2 of the former Bogeumjari Housing Act). Thus, in the process of implementing the Bogeumjari Housing Project under the former Bogeumjari Housing Act, traffic demand and the need for securing metropolitan transport facilities resulting therefrom are equally generated.

(2) According to Articles 18(1)28 and 35(4)21 of the former Bogeumjari Act, when a project implementer of a Bogeumjari housing project formulates a Bogeumjari housing district plan and obtains approval from the Minister of Land, Infrastructure and Transport, the project is deemed to have obtained permission for an act under Article 6 of the Housing Site Development Promotion Act and approval for a project plan under Article 16 of the Housing Act. The Minister of Land, Infrastructure and Transport shall consult with the head of the relevant administrative agency prior to approval of a district plan or a project plan if the matters for which authorization and permission are deemed to have been granted are included pursuant to Articles 18(2) and 35(6) of the former Bogeumjari Housing Act. Ultimately, in order to implement a Bogeumjari housing project under the former Bogeumjari Housing Act, the development project under each subparagraph of Article 11(1) of the Housing Site Development Promotion Act, the Housing Act, etc. and the substance of a Bogeumjari housing project implemented under the former Bogeumjari Housing Act are different.

In fact, Article 11 (1) 4 of the Intercity Transport Act provides that a housing construction project under the Housing Act shall be included in the subject of the charges for intercity transport facilities where a consultation is deemed to have been held under other Acts and subordinate statutes.

(3) Article 30 Subparag. 3 of the former Bogeumjari Housing Act provides that “The charges for metropolitan transportation facilities under Article 11 of the Intercity Transport Act imposed on a Bogeumjari Housing Project may be reduced or exempted, or may not be imposed, in accordance with the relevant Act and subordinate statutes.” In principle, it may be deemed that the said Bogeumjari Housing Project is subject to the imposition of the charges for metropolitan transportation facilities under the Intercity Transport Act.

(4) Article 32(1) of the former Bogeumjari Housing Act applies the Housing Site Development Promotion Act to matters not prescribed by the said Act concerning the creation and supply of land created in a housing zone, and Article 40 of the said Act provides that matters not prescribed by the said Act concerning the construction, supply, and management of Bogeumjari Housing shall be applied to the Housing Act. The former Bogeumjari Housing Act essentially has roots in the Housing Site Development Promotion Act or the Housing Act. However, it is reasonable to deem that the former Bogeumjari Housing Act constitutes a special Act that provides systems or procedures that conform to the legislative intent of the housing stability of ordinary people and the smooth supply

2) Whether the instant housing construction project is subject to charges for metropolitan transport facilities

On May 19, 2015, the Plaintiff obtained approval from the Defendant for a housing construction project with the content of constructing an apartment of 12-dong, 849 apartment units with 2 underground floors, 14-20 apartment units with 14-20 floors above ground (54 households with the number of households exceeding national housing size (85m2) among them) and ancillary and welfare facilities pursuant to Article 16 of the Housing Act, as seen earlier. As such, the instant housing construction project is subject to the charges for metropolitan transport facilities under Article 11(1)4 of the Intercity Transport Act.

3) Whether the charges for intercity transport facilities should be exempted for the instant housing construction project

A) Article 11-2(1)1 of the Intercity Transport Act provides that “No charges shall be imposed on the projects referred to in subparagraphs 1 through 4, 6, and 7 of the same paragraph, which are implemented in the district, zone, or project area of the project that falls under any of subparagraphs 1 through 3 of Article 11(1) and are determined to be subject to the charges.” As seen earlier, this case’s housing construction project implemented within the Bogeumjari Housing Zone is included in the projects subject to the imposition of metropolitan transport facility charges under the Intercity Transport Act. As such, the instant housing construction project, which is implemented within the Bogeumjari Housing Zone, falls under the subject of metropolitan facility charges under Article 11(1)4 of the Intercity Transport Act, shall be exempted pursuant to Article 11-2(1)1 of the Intercity Transport Act.

B) On this issue, the Defendant asserts that Article 11-2(1)1 of the Intercity Transport Act does not apply to all projects as provided for in Article 11(1)1 through 3 of the same Act, but to the projects implemented within the zone, zone, or project area of the "project determined to be subject to charges" by the Defendant among the projects falling under any of the above subparagraphs. In this case, the Defendant did not decide to impose the charges for intercity transport facilities on the Korea Land and Housing Corporation. Therefore, the Plaintiff’s housing construction project cannot be deemed as a housing construction project implemented within the zone of the project determined to be subject to the charges for intercity transport facilities under Article 11-2(1)1 of the Intercity Transport Act.

(3) As seen earlier, Article 11 (1) of the Intercity Transport Act provides that, in principle, a person who carries out any of the following projects shall pay charges for intercity transport facilities, and Article 11 (1) 4 of the Act provides that, “it shall exclude a housing construction project under the Housing Act: Provided, That the same shall not apply where a project falling under subparagraphs 1 through 3 is carried out within a district, zone, or project area in which the housing site development project is carried out under the Housing Act, even if the housing site development project is carried out within a district, zone, or project area in which the housing site development project is carried out, the administrative agency shall be exempted from the imposition of charges for intercity transport facilities, and Article 11 (1) 1 through 4 of the Act provides that, if the project falls under Article 11-2 (1) 1 of the Act and the provisions governing the imposition of charges for intercity transport facilities are excluded from the imposition of charges, the administrative agency shall be exempted from the imposition of charges for intercity transport facilities under the Act on February 222, 2013.

As seen earlier, the Bogeumjari Housing Zone development project of this case is included in the project that is subject to the metropolitan transport facility charges under the Intercity Transport Act, and such project may be deemed as a project that is subject to the imposition of charges under the said Act. Therefore, even if the Defendant did not decide to impose the charges for metropolitan transport facilities according to the Bogeumjari Housing Zone development project of this case on the Korea Land and Housing Corporation, Article 30 Subparag. 3 of the former Bogeumjari Housing Act provides that the charges for metropolitan transport facilities may be reduced or exempted as prescribed by the relevant Acts and subordinate statutes, and it is difficult to find any provision that the charges for metropolitan transport facilities may be reduced or exempted or not imposed on the project for the development of the Bogeumjari Housing Zone of this case, even after examining the relevant Acts and subordinate statutes, including the Intercity Transport Act, even if the Defendant actually decided not to impose the charges for metropolitan transport facilities on the project for the development of the Bogeumjari Housing Zone of this case, the Korea Land and Housing Corporation, which is the project implementer, is still liable to pay the charges for metropolitan transport facilities charges. Accordingly, the Plaintiff’s housing construction project of this case cannot be accepted.

4) Sub-committee

Therefore, the instant disposition that the Defendant imposed metropolitan transport facility charges for the instant housing construction project on the Plaintiff that should be exempted from metropolitan transport facility charges is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be unfair on the grounds of its conclusion, so the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be revoked, and it is so decided as per Disposition by the defendant.

[Attachment]

Forced mobilization of judge scopic (Presiding Judge)