[1] In a case where the workplace housing association implements a project to create an apartment site in order to construct a private-owned apartment, whether the entity who obtains development gains through the project (i.e., workplace housing association) and the housing association's sale price in lots to its members constitutes "where the disposal price is restricted by the relevant laws and regulations" under Article 10 (2) of the former Restitution of Development Gains Act (negative)

[2] In a case where the original disposition imposing development charges is imposed and notified again after the cancellation of the judgment, whether it should be deemed a new disposition imposing development charges (affirmative)

[3] Whether the interruption of prescription by a notice of payment is invalidated if the disposition of payment is revoked (negative)

[1] If the workplace housing association implements a project for creating apartment sites in order to construct private-owned apartment houses under Article 33 of the Housing Construction Promotion Act, the person who obtains the development gains through the project is the housing association that is the project operator, and the housing association's sale price of apartment units to its members does not constitute the case where the disposal price is restricted by the related laws under Article 10 (2) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993).

[2] If the original disposition imposing development charges is imposed and notified again after the judgment was revoked, it shall be deemed a new disposition imposing development charges.

[3] Article 98 of the Budget and Accounts Act provides that a notice of payment under Article 98 of the Budget and Accounts Act shall be interrupted, and the interruption of the prescription by such notice of payment shall not be invalidated even if the disposition of payment

[1] Articles 3 subparag. 9 and 33 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992); Articles 2 subparag. 1, 5(1), 6(1), and 10(2) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) / [2] Articles 14 and 15 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), Articles 1 [general administrative disposition] and 30 of the Administrative Litigation Act / [3] Articles 14, 15, and 198 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993)

[1] Supreme Court en banc Decision 95Da26476 delivered on April 23, 1998 (Gong1994Ha, 2241 delivered on July 29, 1994) (Gong1998Sang, 1329) / [2] Supreme Court Decision 91Nu5242 delivered on May 26, 1992 (Gong1992, 2040), Supreme Court Decision 91Nu10275 delivered on November 24, 1992 (Gong1993, 289), Supreme Court Decision 96Nu13057 delivered on February 11, 1997 (Gong197, 780, 1989) 90Nu97989 delivered on July 29, 198 (Gong1997, 199)

Hyundai Heavy Equipment workplace Stock Company (Attorney Kim Ba-young, Counsel for defendant-appellant)

Ulsan Metropolitan City Head of Dong-gu (Attorney Ha Man-young, Counsel for the defendant-appellant)

Busan High Court Decision 98Nu2560 delivered on November 12, 1998

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

The grounds of appeal are examined.

Concerning Class 1, 2, and 3

The lower court rejected the Plaintiff’s claim on the ground that the Plaintiff, as the workplace housing association, recognized the fact that the Plaintiff was implementing the apartment site creation project in order to build a private-owned apartment building under Article 33 of the Housing Construction Promotion Act, and that the Plaintiff’s housing association’s price for selling apartment units to its members is not the Plaintiff and its members, but the Plaintiff’s housing association’s price for selling the apartment units to its members pursuant to the relevant laws and regulations under Article 10(2) of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993, hereinafter referred to as the “Act”).

In light of the relevant laws and regulations, the above determination by the court below is justified and there is no error of law by misapprehending the legal principles on the assessment of land price at the time of completion of development project, and Article 10 (2) of the Act or Article 9 (3) of the Enforcement Decree of the Act violates the Constitution, such as the principle of prohibition of comprehensive delegation and the principle of guaranteeing property rights.

All of the grounds of appeal on this point are rejected.

Concerning No. 4

The court below rejected the judgment of revocation on November 1, 1993, on the ground that the Defendant first issued a notice of imposition of KRW 1,232,237,590 to the Plaintiff on July 10, 1991, but the Central Land Expropriation Committee erroneously calculated the land price at the time of development commencement, thereby imposing and notifying KRW 309,551,220 again on October 12, 1995; and that there was an error of law in the imposition of KRW 309,51,220 as to the point of development completion at the time of the first imposition of KRW 309,51,220 upon the Plaintiff’s filing of the suit; thus, the Defendant issued a new notice of imposition on the Plaintiff on March 10, 1992, and issued a new notice of imposition of KRW 309,51,220 on the Plaintiff on March 13, 199, and issued a new notice of imposition of KRW 309,298,19.

However, since the original imposition disposition is deemed a new imposition disposition after the cancellation of the original imposition disposition, the lower court did not regard the payment notice as an independent imposition disposition on February 13, 1998, and instead deemed a simple demand for payment. However, it is erroneous for the lower court to deem the same as a mere demand for payment without regard it as an independent imposition disposition on February 13, 1998. However, the interruption of the extinctive prescription under Article 98 of the Budget and Accounts Act provides for the cause of interruption of the prescription period, and the effect of the interruption of the prescription period based on the payment notice is not lost even if the revocation of the imposition disposition based on the payment notice (see Supreme Court Decision 98Du6982, Apr. 9, 199), and it is apparent that the prescription period for the imposition of the instant development charge was suspended by the first payment notice on November 1, 1993, and it was within the lawful imposition period

Therefore, the conclusion that the court below rejected the Plaintiff’s assertion that the instant disposition was unlawful after the statute of limitations expired.

We cannot accept the allegation in the grounds of appeal on this point.

Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)