A. Purport of Article 9(3)2 of the former Restitution of Development Gains Act, and whether Article 8(2) of the Enforcement Decree of the same Act becomes invalid

(b) Whether the sale price of the apartment house falls under the case where the disposal price is determined with the approval of the head of Gun, and whether the disposal price is restricted under the related Acts and subordinate statutes, and the legal nature of Article 9 (3) 1 of the Enforcement Decree of the same Act; and

(c) Legal nature of Article 4 of the Enforcement Rule of the same Act and the final time to prove purchase prices;

(d) Scope of land purchase prices as items to be deducted in calculating development gains;

A. Article 9 (3) 2 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993) provides that "sale" shall be construed as one of the exceptional causes at the time of completion of development as stipulated in the same Act, and Article 8 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13718 of Aug. 25, 1992) provides that the sale price is already determined at the time of sale of apartment and commercial buildings constructed by the operator of an apartment building construction project at the time of the completion of development, and if the apartment and commercial buildings are sold in lots, the apartment and commercial buildings can not be sold at any time from the time of sale, and the site price of the apartment and commercial buildings shall not be at any time be at any time, so the project operator who has completed the sale in lots shall not occupy a profit due to the increase in the price of the apartment and commercial buildings, taking into account that the development gains anticipated in the same Act shall not be acquired.

B. In light of Article 10(1) and (2) of the same Act (amended by Act No. 4563 of Jun. 11, 1993), Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994), and Articles 8 and 9 of the former Rules on Housing Supply (amended by the Ordinance No. 537 of Sep. 1, 1993), if the sale price of apartment houses is determined with the approval of the head of Si/Gun under Articles 8 and 9 of the same Rules, the sale price of apartment houses shall be deemed to be the case where the disposal price is restricted by the provisions of the relevant Acts and subordinate statutes under Article 10(2) of the former Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), and Article 9(3)1 of the same Enforcement Decree (amended by Presidential Decree No. 13956 of Aug. 1

C. Article 4 of the Enforcement Rule of the same Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 495 of Nov. 29, 1991) is a procedural provision prepared to promote the administrative convenience for the prompt and accurate imposition and collection of development charges, and it does not have the nature of simple administrative rules. Therefore, since the development project operator reported the purchase price after the lapse of the period stipulated in the same rules, it shall not be deemed that the purchase price cannot be calculated by applying the purchase price at the time of the development project commencement of the land subject to the imposition of the development charges by applying the purchase price at the time of the development project completion of the land subject to the imposition

D. The development charges system is a system to realize economic justice and prevent speculation in land, thereby promoting the efficient use of land, in calculating the development gains, which are the premise for calculating the development charges to be imposed on the development project operator, in cases where the land price of the land to be developed increases as a result of the implementation of the development project by the project operator, and where there occurs an unincomeing development gains in excess of increases in normal land prices due to the increase in land prices of the land to be developed, it is reasonable to deem that the development gains, which are the premise for calculating the development charges to be imposed on the development project operator, are to be calculated so as to be close to the actual reality, and that the land purchase price as

A. Article 9(3)2 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993); Article 8(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13718 of Aug. 25, 1992); Article 10(2) of the same Act (amended by Act No. 4563 of Jun. 11, 1993); Article 9(3)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993); Article 32 of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994); Article 8 of the former Rules on Housing Supply (amended by the Ordinance of the Ministry of Construction and Transportation No. 537 of Sep. 1, 193); Article 9 of the Restitution of Development Gains Act (amended by Act No. 136394 of the former Enforcement Rule of the Restitution of Development Gains Act)

A. Supreme Court en banc Decision 92Nu12841 delivered on May 11, 1993 (Gong1993Ha, 1723). Supreme Court Decision 93Nu1096 delivered on October 8, 1993 (Gong1993Ha, 3090) 92Nu1974 delivered on April 26, 1994 (Gong1994Sang, 1504). Supreme Court en banc Decision 92Nu13677 delivered on May 11, 1993 (Gong193Ha, 1726)

Samdo General Construction Corporation, Attorneys Kim Jong-soo et al., Counsel for the defendant-appellant

Young-gun

Daegu High Court Decision 92Gu634 delivered on November 17, 1993

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

The defendant's grounds of appeal are examined.

1. As to the completion time of the development project

According to Article 9(3)2 of the Restitution of Development Gains Act (amended by Act No. 4434, Dec. 14, 1991; hereafter referred to as the "Act") Article 9(3)2 of the same Act, the time of completion of a development project shall, in principle, be the date the completion of the development project is obtained, but the time shall be the time of completion of the development project if the project implementer disposes of the apartment or commercial building to others, such as sale. Article 9(3)2 of the Act provides that the sale price is already determined at the time of the sale of the apartment or commercial building constructed by the implementer of the apartment construction project, and if the apartment or commercial building is sold in lots, the apartment or commercial building site price at the time of the sale cannot be arbitrarily disposed of from that time, so the development gains anticipated in the above Act cannot be derived from the increase in the price of the apartment or commercial building site at the time of completion of the development project, and it shall be interpreted as one of the exceptional reasons for the completion of the development project at the time of the sale, and shall be construed as invalid (see Article 19(2) of the Enforcement Decree of the Restitution of Development Gains Act.

In this purport, the court below is just in holding that since the sale of multi-family housing was completed on October 25, 1990 prior to the completion inspection with respect to the site of multi-family housing among the land in this case, it shall be viewed as the time of completion of the development project, and there is no error of law such as the theory of lawsuit in the judgment below. There is

2. On the land value at the time of completion of development projects:

According to Article 10 (1) and (2) of the Act, in principle, the value of the land subject to imposition at the time of completion of a development project shall be calculated on the basis of the officially announced value of the land. However, in cases where the disposal price is restricted pursuant to the relevant Acts and subordinate statutes, the disposal price may be the value of the land subject to imposition at the time of completion of a development project, as prescribed by the Presidential Decree. According to Article 32 of the Housing Construction Promotion Act (amended by Act No. 4381 of May 31, 1991), the project undertaker shall construct and supply the housing in accordance with the terms, conditions, methods and procedures of housing supply as determined by the Minister of Construction and Transportation in order to maintain the housing supply order. Accordingly, the provisions of Articles 8 and 9 of the Housing Supply Regulations (amended by the Ordinance No. 489 of Aug. 1, 191), which stipulate that the sale price of the housing shall be determined by the Presidential Decree No. 1960, Mar. 1, 1997.

The judgment of the court below to the same purport is just and there is no error of law as the theory of lawsuit in the judgment below.

3. Land value at the time of development project commencement:

A. Article 9(5) of the Decree is null and void because there is no ground for delegation by the mother law, and Article 4 of the Enforcement Rule of the Restitution of Development Gains Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 495 of Nov. 29, 191, referred to as the "Rules" hereafter referred to as the "Rules") is a procedural provision prepared to promote administrative convenience for the prompt and accurate imposition and collection of development charges, and it is nothing more than that of a simple administrative rule. Therefore, since the development project operator reported the purchase price after the lapse of the period stipulated in the "Rules", it shall not be deemed that the purchase price cannot be calculated by applying the purchase price at the time of the development project commencement of the land subject to the development charges, and the verification of the purchase price shall be deemed that it can be done until the closing of the trial at the court below in which the dispute over the imposition of development charges is raised (see, e.g., Supreme Court en banc Decision 92Nu13677 of May 11, 1993).

B. The development charges system is a system to realize economic justice and prevent speculation in land, thereby promoting the efficient use of land, in cases where a project operator partly recovers development gains in excess of normal increase in land prices due to the increase in land prices of the land to be developed as a result of the implementation of the development project by the project operator. Therefore, in calculating the development gains, which are the premise for calculating the development charges to be imposed on the development project operator, the development gains that the person subject to imposition should actually obtain should be calculated so as to be close to the actual situation. Thus, in calculating the development gains to be imposed on the development project operator, it is reasonable to view that the land purchase price as an item to be deducted includes all the amount paid by the development project operator to the seller to acquire the land (see Supreme Court Decision 93Nu8726, Nov. 23,

According to the records, the court below is just in considering the actual purchase price of the land purchased by the plaintiff from the non-party as the land price at the time of development project commencement of the land subject to imposition, and there is no error of law such as theory of lawsuit in the judgment below. There is no reason

4. As to development costs:

According to relevant evidence and records, the judgment of the court below as to the point of view of the theory of lawsuit is just, and there is no error in the misapprehension of facts against the rules of evidence, such as the theory of lawsuit. There is no reason for the conclusion.

5. 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 Kim Yong-sik (Presiding Justice)