Whether land designated as a market site which is an urban planning facility falls under a housing site subject to the imposition of excess ownership charges under the former part of Article 20 (1) 3 of the Act on Ownership of Housing Sites.

According to Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17(1) of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Quality and Quality of Land (amended by the Ordinance of the Ministry of Construction and Transportation No. 517 of Nov. 19, 192), the head of a Si/Gun is prohibited from permitting the construction of buildings, not urban planning facilities, on the land determined to be the place of urban planning facilities under the same Act. According to Article 2(1)3 and 1(b) of the same Act, the Mayor and the head of a Gun is listed as one of urban planning facilities, and the market is listed as one of urban planning facilities, so the construction of houses, not a market building, shall be prohibited unless the decision of urban planning facilities is revoked or changed, the land designated as a market site of urban planning facilities shall be deemed as falling under the “housing site prohibited by the construction of houses pursuant to the related Acts and subordinate statutes” under Article 20(1)3 of the Act.

Article 20(1)3 of the Act on the Ownership of Housing Sites, Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

[Judgment of the court below]

The head of Gangnam-gu Seoul Metropolitan Government

Seoul High Court Decision 93Gu6951 delivered on February 2, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17(1), etc. of the Regulations on Criteria for Permission for Change, etc. of Land Quality and Quality of Land (amended by the Ordinance of the Ministry of Construction and Transportation No. 517 of Nov. 19, 192), the head of a Si/Gun is prohibited from permitting the construction of buildings which are not urban planning facilities in the land determined as the place of urban planning facilities under the Urban Planning Act, and Article 2(1)3 and 1(b) of the Urban Planning Act are listed as one of urban planning facilities. Thus, with respect to the land designated as a market site which is urban planning facilities and supplied, housing construction other than a market building shall be prohibited unless the decision of urban planning facilities is revoked or modified (see, e.g., Supreme Court Decisions 92Nu18924, Sept. 28, 193; 94Nu1678, May 10, 1994).

Meanwhile, Article 9-2 of the Enforcement Rule of the Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 527 of Jun. 12, 1993) provides that the grounds for excluding the land for market use under subparagraph 1 shall be stipulated as the grounds for excluding the imposition of charges. However, Article 9-2 of the Enforcement Rule does not supplement the grounds for excluding the imposition of charges under the former part of Article 20 (1) 3 of the Act, but Article 20 (1) 3 of the Act and Article 20 (1) 8 of the Enforcement Decree of the Act (amended by the Presidential Decree No. 1382 of May 10, 1993) are provisions supplementing the housing site subject to imposition of charges under Article 26 (1) 10 of the Act, so it is clear by the body of the law that there is such provision, and it is no room to interpret that the land subject to imposition of charges under the former part of Article 20 (1) 3 of the Act is subject to imposition again on the land for market use.

Therefore, the appeal of this case is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)