Whether land which is not allowed to be constructed pursuant to Article 27 (1) of the Building Act falls under Article 78-3 (1) 1 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Home Affairs No. 452 of December 31, 1986)

Land for which construction is not allowed pursuant to Article 27 (1) of the Building Act shall be land prohibited from being constructed pursuant to the provisions of Acts and subordinate statutes under subparagraph 1 of Article 78-3 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Home Affairs No. 452 of December 31, 1986).

Article 27(1) of the Building Act, Article 78-3 subparag. 1 of the former Enforcement Rule of the Local Tax Act (amended by Ordinance of the Ministry of Home Affairs No. 452 of Dec. 31, 1986)

Supreme Court Decision 80Nu221 Decided August 12, 1980

[Judgment of the court below]

Attorney Kim Jong-soo, Counsel for the defendant-appellant of Busan Special Metropolitan City

Daegu High Court Decision 84Gu162 delivered on April 10, 1985

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The Plaintiff’s attorney’s ground of appeal is examined.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that the land in this case was a miscellaneous land left abandoned without any ground settlement at the beginning date of each tax payment in 1982 and 1983, and the passage between the public road and the public road was not established, and the part adjacent to the road which was entirely surrounded by all other land was not in dispute between the parties. Although the plaintiff did not use the land in this case because there was no land leading to the public road, even if the plaintiff did not use the land in this case due to the lack of land leading to the public road, it did not have any attempt for opening the passage by exercising the above summary right to passage, so long as the plaintiff did not exercise the above right to passage, it did not constitute "land which could not be used due to any cause not attributable to the land owner".

2. However, according to Article 78-3 subparagraph 1 of the Enforcement Rule of the above, "land, the use of which is prohibited pursuant to the provisions of the Act and subordinate statutes, is excluded from the imposition of a vacant land, and according to Article 27 (1) of the Building Act, "the site of a building shall adjoin to a road at least two meters," so a building permit shall not be granted for a blind land with no passage leading to a meritorious road as in this case. Thus, land for which construction is not allowed pursuant to Article 27 (1) of the above Building Act shall not constitute land, the construction of which is prohibited pursuant to the provisions of the Act and subordinate statutes under subparagraph 1 of Article 78-3 of the above Enforcement Rule (see Supreme Court Decision 80Nu21, Aug. 12, 1980). Meanwhile, according to the records, the court below rejected the plaintiff's claim on the ground that the land in this case was indirectly excluded from the imposition of a vacant land or that it does not fall under Article 78-3 subparagraph 1 of the above Enforcement Rule.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Choi Jae-ho (Presiding Justice)