Plaintiff (Law Firm Effunwon, Attorneys Stabilization-hwan, Counsel for plaintiff-appellant)

The head of Suwon-si Office

September 21, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing enforcement fines of KRW 44,562,00 against the Plaintiff on June 3, 2011 is revoked.

1. Details of the disposition;

A. On November 12, 2007, the Plaintiff obtained permission from the Defendant for a land transaction contract for the purpose of newly building and selling a detached house from the Defendant to the land located in Suwon-si ( Address 2 omitted), (number 2 omitted), (number 3 omitted), and (number 4 omitted) (hereinafter “each land of this case”). On May 9, 2008, the Plaintiff completed the registration of ownership transfer for each land of this case in the future of the Plaintiff.

B. On August 24, 2009, the Defendant ordered the Plaintiff to use each of the instant land for the permitted purpose on the grounds that the Plaintiff did not use each of the instant land for the permitted purpose. The Plaintiff requested extension of the implementation period for the implementation of the said land until November 20, 2009. The Defendant extended the above performance period until December 14, 2009.

C. On June 3, 2011, the Defendant imposed 63,660,000 won, which is equivalent to 10/100 of the acquisition value of each of the instant land, as a non-performance penalty, on the ground that the Plaintiff left each of the instant land alone without using it for the permitted purpose, pursuant to Article 124-2(1) and (2) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and Article 124-3(3)1 of the Enforcement Decree of the National Land Planning and Utilization Act.

D. On August 31, 2011, the Plaintiff filed an administrative appeal seeking revocation of the disposition imposing enforcement fines with the Gyeonggi-do Administrative Appeals Commission. On December 1, 2011, the said commission rendered a ruling to change the Defendant’s disposition imposing enforcement fines by applying Article 124-3(3) Subparag. 4 of the Enforcement Decree of the National Land Planning Act to the disposition imposing enforcement fines equivalent to 7/100 of the acquisition value of land, on the ground that “it is difficult to deem that the Plaintiff was aware of the fact that the Plaintiff did not use each of the instant land for the permitted purpose, but did not have neglected it.” According to the ruling above, the Defendant reduced the enforcement fines to KRW 44,562,00 and notified the Plaintiff thereof on December 22, 2011 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 7, 8, 11, Eul evidence Nos. 1, 6, 7, 9, 10, 12, and 13 (including various numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

(1) The Plaintiff started construction of each of the instant lands before June 30, 2010, which was the deadline for the use of each of the instant lands, and thus, it cannot be deemed that the Plaintiff did not use each of the instant lands for the purpose of permission within the deadline for use. Even if not, the Plaintiff could not use each of the instant lands for a considerable period of time on May 19, 2010, with the wind for which the construction permit was revoked, and thereafter, the said disposition of revocation of the construction permit became null and void by the ruling of the administrative appeals commission. Therefore, there were justifiable grounds for the Plaintiff not using each of the instant lands for the purpose of permission.

(2) On January 17, 2011, the Defendant expressed the Plaintiff’s intent to “if construction works continue to be carried out, no enforcement fine shall be imposed” on several occasions, and the Plaintiff believed it and continued to carry out new construction works on each of the instant land. Nevertheless, the Defendant’s instant disposition imposing enforcement fines on the Plaintiff is against the Plaintiff’s trust in the name of the above public opinion list, thereby going against the principle of trust protection or good faith.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the Plaintiff’s first argument

Article 124(1) of the National Land Planning and Utilization Act provides that “Any person who has obtained permission for a land transaction contract shall use the land for the permitted purpose for a period prescribed by Presidential Decree not exceeding five years, except where any ground prescribed by Presidential Decree exists.” Here, what is “the purpose for which permission is granted” shall, in principle, be determined by the entry of the permission for a land transaction contract (see Supreme Court Order 2008Ma414, May 19, 2008, etc.). Whether the land is being used for the permitted purpose shall be determined by comprehensively taking into account the purpose for which permission is granted, the details of the land use plan submitted in accordance with Article 21(1) of the Enforcement Rule of the National Land Planning and Utilization Act at the time of applying for a land transaction permission, the current status of the use of the permitted land, the extent and reason thereof, etc. (see Supreme Court Decision 201Du10935, Feb. 9, 2012).

Based on the above legal principles, comprehensively taking account of the following circumstances acknowledged by the health team, Gap evidence Nos. 1 through 17, Eul evidence Nos. 1 through 13 (including various numbers), and the testimony and pleading of the non-party witness as a whole, it cannot be deemed that the Plaintiff fulfilled its duty to use each of the instant land for the permitted purpose within the designated use period. The Plaintiff’s assertion on this part is without merit.

① The land use plan description submitted by the Plaintiff at the time of filing an application for land transaction permission with respect to each of the instant land is written as of March 2008 at the scheduled commencement date of the project for sale after new construction of a house, and as of December 9, 2008 at the scheduled commencement date of use. However, the Plaintiff neglected each of the instant land by August 2009, without performing the said construction as scheduled, even though it acquired ownership of each of the instant land on May 9, 2008.

② Accordingly, on August 24, 2009, the Defendant ordered the Plaintiff to use each of the above land for the permitted purposes by November 20, 2009, and upon the Plaintiff’s request for extension of the payment period, extended the payment period on December 14, 2009 by June 30, 2010. However, on June 25, 2010, the Plaintiff completed the construction report on the construction of each of the instant building on each of the instant land before the expiration of the payment period, and only partially performed the construction of the floor and concrete building on each of the instant land until the expiration of 2010, and the basic construction for the construction for the construction of detached houses was entirely not implemented.

③ As such, there was a defect in advance notice by the Defendant that he would impose a charge for compelling compliance on the Plaintiff on January 17, 201, and the Plaintiff started construction of a building aggregate since March 18, 201 and completed construction of a part of the building only after April 201.

④ The land use plan manual submitted by the Plaintiff at the time of filing an application for land transaction permission regarding each of the instant lands stated that each of the instant lands was purchased for the purpose of newly constructing and selling “house for steel reinforced concrete structure and steel frame.” On November 12, 2007, the Defendant’s notice of permission for land transaction contract to the Plaintiff on November 12, 2007 stated that the purpose of use of each of the instant lands is “new construction and parcelling-out of a detached house.” However, for the Plaintiff’s building newly built on each of the instant lands around April 201, the form, structure, and use of each of the instant lands are merely three bonds of a prefabricated building for light steel frame which are entirely different from the form, structure, and use. Therefore, it does not conform to the original

⑤ The system of permission for a land transaction contract is to prevent speculative transactions in an area where speculative transactions of land are personality and behavior or land price rise rapidly, and speculative transactions in such an area. The competent authority only grants permission to a person who intends to enter into a land transaction contract to enter into a land transaction contract in compliance with the standards for permission stipulated in the National Land Planning Act, taking into account the legislative intent as above, and does not necessarily require permission under other Acts and subordinate statutes, such as permission for land development activities. Therefore, obtaining permission necessary for a person who has obtained permission for a land transaction contract to engage in development activities, such as changing the form and quality of land, is a matter separate from permission for a land transaction contract (see, e.g., Supreme Court Decision 2011Du1665, Jun. 30, 201). Moreover, solely on the ground that permission for a land transaction contract was revoked after obtaining permission for a land transaction contract, it does not constitute “where it is impossible to use the land for the permitted purpose due to reasons not attributable to the person who has obtained permission for a land transaction contract, etc.”

(2) As to the second argument of the Plaintiff

In general, in administrative legal relations, in order to apply the principle of protection of trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the subject of trust to the individual, the second administrative agency should have a reason attributable to the individual when the statement of opinion is justifiable and trusted, and the third administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the above statement of opinion against the above statement of opinion, thereby infringing the interests of the individual who trusted the statement of opinion. Lastly, when taking an administrative disposition in accordance with the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du13592, Feb. 24, 2006, etc.).

Based on the above legal principles, only the descriptions and videos of evidence Nos. 4 through 9, and 13 through 18 regarding the instant case cannot be deemed to have expressed a public view that the Defendant would not impose a non-performance penalty against the Plaintiffs, and there is no other evidence to acknowledge it. Therefore, the Defendant’s disposition of this case cannot be deemed to be in violation of the principle of trust protection or good faith. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form 5]

Judges Ying-Wing-man (Presiding Judge)