[1] Criteria for determining the scope of development project subject to the imposition of development charges (=area of land subject to the project subject to the authorization, etc.)

[2] Where the land price as of the starting point for imposition of development charges falls under the scale subject to imposition of development charges through authorization for modification, etc., the starting point for imposition

[1] The scope of the development project subject to the development charges shall be determined on the basis of the area of the land subject to the project, which is authorized by the relevant statutes, regardless of the area of the land attributed to the project executor.

[2] Article 9(1)3 of the former Restitution of Development Gains Act (wholly amended by Act No. 9045 of Mar. 28, 2008) and Article 6-2(3)3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19752 of Dec. 15, 2006) provide that "the starting point for imposing development charges shall be the date the project operator obtains the authorization of the development project from the State or the local government, but the starting point for imposing development charges shall be the date of modifying the land use plan, etc. with respect to the land newly incorporated into the land subject to imposition, unless the change of the land use plan, etc. is made before obtaining the authorization of the change." The latter part of Article 4(1) of the Enforcement Decree of the same Act provides that "where a development project is implemented by actually dividing the land adjacent to the same person with the authorization of the development project within five years after its completion, it shall be deemed that one development project is implemented by adding the land subject to the first authorization of the development charges, etc.

[1] Article 5(1) of the former Restitution of Development Gains Act (wholly amended by Act No. 9045 of Mar. 28, 2008); Article 4(1)2 of the former Enforcement Decree of the Restitution of Development Gains Act (wholly amended by Presidential Decree No. 19752 of Dec. 15, 2006) / [2] Article 9(1)3 (see current Article 9(1)2) of the former Restitution of Development Gains Act (wholly amended by Act No. 9045 of Mar. 28, 2008); Articles 4(1) and 6-2(3)3 (see current Article 8(2) of the former Enforcement Decree of the Restitution of Development Gains Act (wholly amended by Presidential Decree No. 19752 of Dec. 15, 2006)

[1] Supreme Court Decision 95Nu10464 delivered on July 12, 1996 (Gong1996Ha, 2510) Supreme Court Decision 98Du2881 delivered on December 10, 199 (Gong2000Sang, 204Du2073 Delivered on May 13, 2005) / [2] Supreme Court Decision 2003Du6047 Delivered on June 16, 2006

[Defendant-Appellant] Plaintiff (Law Firm Sol, Attorneys Hawon-won)

E-Government Market

Seoul High Court Decision 2007Nu1561 decided August 23, 2007

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

In light of the records, since the land category on the public register of 1,133 square meters of the instant land was changed from the paddy field due to the construction of the instant neighborhood living facilities, the instant development project is a project which requires a change of land category under Article 5 (1) 10 of the former Restitution of Development Gains Act (wholly amended by Act No. 9045 of Mar. 28, 2008; hereinafter “the Act”), and the area of the land subject to the project is at least 90 square meters under Article 4 (1) 2 of the Enforcement Decree of the Act (amended by Presidential Decree No. 19752 of Dec. 15, 2006; hereinafter “Enforcement Decree”), and it is justifiable to have determined that the instant land was changed to the actual site prior to the instant development project, and there is no error in the misapprehension of legal principles as to the area subject to development, or incomplete deliberation.

2. As to the third ground for appeal

The scope of development project subject to the development charges should be determined on the basis of the area of the land for which the project operator has obtained authorization under the relevant Acts and subordinate statutes, regardless of the area of the land belonging to the project operator due to the execution of the project (see Supreme Court Decisions 95Nu10464, Jul. 12, 1996; 2004Du2073, May 13, 2005, etc.).

In the same purport, the lower court is justifiable to have determined that the land subject to the instant development project is the entire land of this case, including 192 square meters of land planned for a road site, and thereafter, that the entire land of this case was changed to a site from the paddy field, and thus, the land category was changed to a site. Thus, even if the above part of 192 square meters was determined after the determination of urban planning facilities, and the above part of 192 square meters was actually incorporated into a road, the land subject to the instant development project is the total land of 1,133 square meters of the land of this case, the actual land category

3. As to the fourth ground for appeal

Article 9 (1) 3 of the Act and Article 6-2 (3) 3 of the Enforcement Decree of the Act provide that "the starting point for imposing development charges shall be the date when the project implementer obtains the authorization of a development project from the State or a local government, and where the area of the land subject to imposition is changed due to the change of authorization, etc., it shall be the date of change of the land use plan, except for the case where the land newly incorporated is changed before obtaining the authorization of change, etc. for the land subject to imposition." Article 4 (1) of the Enforcement Decree provides that "where a development project is actually implemented after obtaining the authorization, etc. of a development project within five years after the completion of a single development project connected to the same person, the development project shall be deemed to be implemented on the land summing up the area of each project." In such cases, the starting point for imposing development charges shall be the date of obtaining the authorization of each land (see Supreme Court Decision 2003Du6047, Jun. 16, 2006).

In the same purport, the court below is just in holding that the starting point of imposing the land category of 882.11 square meters, the starting point of imposing the change at the time of the first construction permission, is August 29, 2002, the first permission date, and that the starting point of imposing the land category of 250.89 square meters, the change of land category of which is newly incorporated after the change of construction permission, shall be April 1, 2003, the change date, and there is no error in the misapprehension of legal principles

4. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)