[1] Whether Article 3 subparag. 1 [Attachment 1] of the Enforcement Decree of the Act on the Ownership of Housing Site constitutes a violation of the parent law (negative), and whether the provision violates the principle of equality under the Constitution (negative)

[2] Whether a dormitory located within the boundary area of a factory constitutes a house under the Act on the Ownership of Housing Sites (affirmative)

[3] Whether a notice of payment should be issued separately for each imposition period when the increase in the housing site excess ownership charges is disposed of (negative)

[4] In a case where necessary entries are stated in a notice of notice of notice of notice of notice of notice of notice of notice of notice of notice of notice of notice of notice of notice of imposition, whether such defects are cured (affirmative)

[1] Article 3 subparagraph 1 of the Enforcement Decree of the Act on the Ownership of Housing Sites and the main sentence and column of Article 3 subparagraph 1 (b) of the Act on the Ownership of Housing Sites are intended to be concrete based on the purport of Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites. Thus, the provisions of attached Table 1 cannot be deemed to be inconsistent with the provisions of the mother Act or invalid beyond the scope of delegation by the mother Act, and even if the provisions of attached Table 1 provide different scope of each land annexed to a building and a building other than a factory, it shall not be deemed to be in violation of

[2] A dormitory is a building constructed for residential purposes and falls under a house stipulated in subparagraph 2 of Article 2 of the Act on the Ownership of Housing Sites, and therefore, the provisions of subparagraph 1 [Attachment 1] of Article 3 of the Enforcement Decree of the same Act concerning the scope of land annexed to a building that is not a house does not apply to the scope of land annexed to a building that is not a house. Thus, a measure calculated in accordance with the basic area under Article 9 (1) 1 of the Enforcement Decree of the same Act for a dormitory located within the boundary of

[3] Article 32(3) of the Enforcement Decree of the Act on the Ownership of Housing Sites provides that when there is an increase in the amount to be paid after a notice of payment is issued, a notice of payment should again be issued for such increase, and the Enforcement Decree of the same Act does not provide that a notice of payment should be issued separately for each imposition period. Thus, as long as the calculation basis of an increase in the amount is specified in the notice of payment according to the imposition period, it shall not be deemed unlawful even if the notice of payment was not issued for each imposition period.

[4] If part of the amount to be paid, calculation basis, payment deadline, place of payment, etc. is omitted in the notice for payment of excess ownership charges, the disposition of imposition is unlawful. However, if the necessary entries in the notice for payment notice issued by the imposing authority prior to the disposition of imposition are properly stated in the notice for payment notice, it is obvious that the payment obligor was not at all hindered in the decision of objection against the disposition of imposition and the appeal for dissatisfaction. Thus, the defect in the notice for payment can be corrected or cured.

[1] Article 11 of the Constitution, Article 2 subparag. 1 (b) of the Act on the Ownership of Housing Sites, Article 3 subparag. 1 [Attachment 1] of the Enforcement Decree of the Act on the Ownership of Housing Sites / [2] Article 2 subparag. 2 of the Act on the Ownership of Housing Sites, Article 3 subparag. 1 [Attachment 1] and Article 9(1)1 of the Enforcement Decree of the Act on the Ownership of Housing Sites / [3] Article 27(3) of the Act on the Ownership of Housing Sites, Article 32(3) of the Enforcement Decree of the Act on the Ownership of Housing Sites / [4] Article 31(1) of the Enforcement Decree of the Act

[1] Supreme Court Decision 93Nu18105 delivered on February 25, 1994 (Gong1994Sang, 11131) Supreme Court Decision 93Nu22968 delivered on March 22, 1994 (Gong1994Sang, 1351) Supreme Court Decision 94Nu9221 delivered on December 22, 1995 (Gong1996Sang, 565) / [4] Supreme Court Decision 93Nu19542 delivered on March 25, 1994 (Gong194Sang, 1353), Supreme Court en banc Decision 94Nu9696 delivered on July 11, 195 (Gong195Ha, 265) 95Nu56595 delivered on September 25, 195 (Gong1995Ha, 265)

Plaintiff (Attorney Hong-soo et al., Counsel for the plaintiff-appellant)

Head of Daegu Metropolitan City Southern-gu

Daegu High Court Decision 96Gu7718 delivered on May 15, 1997

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

We examine the grounds of appeal.

1. On the first ground for appeal

The main sentence of Article 3 subparagraph 1 of the Enforcement Decree of the Act on the Ownership of Housing Sites and its [Attachment 1] and subparagraph 1 (b) of Article 2 of the Act on the Ownership of Housing Sites (hereinafter referred to as the “Act”), are aimed at embodying the provisions based on the purport of Article 3 subparagraph 1 of the same Decree and subparagraph 1 (b) of the same Article. Thus, the provisions of [Attachment 1] cannot be deemed to be inconsistent with the provisions of the mother Act or to be invalid beyond the scope of delegation by the mother Act (see, e.g., Supreme Court Decisions 93Nu18105, Feb. 25, 1994; 93Nu2968, Mar. 22, 1994; 94Nu9221, Dec. 22, 1995); even if the provisions of [Attachment 1] provide different scope of each building and land annexed to a building other than a factory, it cannot be deemed to violate the principle of equality under the Constitution.

The judgment of the court below to the same purport is just, and it cannot be said that there is an error of law such as misunderstanding of legal principles or contradiction in the reasoning. The argument is without merit.

2. On the second ground for appeal

Since the provisions of subparagraph 1 [Attachment 1] of Article 3 of the Enforcement Decree of the Act on the scope of land annexed to a building that is not a house because a dormitory is constructed for use as a residential building and falls under a house stipulated in subparagraph 2 of Article 2 of the Act, it shall not be applied to the scope of land annexed to a building that is not a house. Thus, the court below is justified in the measure that calculated the area of a housing site which is excluded from the imposition of the charge for excess ownership on the dormitory located within the boundary of a factory according to the basic area stipulated in Article 9 (1) 1 of the Enforcement Decree, and there is no

3. On the third and fourth grounds

Article 32(3) of the Enforcement Decree of the Act provides that when there is an increase in the amount to be paid after a notice of payment is issued, a notice of payment shall again be issued for such increase, and the Enforcement Decree does not provide that a notice of payment for an increase shall be issued separately by each imposition period. Thus, as long as the basis for calculating an increase in the amount is properly stated in a notice of payment for an increase amount by a imposition period, it cannot be deemed unlawful even if a notice of payment is not issued for each imposition period.

In addition, if part of the amount to be paid, calculation basis, payment deadline, place of payment, etc. is omitted in the notice of payment of the housing site excess ownership charges, the imposition disposition is illegal. However, if the necessary entries in the notice of payment notice issued by the imposing authority prior to the imposition disposition are properly stated in the notice of payment notice under Article 31 (1) of the Enforcement Decree, it is obvious that the payment obligor would not have any impediment to the decision of objection to the disposition of imposition and the appeal, thereby, the defect of the notice of payment notice can be corrected or cured (see, e.g., Supreme Court Decisions 93Nu19542, Mar. 25, 1994; 94Nu9696, Jul. 11, 1995; 95Nu6565, Sept. 26, 1995).

According to the records, the defendant did not state the basis for calculation of the charge, such as the location, area, individual land price, change rate of land price, excess ownership period, imposition rate, etc. in the notice of payment, but it can be seen that the notice of prior to the disposition of this case and the report of determination of the charge attached thereto (the notice of prior to the disposition of this case is in accordance with the form prescribed in Article 39 of the Regulations on the Imposition and Collection of Charges on the Housing Site Excess Ownership, which is the directives of the Ministry of Construction and Transportation) contain all the basis for calculation of the charge by the imposition period. Thus, it is reasonable to view that the defect that is the defect in the basis for calculation of the payment notice, which exists at the time of the disposition of this case by the defendant

The judgment of the court below to the same purport is just, and there is no error of law such as misunderstanding of legal principles or incomplete deliberation, etc. It is not justified.

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

Justices Song Jin-hun (Presiding Justice)