[1] The case holding that in case where the Namyang-ju market, which was delegated to the Governor of the Gyeonggi-do for the imposition and collection of school site charges to the Governor of the Gyeonggi-do, sent a public notice of the fact that it is difficult to refund as a result of consultation with the Governor of the Gyeonggi-do, the entity to whom charges accrue, on the application for refund of charges by development project implementers, under the title "the Gyeonggi-do interview

[2] The meaning of "a case of free supply" under Article 5 (4) 4 of the Act on Special Cases concerning the Securing, etc. of School Sites

[3] The case holding that the rejection disposition is unlawful in case where the development project operator who paid all school site charges related to the housing construction project in accordance with the disposition of imposition of the Namyang-ju City market which was delegated the affairs of imposition and collection of school site charges to the Governor of the Gyeonggi-do and applied for a refund of the already paid charges, but the Namyang-ju market responded responded to the purport that "the Gyeonggi-do government shall not be exempt from the imposition and collection of the charges normally", and the remaining Yangyang-ju market notified that "the above charges shall not be imposed and collected normally

[1] In a case where the Namyang-ju market entrusted to the Governor of the Gyeonggi-do with the affairs concerning the imposition and collection of school site charges on the application for refund of charges by development project implementers, "the Gyeonggi-do meeting for the refund of charges is known as a result of the Gyeonggi-do meeting held by the Governor of the Gyeonggi-do," and where the Namyang-ju market sent a public notice to the Governor of the Gyeonggi-do that it is difficult to refund as a result of consultation with the Governor of the Gyeonggi-do, the entity to whom the charges accrue, the case holding that, as long as the Namyang-ju market is entrusted with the affairs concerning the imposition and collection of school site charges by the Governor of the Gyeonggi-do, it constitutes an application for refund of charges under Article 5 (4) of the Act on Special Cases Concerning the Securing, etc. of School Sites, as well as the authority to decide on the application for exemption or refund based on the right to apply for the cooking after the disposition of imposition is made, the charges are reverted to the special account for the school site charges of Gyeonggi-do, and the above charges cannot be exempted.

[2] According to Article 5 (4) 4 of the Act on Special Cases Concerning the Securing, etc. of School Sites, "Where a development project operator supplies school sites or school facilities without compensation as public property belonging to the special accounts for City/Do educational expenses", the term "cases of free supply" should be interpreted as including cases where a development project operator executes an agreement for free supply of school facilities as well as cases where he/she concludes an agreement for free supply of school facilities as well as cases where he/she performs an agreement for free supply of school facilities. This is because such interpretation is natural in terms of the language and text of the provision, and the development project operator can request and enforce the implementation, and further impose and collect charges if the development project operator fails to implement the agreement for free supply, and the development project operator needs to apply for exemption from the effect of imposition even if he/she concludes an agreement for free supply after the imposition of charges, and if he/she pays the charges, it is necessary to use it as construction expenses for school facilities that he/she intends to receive

[3] The case holding that Article 5 (4) 4 of the Act on Special Cases Concerning the Acquisition, etc. of School Sites (hereinafter "Special Cases Act") as amended on May 28, 2009 is applicable to the application for the refund of school sites due to the following reasons: (a) development project implementers who paid all school site charges related to housing construction projects according to the imposition disposition of the Namyang-gu Office of Education and apply for the refund of the already paid charges; (b) however, the Namyang-gu mayor gave reply to the purport that the Gyeonggi-do government cannot be exempted from the imposition and collection of the above charges normally; and (c) the development project implementers had already concluded an agreement on the free supply of school facilities after the disposition of rejection, and thus, (d) Article 5 (4) 4 of the Act on Special Cases Concerning the Acquisition, etc. of School Sites ("Special Cases Act"), which was amended on May 28, 2009, applies to the application for the refund of school sites charges for the above donation; and (d) where the development project implementers had already concluded the above provision of school facilities supply charges without compensation.

[1] Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 5 (4) 4 of the Act on Special Cases Concerning the Securing, etc. of School Sites / [3] Article 5 (1), (4) 4, and Article 9 of the Act on Special Cases Concerning the Securing, etc. of School Sites

[3] Constitutional Court en banc Order 2007Hun-Ga9 decided September 25, 2008 (Hun-Gong144, 1244)

Alwon City Development Co., Ltd. (Law Firm Rate, Attorneys Jeon Young-young et al., Counsel for defendant-appellant)

Namyang City and one other (Law Firm LLC, Attorneys Jeong Jae-ro, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2009Guhap4093 decided August 17, 2010

April 19, 2011

1. Revocation of the first instance judgment.

2. The disposition rejecting the refund of charges for school sites made against the Plaintiff on September 28, 2009 by the defendant Namyang-ju market shall be revoked.

3. Of the total litigation costs, the part between the Plaintiff and the Defendant Namyang-si Market is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Nam-si is assessed against the Plaintiff, respectively.

The judgment of the court of first instance is revoked. In the first instance, the judgment and the first instance judgment are primarily and ancillary, and the defendant Nam-si will pay to the plaintiff 2,002,062,40 won with 20% interest per annum from the day after the delivery of the complaint of this case to the day of full payment.

1. Details of the disposition;

A. On December 21, 2006, the Plaintiff, a company running a business, such as apartment construction, etc., obtained the approval for each housing construction project plan for the land from the defendant Namyang-si, Namyang-si, the Namyang-si, the 579-17 and the 560-1 and 35 of the same Ri, and the 283-3 and 101 parcels on December 22, 2006 as well as the 283-3 and 101 parcels.

B. On July 20, 2007, the defendant Namyang-ju Mayor imposed the plaintiff total amount of KRW 2,00,02,02,066,62,400 on October 2, 2007, and KRW 301,456,80 on October 2, 2007, KRW 5,015,120 on October 12, 2007, KRW 9,680 on September 25, 2009, total of KRW 2,00,062,40 on the above housing construction project (hereinafter “instant charges”). The plaintiff paid the instant charges in entirety.

C. On the other hand, on January 28, 2008, the Plaintiff established a tentatively named elementary school for students living in the Bupyeong-gu Office of Education in the Namyang-gu (hereinafter “Seoul-do Office of Education”) on behalf of students living in the Bupyeong-gu, Gyeonggi-do (hereinafter “Seoul-do Office of Education”), the Namyang-gu Office of Education prepared a “written promise of the establishment and donation of Bupyeong-gu elementary school” (Evidence 6-1) that the Plaintiff bears the site cost of the above elementary school and bears the new construction cost.

D. On February 25, 2008, the defendant Namyang-ju Mayor: (a) decided to conclude an agreement on the donation of school establishment with the office of education in Namyang-ju; (b) notified the plaintiff of a plan to refund to the plaintiff before the commencement of school construction as he/she applied for a refund from Gyeonggi-do after obtaining the change of the conditions of business approval from the office of education immediately after the conclusion of the agreement on the donation of school establishment and the deliberation committee on the plan for school establishment; and (c) on March 10, 2008, the plaintiff drafted an agreement on the establishment of Bupyeong-gu Elementary School and the letter on the donation of the same contents as the letter of undertaking on the establishment and donation of the above Bupyeong-gu Elementary School (Evidence 6-5) with the office of education

E. On July 14, 2008 and November 6, 2008 of the same year, the Plaintiff requested the Namyang City Mayor and the office of education of Namyang to take measures to refund the instant charges. On November 26, 2008, the Namyang City Mayor made a reply that the Plaintiff is actively promoting the refund of the instant charges. On December 11, 2008, the Plaintiff consulted on a plan to secure funds for the new construction of the Bupyeong Elementary School through the refund of the instant charges by gathering the Plaintiff, the Namyang-si Office of Education, etc. (the evidence No. 6-7 through 11). After that, the Plaintiff, on January 21, 2009 and March 10, 2009, requested the Gyeonggi-do Office of Education to refund the instant charges to the Plaintiff on the ground that the new construction of the above elementary school falls short of funds to be reduced or exempted, but the Plaintiff did not first request the Gyeonggi-do Office of Education to refund the charges to the Plaintiff within the Nam Yangyang-do Office of Education.

F. On March 31, 2009, the Plaintiff drafted again the “Agreement on the Establishment and Donation of Bupyeong Elementary Schools” (Evidence 6 No. 19) with the content that the scale of the facilities of the Bupyeong Elementary School changed from the scale of the previous 24 classes to the scale of 12 classes.

G. On April 22, 2009, the Plaintiff filed a report on the commencement of the project at Bupyeong Elementary School, and on August 31, 2009, Defendant Namyang-ju Mayor applied for the refund of the instant charges, but on September 28, 2009, Defendant Namyang-ju Mayor notified that Gyeonggi-do was normally imposed and collected the instant charges, and that the instant charges shall not be exempted if the refund is requested (hereinafter “instant refusal disposition”).

H. On March 23, 2010, the Plaintiff implemented an agreement on donation by completing the registration of ownership transfer in the name of the Plaintiff at the same time with the completion of registration of ownership transfer in the name of Gyeonggi-do on the newly constructed building after completing the construction of the Bupyeong Elementary School.

[Reasons for Recognition] Uncontentious Facts, Gap 1 through 7 evidence (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The primary claim

The Governor of the Gyeonggi-do delegated the affairs concerning the imposition and collection of school site charges to the Mayor of Namyang-ju pursuant to the Act on Special Cases Concerning the Securing, etc. of School Sites (hereinafter “Special Cases Act”), and Article 5 of the Special Cases concerning the imposition, collection, and exemption of charges. The duty concerning the exemption of charges has also been delegated to the Mayor of Namyang-ju. Although there is no provision concerning the exemption of charges, the special cases concerning the exemption of charges has the same legal effect as that of exemption, the duty concerning the refund has also been delegated to the Mayor of Nam-ju. In addition, under Article 5(4)4 of the Special Cases concerning the Special Cases concerning the Imposition and Collection of School Site Charges, where a development project operator supplies school facilities without compensation as public property belonging to the special accounts of City/Do educational expenses, the exemption of charges is stipulated to be granted. After the payment of the charges in this case, the plaintiff who is the one who provided school facilities with trust in the obligation to refund the charges in this case, and the defendant Namyang-ju, who is delegated with the duties concerning the refund of charges, is unlawful in violation of the principle of proportionality principle, equality.

2) Preliminary Claim

Defendant Nam-si has an obligation to pay the Plaintiff an amount equivalent to the charge, on the basis of the above agreement or undertaking, as the Plaintiff agreed or promised to refund the charge, and even if not, the Plaintiff is obliged to pay the amount equivalent to the charge to the Plaintiff on the basis of the above agreement or undertaking. Although the Plaintiff trusted the above undertaking and donated the school facilities of Bupyeong Elementary School, the Defendant Nam-ju market did not refund the charge against the undertaking so that it constitutes a tort that infringes on the Plaintiff’s trust, and thus, the Defendant Nam-si is obliged to compensate the Plaintiff for the amount equivalent to the charge under the State Compensation Act.

B. Main safety defense of the Defendants

1) The main defense as to the main claim

The defendant Namyang-ju market is merely a mere delivery of the position of Gyeonggi-do that it is difficult to refund the result of consultation with the Gyeonggi-do Governor, who is the subject of statutory charges, and this constitutes a non-power factual act, such as simple opinion or answer to questions, which does not have any specific and direct influence on the existence or scope of the plaintiff's right to claim the refund or exemption of charges. Therefore, it does not constitute an administrative disposition subject to administrative litigation, and it does not constitute an administrative disposition subject to administrative litigation, and even if it is not possible to demand the plaintiff to perform an administrative act following the application for the refund of charges, it does not affect the plaintiff's right or legal interest due to such refusal. Thus, it cannot be deemed an administrative disposition subject to

In addition, since the instant charges already belong to the Gyeonggi-do special account for school site charges established under Article 126 of the Local Autonomy Act, the actual authority to determine whether to refund the charges shall be deemed to exist under the Governor of the Gyeonggi-do. Therefore, even though the Governor of the Gyeonggi-do applies for the refund against the Governor of the Gyeonggi-do, it was erroneous against

Therefore, among the lawsuits of this case, the main claim of this case should be dismissed as it appears to be a conspiracy and illegal.

2) Main defense as to the conjunctive claim

The plaintiff's conjunctive claim shall be based on the method of civil procedure, and it shall not be claimed by the administrative litigation, and it shall be dismissed in an improper manner.

C. Relevant statutes

It is as shown in the attached Form.

D. Determination

We examine the plaintiff's main claim.

1) Determination on the main defense of this case

(1) If an administrative agency’s refusal of an action following a citizen’s affirmative filing of an application constitutes an administrative disposition subject to appeal litigation, the filing of the application must be an exercise of public authority or an equivalent administrative action, and the refusal must cause any change in the applicant’s legal relationship, and the citizen must have the right to file an application in accordance with the law or sound reasoning to demand that the citizen stop such action. In addition, the existence of a right to file an application, which serves as a premise for recognizing a disposition of rejection, shall be determined abstractly without considering who the applicant is the applicant in a specific case, and the applicant’s right to file an application does not mean the right to obtain the satisfactory result of accepting the application beyond a simple response to the application. Thus, if a citizen makes an application, under the interpretation of the provision that provides the basis for the application, if it appears that an individual right to file an administrative action is recognized, such refusal shall be deemed a disposition subject to appeal litigation, and it shall be determined specifically whether the application can be cited (see, e.g., Supreme Court Decision 2009Du368, Sept. 26, 20109).

However, Article 5 (1) of the Special Act provides that "A Mayor/Do Governor may impose and collect charges on a person who sells multi-family housing in a development project area," while Article 5 (4) 4 of the same Act provides that "Where a development project operator supplies school sites or school facilities without compensation as public property belonging to the special accounts of City/Do educational expenses, the charges shall be exempted." Thus, if the charges are imposed and collected even though the requirements for exemption under Article 5 (4) 4 of the same Act exist before the imposition and collection of charges are imposed and collected, the other party to the disposition may receive legal relief by filing an administrative litigation seeking cancellation or nullification of the disposition of imposition. However, if the above exemption requirements are met after the legitimate disposition of imposition as in the case of this case, it is difficult to view that the legal relief can be granted by any method (after the imposition, it is difficult to see that the free supply under Article 5 (4) 4 of the Special Act is not permitted, and there is no reasonable ground to grant the effect of exemption from charges after the imposition is made after the imposition without compensation).

As long as the imposition of a charge was duly made at the first time, the imposition of a charge is not unlawful on the ground that the circumstances that meet the requirements for exemption have occurred thereafter, and thus, it cannot be claimed for the revocation or nullification of the imposition on the ground of such subsequent triggering circumstances. Furthermore, if the collection was made based on the imposition disposition, the collected charge cannot be deemed to have been obtained without any legal ground, and thus, it cannot be claimed for the return on the ground of unjust enrichment, and it cannot be claimed for damages on the ground of the illegality of the disposition of imposition.

If the other party to the disposition imposing a charge is placed in a situation in which it is impossible to recover any right or legal benefit pursuant to the ordinary legal remedy procedure, it is desirable to stipulate that the legislators may apply for exemption of the charge in the event that the other party to the disposition fails to pay the charge on the grounds of the subsequent occurrence of the requirements for exemption as above, and that the other party to the disposition imposing the charge may apply for exemption of the charge in the event that the payment of the charge is made, and that the other party to the disposition imposing the charge may apply for exemption or refund if the charge is paid. If there is a provision that the legislators may apply for such exemption or refund, the other party to the disposition imposing the charge shall have the right to apply for exemption or refund under the relevant law, but if

② Meanwhile, Articles 5(1) and 9(1) of the Act on Special Cases concerning the Imposition and Collection of Charges provide that the Mayor/Do Governor shall impose and collect charges, but may delegate the affairs concerning the imposition and collection to the head of a Si/Gun/Gu, as prescribed by the Municipal Ordinance of the City/Do. Accordingly, Article 4(1) of the former Gyeonggi-do Ordinance on the Imposition and Collection of Charges for School Sites and the Establishment of Special Accounts (wholly amended by Ordinance No. 4054, May 12, 2010; hereinafter “Do Ordinance”) provides that the affairs concerning the imposition and collection of charges shall be delegated to the head of a Si/Gun, and the Gyeonggi-do Governor shall delegate the affairs concerning the imposition and collection of charges to the head of the Si/Gun/Gu in accordance with the above provision. As such, insofar as Defendant Nam-ju City mayor entrusted the affairs concerning the imposition and collection of charges by the Governor of the Gyeonggi-do Governor, Defendant Nam-ju City Mayor shall have the authority to decide on the application for exemption or refund of the charges under this Act (see Supreme Court Decision 2005Da7575, May 297, 20197).

③ As seen above, as long as Defendant Namyang-ju market has the authority to decide on the application for exemption of charges and at the same time bears the duty to comply with the Plaintiff’s decision on the application for refund as of August 31, 2009, the Plaintiff is obligated to pay the charges. Although the charges were reverted to the special account for school site charges in Gyeonggi-do, and the Plaintiff’s claim for refund was made, the Plaintiff’s answer that the charges in this case was normally imposed and collected, and the Gyeonggi-do cannot be exempted from the charges, and upon the request for refund, it was sent to the Plaintiff under the title “the Gyeonggi-do interview with the case for which the request for refund was made, know about the result of the Gyeonggi-do interview with the case for which the request for refund was made,” this is essentially the purport of rejecting the Plaintiff’s application for refund, it constitutes a refusal disposition against

④ Therefore, this part of the lawsuit that the Plaintiff seeks revocation of the rejection disposition of this case against the defendant Namyang-ju market is legitimate, without any justifiable ground for the main part of the claim against the main part of the defendant Nam-ju market.

2) Determination on the merits

(1) Article 5 (4) of the Act on Special Cases concerning the Exemption of Charges was newly established at the time of the amendment on March 24, 2005 with the aim of reducing the burden of the people by exempting the imposition of charges in cases where the purpose of imposing charges has already been achieved or the need for imposing charges has not been generated. The Constitutional Court, with respect to the above provision, has a provision prohibiting dual burdens only on a person who has donated school sites, and has not provided any provision on a person who has extended and donated a school building, cannot find any reasonable ground for discrimination, and thus, it is in violation of the Constitution. However, it is determined that the legislators need to continue to apply the above provision until the date of improvement of law in the constitutional direction, and thus, it is consistent with the purport of the en banc Decision on June 30, 2009, which provides that "the person who has extended existing school building under an agreement with an educational administrative agency to receive a exemption from charges or who has received a exemption from charges until 200 days before the amendment of 208 provisions under the Constitution."

Article 5(4)4 of the Act on Special Cases Concerning the Settlement of Donations of this case shall also apply to applications for refund following the Plaintiff’s refusal of this case, in light of the purport and time of the decision of the Constitutional Court, the promulgation and enforcement time of the amended Act in accordance with the purport of the above decision, the time of the Convention on the Donation of this case ( March 31, 2009) and the time of its implementation ( March 23, 2010) and the time of the disposition of refusal of this case ( September 28, 2009).

② In addition, Article 5(4)4 of the Act on Special Cases concerning the Settlement of Agricultural and Fishing Villages provides that “Where a development project operator supplies school sites or school facilities without compensation as public property belonging to the special accounts of City/Do educational expenses” shall be exempted from the necessary charges. The phrase “cases of free supply” in this context includes not only cases where the development project operator performs the free supply of school facilities, but also cases where an agreement for free supply of school facilities is entered into. This is because such interpretation is natural in light of the language and text of the provision, the development project operator may request and enforce the implementation, and further impose and collect the charges if the development project operator fails to comply with the free supply agreement, and the development project operator needs to file an application for exemption from the effect of the imposition even before the imposition of the charges is made, and it is necessary to use the already paid charges as construction expenses for school facilities to be supplied without compensation.

③ Therefore, on March 23, 2010, the time when the Plaintiff completes the implementation of the free supply of school facilities at Bupyeong Elementary School, and the instant rejection disposition was issued. However, on March 10, 2008, the Plaintiff entered into an agreement with the Namyang District Office of Education to contribute to the construction cost of new school facilities at Pyeongtaek Elementary School. On March 31, 2009, the Plaintiff entered into a final agreement to contribute to the change of the scale of the facilities. Accordingly, on April 22, 2009, the Plaintiff, a development project operator, had reported the commencement of the construction and progress the construction. In this case, the Plaintiff already fell under the case of gratuitous supply of school facilities as public property belonging to the special accounts for City/Do educational expenses. Accordingly, the Defendant Nam-ju District Office is obligated to refund the instant charges to the Plaintiff. Accordingly, the refusal disposition against the Plaintiff’s request for refund of the Plaintiff’s charges is unlawful.

3. Conclusion

If so, the plaintiff's primary claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the rejection disposition of this case is revoked, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kim Chang-suk (Presiding Justice)