[1] In a case where a gas station is constructed on the pertinent land with the permission for changing the form and quality of land after the amendment of the Restitution of Development Gains Act on June 11, 1993 (=the date of completion of the development project)

[2] Whether the development charges imposed on the development project of the land located within the development restriction zone are contrary to equity or unreasonable (negative)

[1] The project implemented with the permission to change the form and quality of land under the Urban Planning Act in order to construct gas stations located in a development-restricted zone from the head of a local government constitutes "development project implemented together with the development of land, such as a housing construction project, etc. and construction of a building" under Article 8 (1) 2 of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993). If the date of the authorization for the completion of a development project is more than the date of the approval for temporary use of a building on the ground of the land to be developed, the time of termination of the imposition shall be deemed the date of the authorization for the completion of the development project under the main sentence of Article 9 (3) of the Restitution of Development Gains Act (amended by Act No. 4563

[2] As long as the development project falls under a development project under the development project under the Restitution of Development Gains Act and subordinate statutes, the development gains from the land to be developed are the development gains subject to the development charges, and the development gains are merely the compensatory damages recovered according to the price level of neighboring land, or the development gains are not subject to the development charges, because they correspond to the increases in normal land prices themselves.

[1] Article 9(3) of the Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993); Article 8(1)2 of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956, Aug. 12, 1993) / [2] Article 5 of the Restitution of Development Gains Act (amended by Act No. 4563, Jun. 11, 1993); Article 21 of the Urban Planning Act

[2] Supreme Court Decision 96Nu9324 delivered on April 25, 1997 (Gong1997Sang, 1644)

Plaintiff (Attorney Kim Dong-jin, Counsel for the plaintiff-appellant)

The head of Eunpyeong-gu Seoul Metropolitan Government

Seoul High Court Decision 95Gu36215 delivered on January 23, 1997

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

The grounds of appeal and the supplemental appellate brief submitted after the lapse of the period are examined as well.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below held that the project of this case which the plaintiff implemented with the permission of change of form and quality under the Urban Planning Act in order to construct gas stations on September 26, 1994 from the defendant in this case located within the development-restricted area constitutes "development project to develop land and build buildings together, such as housing construction projects" under Article 8 (1) 2 of the Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 13956 of Aug. 12, 1993), and where the authorization date of the completion of the development project is more than the approval date of provisional use for a building on the land to be developed, the completion date of the imposition shall be deemed as March 3, 1995, which is the date of the authorization of the completion of the development project of this case under the main sentence of Article 9 (3) of the Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993), and it shall not be deemed as the commencement date of a building on the land to be developed.

2. On the second and third grounds for appeal

As long as the development project falls under a development project prescribed in the Restitution of Development Gains-Related Acts and subordinate statutes, the development gains from the land to be developed are the development gains subject to the development charges, and the development projects were implemented following the partial cancellation of the restriction on activities in the development restriction zone, and the development gains are merely the compensatory damages recovered at the price level of neighboring land, or are not subject to the development charges as they correspond to the increases in normal market prices of neighboring land itself (see Supreme Court Decision 96Nu9324, Apr. 25, 1997).

In the same purport, the court below is just in holding that the development project for the land of this case located within the development restriction zone cannot be deemed as violating equity or unreasonable because it does not reduce the development charges, and there is no error of law in the misapprehension of legal principles as to the development project subject to the development charges.

In addition, Article 4(1)2-2 of the Enforcement Decree of the Restitution of Development Gains Act was amended by Presidential Decree No. 15398 on June 25, 1997, and Article 4(1)2-2 of the same Decree was newly established that, in the case of a project implemented with respect to the relevant land by the owner of the land at the time of designation of the relevant zone in the development-restricted zone, the development project subject to the development charges shall be limited to the area of the land subject to the development project exceeding 1,650 square meters, since the development charges in this case have been imposed prior to the enforcement of the above amended provisions, the development charges in this case

3. On the fourth ground for appeal

In light of the records and relevant statutes, the court below is just in holding that the Defendant’s selection as a comparative standard of land in determining the officially assessed individual land price of this case, which is the basis for the calculation of the land price at the time of completion of the imposition, is legitimate, and there is no error of law in misunderstanding the legal principles as to the selection of comparative standard. We also

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 Chocheon-sung (Presiding Justice)