[1] Whether a case where a person who acquired land by obtaining permission for a land transaction contract among the types of violation of the obligation to use land under Article 124-3 (3) of the Enforcement Decree of the National Land Planning and Utilization Act includes a case where the person was unable to use the land for the purpose of permission and neglected the land for the purpose of permission (affirmative)

[2] Whether an administrative agency has discretion to determine the amount different from the guidelines for imposing a non-performance penalty imposed on a person who violates a land use obligation under Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act (negative)

[1] Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act provides that the amount of a non-performance penalty for each type shall be divided into four types: “The amount equivalent to 10/100, 7/100 of the acquisition value of land” and “an amount equivalent to 5/100, 7/100 of the acquisition value of land” by classifying each type into four types, such as “the case where a person who acquired land by obtaining permission for a land transaction contract for a type violating the obligation of land use fails to use the land for the original purpose without direct use,” “the case where the person leases land without direct use,” “the case

Of them, it is reasonable to view that “where a person fails to use for the original purpose and neglects to use it for the purpose of permission” includes not only the case where the person fails to use it for the purpose of permission but also the case where the person stops and leaves it for the purpose of permission.

[2] In light of the structure, form, and content of the provision regarding the non-performance of obligation to use land in accordance with Article 124-2(1) and (2) of the National Land Planning and Utilization Act and Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “National Land Planning and Utilization Act”), the criteria for imposing a non-performance penalty under the National Land Planning and Utilization Act and the Enforcement Decree of the National Land Planning and Utilization Act are not merely setting the upper limit, but also setting a specific amount calculated by the type of violation, and thus, the administrative agency has no discretion to determine the amount of non-performance penalty.

[1] Article 124-2 of the National Land Planning and Utilization Act, Article 124-3 (3) of the Enforcement Decree of the National Land Planning and Utilization Act / [2] Article 124-2 of the National Land Planning and Utilization Act, Article 124-3 (3) of the Enforcement Decree of the National Land Planning and Utilization Act, Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm Uniform, Attorneys Choi Sung-jin et al., Counsel for the plaintiff-appellant)

The head of Silsan-si, Silyang-si

Seoul High Court Decision 2012Nu29419 decided April 17, 2013

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

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined.

1. Regarding ground of appeal No. 1

A. Article 124-2 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “the head of a Si/Gun/Gu may order a person who fails to perform his/her duty to utilize land under Article 124(1) to perform such duty for a reasonable period of time (Paragraph 1). Where an implementation order is not fulfilled within that period, a enforcement fine of an amount prescribed by Presidential Decree within the scope of 10/100 of the acquisition value of the land shall be imposed (Paragraph 2).” Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree”) provides that “where a person who acquired land by obtaining permission for a land transaction contract in violation of the duty to use land fails to use the land for the original purpose”, “where the land is leased without direct use for the original purpose”, “where the land is modified without the approval of an administrative agency,” and “other cases” shall be classified into four types, and the amount of enforcement fine shall be determined by the amount equivalent to 0/100,50% of the acquisition value of the land.”

It is reasonable to view that “the case of neglect without using the original purpose” includes not only the case of neglect without using it for the purpose of permission, but also the case of suspension and neglect while using it for the purpose of permission.

B. Upon citing the reasoning of the judgment of the court of first instance, the court below deemed that the Plaintiff neglected the instant land without using the instant land that was permitted for land transaction contract from the Defendant for the permitted purpose, and even during the period specified in the Defendant’s implementation order. In light of the above legal principles and records, the court below’s aforementioned determination is just and acceptable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on Article 124-3

2. Regarding ground of appeal No. 2

A. In light of the structure, form, and content of the provisions of the National Land Planning and Utilization Act and the Enforcement Decree thereof, such as the provision regarding the performance of the obligation to use land by classifying the violation of the obligation to use land in the statutes itself and the discrimination of enforcement fines by type, etc., the criteria for imposing enforcement fines under the National Land Planning and Utilization Act and the Enforcement Decree thereof are not merely setting the upper limit, but it is not merely setting a specific amount calculated by type of violation, and thus, the administrative

B. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court is justifiable to have rejected the Plaintiff’s assertion that the instant disposition of compelling execution excessively exceeds the amount of the instant charges for compelling execution on the grounds that the Defendant did not have discretion to decide the amount of charges for compelling execution different from that stipulated in the law as above. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine

3. Conclusion

Therefore, the appeal is dismissed, and the 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 Kim Shin (Presiding Justice)