Korea Land and Housing Corporation (Law Firm Apex et al., Counsel for the plaintiff-appellant)

Busan City and one other (Law Firm Doe, Attorneys Ha Chang-jin et al., Counsel for the plaintiff-appellant)

October 17, 2014

Incheon District Court Decision 2013Guhap10353 Decided August 23, 2013

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. The plaintiff's claim against the defendants falling under the above revocation part is all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The imposition disposition of KRW 750,794,650 against the plaintiff on January 10, 2013 shall be revoked. The defendant Seocheon-si shall pay to the plaintiff 750,794,650 the amount calculated by the rate of 5% per annum from March 4, 2013 to the delivery date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of full payment (the first instance court dismissed part of the claim for interest or delay damages among the plaintiff's claims against the defendant Seocheon-si, but it was excluded from the object of the trial of this court).

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. In accordance with Article 4 of the former Act on Special Measures for the Construction, etc. of National Rental Housing (amended by Act No. 9511, Mar. 20, 2009; hereinafter “National Rental Housing Construction Act”), the Plaintiff was designated as a project implementer of a development project for the national rental housing complex for inlet-bak rental housing (hereinafter “instant project”).

B. On January 10, 2013, Defendantbucheon-gu: (a) imposed KRW 756,794,650 on the Plaintiff’s 123 households of general sale of detached houses in the Bupyeong-gu Park District supplied by the Plaintiff pursuant to Articles 5(1) and 5-2 of the Act on Special Cases concerning the Acquisition, etc. of School Sites (hereinafter “Special Act on the Acquisition, etc. of School Sites”); (b) reduced or corrected the charges for school sites at KRW 750,794,650 on July 7, 2013 (hereinafter “instant disposition”).

C. On March 4, 2013, the Plaintiff paid KRW 750,794,650 of the above charges to Defendant father-si.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The statutory interpretation that serves as the basis for the imposition of charges for school sites shall be strict and shall not be extensively interpreted or analogical interpretation. Development projects subject to the Act on Special Cases concerning School Sites are projects implemented pursuant to the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act (hereinafter “Building Act, etc.”) and do not include projects implemented pursuant to the former Act on the Construction of National Rental Housing. Therefore, the instant disposition imposing charges for school sites under the former Act on Special Cases concerning School Sites is unlawful.

In addition, on the premise that the instant disposition is lawful, KRW 750,794,650 paid by the Plaintiff constitutes unjust enrichment and thus, it must be returned to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Even if the provisions of an Act stipulate the requirements for imposing and collecting taxes or charges, the provisions of an Act or an order or rule pursuant to the delegation thereof may cause arbitrary interpretation and enforcement of the imposing authority if the contents of the provisions are excessively abstract and unclear, so the provisions of an Act or an order or rule pursuant to the delegation thereof shall be meaningful and clear. However, since the provisions of an Act have generality and abstractness, their meaning can be embodied and clarified through the interpretation as a supplementary action of judges. Therefore, if the meaning of the provisions of an Act or a charge can clearly be clarified in light of the legislative intent, overall structure and contents of the relevant Act and subordinate statutes, it cannot be said that such a case lacks clarity (see, e.g., Supreme Court Decision 2007Du9884, Oct. 26, 2007).

(2) Article 5(1) of the Act on Special Cases concerning the Construction of School Sites provides that “A Mayor/Do Governor may impose and collect charges on a person who develops and sells land to construct a detached house in an area of “development project” or sells multi-family housing. Article 2 Subparag. 2 of the Act on Special Cases concerning the Construction of School Sites provides that “Development Project” means a project to create and develop land for housing construction exceeding 100 households or a project to build a multi-family housing among projects implemented pursuant to the Building Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Act, the Housing Act, the Housing Site Development Promotion Act, and the Industrial Sites and Development Act.” Since the Plaintiff is disputing that the instant project does not fall under each of the projects listed in the said provisions, it

According to Article 23(4) and (6) of the former Act on the Construction of Rental Housing, when an implementer has obtained approval of a business plan on national rental housing, it is deemed that he/she obtained a building permit under the Building Act, designation of an urban development zone under the Urban Development Act, and permission for acts under the Housing Site Development Promotion Act. Even if there are such legal provisions on authorization and permission, the requirements prescribed by the Building Act, the Urban Development Act, and the Housing Site Development Promotion Act should be satisfied in order to carry on the instant project under the former Act. Therefore, it cannot be deemed that the substance of the instant project is different from the construction project under the Building Act, the Urban Development Act, and the Housing Site Development Promotion Act. Therefore, it is reasonable to deem that the instant project constitutes a development project listed in subparagraph 2 of Article 2 of the

In addition, Article 5(1)2 of the Act on Special Cases concerning the Construction of Housing Units lists “where rental housing is sold in lots” in exceptional cases where it is impossible to impose and collect school site charges. This purport is to stipulate that a business including the sale of rental housing, such as a business under the former Act on the Construction of Rental Housing, is an exception to cases where a business that is subject to the imposition of school site charges, is for lease purposes, and is planned to be subject to the imposition of school site charges. Even if a business under the former Act on the Construction of Rental Housing is not explicitly listed, it can serve as a literary basis for the legislator to read his/her intent to regulate it.

Furthermore, according to Article 40-5(1) of the Special Act on the Construction of Public Housing, Etc. (hereinafter “Public Housing Construction Act”), the title of which has been changed through the successive amendment of the former Act on the Construction of Public Housing (hereinafter “Public Housing”), the implementer of a public housing project under Article 40-2(1) may choose not to develop and procure school sites after hearing the opinion of the superintendent of education, notwithstanding Article 3 of the Special Act on the Special Cases concerning the Construction of School Sites, notwithstanding the provisions of Article 3 of the former Act on the Special Cases concerning the Construction of Public Housing. The reasons for the provision are as follows: (a) on the premise that the Special Act on the Special Cases concerning the Construction of School Sites for Development Projects under the Public Housing Construction Act is applied in principle in accordance with the former Act on the Special Cases concerning the Construction of Housing Sites for Public Housing; (b) on the premise that such amendment is included in a development project subject to the former Act on the Special Cases concerning the Construction of Housing Sites for Public Housing.

Therefore, it is judged that the project of this case under the former Act on the Construction of Rental Housing corresponds to the project implemented in accordance with the Building Act, the Urban Development Act and the Housing Site Development Promotion Act, which is the subject development project under Article 2 subparagraph 2 of the Act on Special Cases concerning School Sites.

(3) In addition, considering the legislative intent that appears by the relevant laws and regulations, and the following circumstances, it is more apparent that the instant development project implemented under the former Act on the Construction of Rental Housing is included in the development project subject to the Act on Special Cases of School Sites.

(1) The establishment and extension of schools in order to meet the demand for school attendance formed in a short period in the development area where the development project is underway is to secure infrastructure in the development area, and the imposition of school site charges on the operator of the development project to appropriate the relevant finances in the Act on Special Cases of School Sites has induced the need for securing such school facilities (see Constitutional Court Order 201Hun-Ga32, Jul. 25, 2013). The former Act on the Construction of Rental Housing contributes to the residential stability of low-income people and further plans for large-scale housing development and construction of housing complexes for the purpose of contributing to the improvement of housing for the people, and thus, the need for securing school facilities even during the implementation process under the former Act on the Construction

② Article 1 of the Building Act provides that “The Housing Act shall apply to matters not prescribed by this Act concerning the construction of national rental housing complex” (Article 1 of the Building Act); the Housing Act provides for matters concerning the construction, supply, and management of housing and the raising, operation, etc. of funds therefor (Article 1 of the Housing Act); the Housing Site Development Promotion Act has the characteristics of general law (Article 1 of the Housing Site Development Promotion Act) and does not provide for special cases concerning the acquisition, development, supply, and management, etc. of housing sites necessary for housing construction only for specific projects. Article 22 of the former Act provides that “The Housing Site Development Promotion Act shall apply to matters not prescribed by this Act concerning the construction of national rental housing complex,” and Article 26 of the same Act provides that “The former Act on the Construction of National Rental Housing shall apply the Housing Site Development Promotion Act and the Housing Act shall apply to the construction of national rental housing. According to the purport and language of the aforementioned Act, the former Act on the Construction of Rental Housing shall additionally apply to the housing Development Promotion Act and the Housing Act shall be based upon the price available to schools under the Housing Development Promotion Act or the Housing Act.

③ Article 5(1)1 of the Act on Special Cases concerning the Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Act on Special Cases concerning the Acquisition of and Compensation for Land, etc. for Public Works Projects”) lists the cases of selling a housing site for relocation or a house for relocation under the “Act on Special Cases concerning the Acquisition of and Compensation for Land, etc. for Public Works Projects”) in exceptional cases where charges for school sites cannot be imposed and collected. This premises that the case is originally subject to the Act on Special Cases concerning the Development of Development Projects under Article 2 subparag. 2 of the Act on Special Cases concerning the Development Projects of School Sites. However, it is understood that the Act on Special Cases concerning the Development of Land, etc. for School Sites does not explicitly stipulate the projects implemented under the Act on Special Cases concerning the Development Projects under Article 2 subparag. 2 of the Act on Special Cases concerning the Development of Land, etc. for Public Works Projects. Nevertheless, even if a housing site for relocation or relocation is sold

④ Article 5(4)3 of the Act on Special Cases concerning the Provision of School Sites stipulates that “The implementation of a development project for the purpose of which demand for attending welfare facilities for the aged under Article 32 of the Welfare of the Aged Act does not arise.” Article 32 of the Building Act does not provide for the implementation of a welfare house for the aged. Article 32 of the Welfare of the Aged Act provides that “Except as otherwise provided for in this Act, the relevant provisions of the Housing Act shall apply mutatis mutandis to the installation, management, supply, etc. of welfare facilities for the aged” in paragraph (3) of the same Article. It is understood that the Act on Special Cases concerning the Provision of School Sites for the Welfare of the Aged Act applies first to welfare facilities for the aged under the Welfare of the Aged Act is the same as the development project under the Housing Act.

(5) In addition, Article 20 of the former Act on the Construction of National Rental Housing provides for the reduction of and exemption from various charges imposed on the construction project of national rental housing, but no school site charges are listed as the charges subject to such reduction

(4) Judgment on the Plaintiff’s assertion

(A) Regarding the legal nature of an authorized or permitted legal fiction

The plaintiff asserts that, in a case where the Building Act, which provides for matters concerning the main authorization and permission, provides that when the main authorization and permission are obtained under the Urban Planning Act, it shall be deemed that the main authorization and permission is obtained under the Urban Planning Act, and that all other Acts under the premise that the authorization and permission has been obtained under the Urban Planning Act are not applied (see Supreme Court Decision 2004Da19715, Jul. 22, 2004). The plaintiff asserts that the business nature under the former Act on the Construction of Rental Housing does not change from the business nature under the Building Act, etc., or that other provisions, such as the Building Act, are not applied.

However, in this case, the issue is not whether other specific provisions, such as the Building Act, are applied to the instant business, but whether the substance of the instant business is substantially identical to the development project of the Building Act, etc. In light of the contents and procedures of the legal fiction of authorization and permission, etc. as seen earlier, if the authorization and permission of the Building Act, etc. is deemed to apply under the former Act on the Construction of Rental Housing, the substance of the development project pursuant to the Building Act, etc. shall be deemed to be included in the subject of regulation under Article 2 subparag. 2 of the Act on Special Cases concerning the Construction of Building Sites, etc., even if some of the provisions of the Building Act, are not applicable.

(B) Claim concerning the process of amendment to the Act on Special Cases concerning School Sites

The plaintiff argues that although the Act on Special Cases concerning the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, "Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents," and "Act on the Development of Industrial Sites and Development" have provisions on the legal fiction of authorization and permission, the amendment of Article 2 subparagraph 2 of the Act on Special Cases concerning the Development of Housing, Building Act, and Housing Site Development Promotion, it is included in the scope of application through the amendment of Article 2 subparagraph 2 of the Act on Special Cases concerning the Development of School Sites.

However, as seen above, the Special Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents or the Industrial Sites and Development Promotion Act takes its own position to regard the development projects, such as the Housing Act, the Housing Site Development Promotion Act, and the substance thereof, as subject to the application of the Building Act, even if the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents or the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents does not have any provision on the application of the Housing Act, the Housing Act, the Housing Site Development Promotion Act,

D. Sub-determination

Therefore, since the instant project under the former Act is included in the project subject to the imposition of the school site charge under the Act on Special Cases concerning the Construction of Housing Units, the instant disposition by the Defendant Seocheon City is lawful. In addition, the Plaintiff’s claim for return of unjust enrichment against the Defendant Seocheon City premised on the illegality of the instant disposition is groundless.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed in its entirety as it is without merit, and since the part against the defendants in the judgment of the court of first instance is unfair with different conclusions, it shall be revoked, and all of the plaintiff's claim corresponding to this part shall be dismissed and it shall be decided as per Disposition by the court below

[Attachment]

Judges Cho Jong-tae (Presiding Judge)