[1] The case holding that the court below's decision did not err in the misapprehension of the principle of pleading, etc. in holding that the development project imposed by an administrative agency falls under "development project involving land category change" under Article 4 (1) [Attachment Table 1] of the former Enforcement Decree of the Restitution of Development Gains Act, and it constitutes "project conducted by permission for diversion of farmland under the Farmland Act" which is subject to development charges under [Attachment Table 1] 10. of the same paragraph, unlike the administrative agency's grounds for disposition

[2] The purport of Article 10(5) of the Restitution of Development Gains Act

[1] Article 4 (1) [Attachment I] of the former Enforcement Decree of the Restitution of Development Gains Act (amended by Presidential Decree No. 19752 of Dec. 15, 2006) / [2] Article 10 (1) and (5) of the former Restitution of Development Gains Act (amended by Presidential Decree No. 9045 of Mar. 28, 2008)

Plaintiff (Law Firm Sejong, Attorneys double-luminous et al., Counsel for the plaintiff-appellant)

port of destination

Seoul High Court Decision 2007Nu19661 Decided December 26, 2007

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

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

1. As to the grounds of appeal Nos. 1 and 2

According to the reasoning of the judgment below, the original Defendant: (a) deemed that the development project of this case constitutes “development project involving change of land category (construction of a building or accompanied by change of land category)” under Article 5(1)10 of the former Restitution of Development Gains Act (wholly amended by Act No. 9045, Mar. 28, 2008; hereinafter “former Act”); and (b) Article 4(1) [Attachment 1] of the former Enforcement Decree of the Act (amended by Presidential Decree No. 19752, Dec. 15, 2006; and (c) imposed development charges on the Plaintiff for the reason that the original development project of this case is located outside the urban planning zone; (d) it is difficult to view that the development project of this case is subject to the imposition of development charges under Article 4(1)3 of the former Enforcement Decree of the Farmland Act; and (e) it constitutes a violation of the former Enforcement Decree’s Ordinance No. 1 of the Farmland Act’s new usage and use of the same. 4.

Meanwhile, while adding or modifying the grounds for disposition on the development charges of this case in the written reply of the court below, the defendant argued that the determination of whether the development charges are subject to imposition should be made based on the permission for change of each farmland of this case (record 402 pages). In addition, in an appeal litigation seeking the cancellation of administrative dispositions, the disposition agency may claim for addition or alteration of other reasons to the extent that it is deemed identical in the grounds for the initial disposition and the basic factual relations.

In light of the records and relevant statutes, in this case, the defendant added or changed the factual basis, which serves as the basis for legal evaluation, to the extent identical, and based on this, it is justifiable to determine that the court below falls under the subject of the imposition of development charges as prescribed by Article 4(1) [Attachment 1] of the Enforcement Decree of the Development Project Act. In so doing, there is no error of misapprehending the legal principles as to the violation of the principle of pleading, the deviation of ex officio limits, and the addition or modification

2. As to the third ground for appeal

Article 10 (1) of the former Act provides that “The land price at the time of completion pursuant to the provisions of Article 8 (1) of the former Act shall be calculated by adding the increases in normal land prices from January 1 of the relevant year to the end of imposition” to the value calculated by the comparative table under the provisions of Article 9 (2) of the Public Notice of Values and Appraisal of Real Estate Act on the basis of the officially announced land price of the reference land whose land to be imposed at the time of completion of imposition and the current use are the most similar, and Article 10 (5) of the former Act provides that “in calculating the land price at the time of completion and the starting price of imposition under the provisions of paragraphs (1) and (3) of the same Article, if there is no publicly announced individual land price at the time of completion, it shall be calculated by the method as determined by the Ordinance of the Ministry of Construction and Transportation.” According to each of the above provisions, Article 10 (5) of the former Act provides that if there is no officially assessed individual land price at the time of completion, it shall not be interpreted to the oppositely assessed individual land price.

The court below is just in calculating the land price of this case on the basis of the officially announced land price of reference land most similar to the land use status of this case under Article 10 (1) of the former Act, and there is no error of law by misapprehending the legal principles as to the calculation of land price at the time of completion of development charges, as

The Supreme Court Decision cited in the ground of appeal by the Plaintiff is a matter of the former Act on the Restitution of Development Gains before the amendment by Act No. 5409 of Aug. 30, 1997, and thus it is inappropriate to invoke the case.

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 Ji-hyung (Presiding Justice)