[1] The nature of the settlement of reduction of development charges under the proviso of Article 10(1) of the former Restitution of Development Gains Act (i.e., a disposition of reduction change), and where a disposition of increase or correction is taken again after the settlement of reduction, the subject of the lawsuit (i.e., correction of the amount of increase) and whether the illegal grounds for the portion not revoked by the original disposition of reduction can be

[2] Whether to allow the recovery of defects in the defective administrative act (negative)

[3] In a case where a prior disposition of the officially assessed individual land price decision is unlawful and thus the imposition of development charges is unlawful, whether the defect of the imposition of the development charges is cured and lawful solely on the ground that the previous illegally assessed individual land price decision publicly announced through due process is identical to the previous illegally assessed individual land price decision (negative)

[1] The settlement of reduction of development charges under the proviso of Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5409 of Aug. 30, 1997) constitutes a disposition of reduction, not a disposition different from the initial disposition of reduction. In cases where a disposition of reduction or correction is made again after the settlement of reduction, the initial disposition of reduction or exemption corresponding to the portion which was not revoked by the disposition of reduction or adjustment shall be extinguished as it was absorbed into the disposition of increase or correction, and only the disposition of increase or correction shall be subject to dispute. In such a case, not only the illegality of the disposition of increase or correction, but also the illegality

[2] The remedy of defects in a defective administrative act is not permissible in principle from the perspective of the nature of the administrative act or the rule of law, and it is exceptionally permitted to the extent that it does not infringe the rights and interests of the people in order to avoid a dance of the administrative act and protect the legal stability of the parties.

[3] In a case where a prior decision on the officially assessed individual land price is unlawful and thus the imposition of development charges is deemed unlawful, the person liable for the payment of the development charges may suffer disadvantages, such as the person liable for the payment of additional charges for the unlawful disposition. Thus, the subsequent decision on the publicly announced individual land price through lawful procedures is identical to the previous decision on the officially assessed individual land price, and thus, the imposition of development charges based on the determination on the illegally assessed individual land price

[1] Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5409 of Aug. 30, 1997); Article 1 of the Administrative Litigation Act / [general administrative disposition] Articles 2 and 19 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [3] Article 10 (1) of the former Restitution of Development Gains Act (amended by Act No. 5409 of Aug. 30, 1997); Articles 1 [general administrative disposition], 2 and 19 of the Administrative Litigation Act

[1] Supreme Court Decision 91Nu9596 delivered on May 26, 1992 (Gong1992, 2051), Supreme Court Decision 93Nu837 delivered on September 28, 1993 (Gong1993Ha, 2983), Supreme Court Decision 95Nu758 delivered on November 10, 1995 (Gong1995Ha, 3952, 19999, 197Du19799 delivered on April 27, 1997 (Gong1999Sang, 1070, 1079Du13139 delivered on May 11, 199 (Gong199, 118), Supreme Court Decision 97Nu2989 delivered on May 29, 199 (Gong199, 198)

Plaintiff 1 and 16 others (Attorneys Kim Ba-young et al., Counsel for the plaintiff-appellant)

The head of Dong-gu Busan Metropolitan City

Busan High Court Decision 96Gu11631 delivered on October 29, 1999

The judgment below is reversed, and the case is remanded to Busan High Court.

1. A. The lower court determined that the first 8,833 square meters of the land of eight lots located in the Dong-gu, Busan ( Address 1 omitted) owned by the Plaintiffs (hereinafter referred to as “instant land”) was constructed on June 17, 1994 with construction permission obtained on September 7, 1994, and the land category of the instant land was changed from before and after obtaining approval for use on September 7, 1994 to miscellaneous land, and that the Defendant did not dispute as to the increase in development charges under the proviso to Article 10(1) of the former Restitution of Development Gains Act (amended by Act No. 5409 of Aug. 30, 1997; hereinafter referred to as the “Act”) and the first 4th 707,721,130 won cannot be asserted as the imposition of development charges under the proviso to Article 10(1)106 of the Act after calculating the point of time for closing the imposition of the instant land, and thus, it cannot be asserted as the first 106th 197th m.

B. However, the settlement of reduction of development charges under the proviso to Article 10 (1) of the Act constitutes an alteration of the amount of development charges, not a disposition different from the initial imposition disposition (see Supreme Court Decision 98Du19179, Apr. 27, 199). In a case where a correction disposition is again made after the settlement of reduction, the initial imposition corresponding to the portion not revoked by the settlement of reduction shall be extinguished by the correction of increase, and only the correction disposition shall be the subject of litigation. In this case, not only the illegal cause of the correction of increase but also the portion not revoked by the settlement of reduction among the initial imposition disposition (see Supreme Court Decision 97Nu16329, May 28, 199). Since the defendant in this case had again adjusted the amount of development charges after the settlement disposition, the court below erred by misapprehending the legal principles as to the imposition of development charges in this case, even though the plaintiff could have asserted the illegality of the original imposition disposition.

C. However, when the court below additionally judged the plaintiffs' allegation of illegality in the initial disposition, it is proper to determine that the plaintiffs are jointly liable for the payment of the development charges for the land of this case, since they are jointly and severally liable to pay the development charges related to the common property pursuant to Article 6 (3) of the Act and Article 25 (1) of the Framework Act on National Taxes so that the land category of the plaintiffs' land of this case is substantially changed due to the development project of this case, without asking whether the physical development acts for the land of this case were conducted or whether the land category is changed due to the change in the public

D. Therefore, the lower court’s error that did not dispute the illegality of the initial imposition disposition did not affect the judgment, and thus, this part of the grounds of appeal is not accepted.

2. On January 1, 1995, among the land in this case, the decision of the officially assessed individual land price as of January 1, 1995 with respect to 707 square meters prior to the Busan Dong-gu ( Address 2 omitted), was revoked in accordance with the Busan High Court Decision 96Gu4671, Dec. 4, 1996, and this decision became final and conclusive on July 10, 1998, and the defendant again determined and publicly announced the same amount as the previous individual land price in 1995 after due process of February 8, 1999. The court below determined that the adjustment disposition in this case was unlawful on the ground that the development charges calculated based on the newly announced individual land price as of February 1, 1995, which was based on the newly announced individual land price through due process, were cured as long as the development charges were the same amount as the development charges in this case.

However, the remedy of defects in the defective administrative act cannot be permitted in principle from the perspective of the nature of the administrative act or the rule of law, and it is allowed only exceptionally to the extent that it does not infringe on the rights and interests of the people in order to avoid the repetition of the administrative act and to protect the legal stability of the parties (see Supreme Court Decision 91Nu13274, May 8, 192). In a case where a prior decision on the officially assessed individual land price is illegal and a disposition imposing development charges based on it is illegal, the person liable for the payment of development charges may suffer disadvantages, such as where the person liable for the payment of additional charges for the unlawful disposition, if the decision on the officially assessed individual land price announced through lawful procedures is identical to the previous illegally assessed individual land price decision. Thus, the imposition of development charges based on the illegally assessed individual land price

Nevertheless, the lower court determined that the defect of the instant order for rectification based on the determination of the publicly assessed individual land price was cured, thereby misunderstanding the legal doctrine on the recovery of administrative defects, thereby adversely affecting the conclusion of the judgment. Therefore, the ground of appeal assigning this error is with merit (as the part concerning the land that should be revoked illegally in the instant order for rectification of increase, the lower court is unlawful only for the part that determined that the disposition for imposition of development charges on the land was lawful, but in this case, the lower court imposed development charges on the entire land of this case and did not examine the amount of development charges by parcel at the lower court, and thus, the lower court’s judgment

3. The court below is justified in holding that Article 5 (1) 10 of the Act, which provides that "a project accompanying a land category change, which is prescribed by the Presidential Decree," as one of the development projects subject to development charges, does not violate the principle of prohibition of comprehensive delegation, and that Article 10 (1) and (3) of the Act, which provides that the land price as of the starting point and the starting point at which the development charges are calculated shall be determined based on the officially assessed individual land price, does not infringe on fundamental rights, such as property rights of the obligor, or the excessive prohibition principle, and there is no error in the misapprehension of legal principles

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Zwon (Presiding Justice)