Whether “a person engaged in development activities” under Article 18(1) of the Addenda of the National Land Planning and Utilization Act (amended by February 4, 2002) includes a person who has already obtained necessary authorization, permission, etc. under the relevant Acts and subordinate statutes at the time of enforcement of the National Land Planning and Utilization Act (affirmative)

Article 18(1) of the Addenda to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) (hereinafter “Non-Rules”) (hereinafter “National Land Planning and Utilization Act”) provides that activities falling under change of the form and quality of land (excluding change of the form and quality of land for farming) under the National Land Planning Act (hereinafter “development activities”), which are prescribed by the Presidential Decree; however, the legislative intent is to protect the vested rights of those who have already obtained authorization, permission, etc. under other Acts and subordinate statutes, such as the Farmland Act, and the Addenda to the National Land Planning and Utilization Act (Article 11 subparag. 5) provides that when permission for development activities is granted for an area within the urban planning zone pursuant to the Urban Planning Act, permission for development activities is deemed granted pursuant to the previous Urban Planning Act (Article 10) and is deemed to have been granted permission for development activities pursuant to the National Land Planning and Utilization Act (Article 11 subparag. 5), and thus, it is reasonable to protect the person who already formed development activities or status and respect a certain status already formed at the time of the implementation of the National Land Planning Act.

Article 56(1)2 of the National Land Planning and Utilization Act; Article 10, Article 11 subparag. 5, and Article 18(1) of the Addenda of the National Land Planning and Utilization Act; Article 51 subparag. 3 (see current Article 51(1)3) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 23718, Apr. 10, 2012) (see current Article 51(1)3)

Plaintiff

Korea Land and Housing Corporation (Law Firm Doll, Attorneys Gyeong-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu35356 decided November 6, 2012

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 56(1)2 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that a person who intends to engage in an act prescribed by the Presidential Decree (hereinafter “development act”) that falls under the alteration of the form and quality of land (excluding the alteration of the form and quality of land for cultivation) shall obtain permission from the Special Metropolitan City Mayor, etc.; Article 51 subparag. 3 of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) enacted by Presidential Decree No. 17816, Dec. 26, 2002; Article 51 subparag. 1 of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) provides that a person who intends to engage in an act falling under the alteration of the form and quality of land by means of cutting, raising, suspending, packing, etc. the form and quality of land means a reclamation act of public waters, and Article 56(1)2 of the Addenda of the National Land Planning Act (hereinafter “Enforcement Decree of the National Land Planning Act”).

The supplementary provisions of this case protect those who intend to engage in development activities by respecting specific facts and legal status already formed at the time of the enforcement of the National Land Planning and Utilization Act, in full view of the fact that the legislative purpose of protecting the vested rights of those who have already obtained permission under other Acts and subordinate statutes, such as the Farmland Act, and the supplementary provisions of the National Land Planning and Utilization Act (Article 11 subparagraph 5) is to be applied for permission under the former Urban Planning Act (Article 11 subparagraph 5). In the event that permission for development is obtained under the National Land Planning and Utilization Act with respect to an area within an urban planning zone pursuant to the National Land Planning Act, the supplementary provisions of this case protect those who are deemed to have already been obtained permission for development pursuant to the National Land Planning and Utilization Act (Article 10). Thus, the supplementary provisions of this case also protect those who intend to engage in development activities by respecting specific and physical development activities at the time of the enforcement of the National Land Planning and Utilization Act. In addition, the "person who is engaged in development activities" as stipulated in the supplementary provisions of this case should also be included

In full view of the adopted evidence, the lower court determined that the Plaintiff’s farmland conversion permission under Article 36 of the former Farmland Act (amended by Act No. 6793, Dec. 18, 2002; Act No. 6793, Jan. 1, 2003; Act No. 6793, Jan. 1, 2003); and that the Plaintiff paid the farmland creation cost on March 19, 2003, which was the enforcement date of the National Land Planning Act, and obtained the farmland conversion permission, and changed the form and quality of the instant land after obtaining the farmland conversion permission from the head of Yangju-si; at the time of the enforcement of the National Land Planning Act, the “person who obtained the permission for changing the form and quality of the instant land” constitutes “a person engaged in development activities” under the Addenda of the National Land Planning Act, and cannot be deemed as a person who conducts development activities only “the commencement of the change of land form and quality.”

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the scope of application of Article 56(1)2 of the National Land Planning and Utilization Act, Article 51 subparag. 3 of the Enforcement Decree

2. As to the grounds of appeal Nos. 2 and 3

According to Article 70(2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 2011; hereinafter “Land Compensation Act”), Article 38 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 24544, May 28, 2013; hereinafter “Enforcement Decree of the Land Compensation Act”), the amount of compensation for land shall be calculated by taking into account the actual use at the time of the price and objective situation by general use, such as temporary use, such as temporary use, and subjective value and special use of land owned by landowners or persons concerned at the time of the price considering the surrounding environment, and the land should not be considered. Moreover, with respect to a building without permission or reporting on changes in the form and quality of land without permission or reporting under the Building Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 27, 2012).

Meanwhile, a change in the form and quality of land means an act of changing the form and quality of land by cutting, raising, leveling, or paving the ground and reclamation of public waters (Article 51 subparag. 3 of the Enforcement Decree of the National Land Planning Act), and requires that the form and quality of land be de facto changed into external form and that it is difficult to restore the land due to the change, but there is no need to undergo a completion inspection as to permission for changing the form and quality or to change the land category of land (see Supreme Court Decision 2012Du300, Jun. 13, 2013

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following: (a) the intermediate part of the instant land, the total area of which is 1,000 square meters, is a steel structure and a prefabricated-type building, the floor area of which is about 101.8 square meters (hereinafter “instant temporary building”); and (b) the part of the instant land, other than the instant temporary building site, is packed with concrete with a size of 16 square meters, and the remainder is soil or stone; and (c) the Plaintiff did not obtain a building permit or file a building report in relation to the construction of the instant temporary building.

Examining these facts in light of the contents and legal principles of the relevant statutes as seen earlier, since the instant temporary building constitutes an unauthorized building, etc., it is deemed that the current state of use at the time when the instant temporary building was constructed is presented and assessed. However, as seen earlier, the change of the form and quality of the instant land, the land category of which is the entire land category, is lawful and lawful, and thus, it shall

In the same purport, the lower court is justifiable to have rejected the Defendant’s assertion that the instant land should be evaluated as a whole, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the principle of evaluation of present status as stipulated in Article 70(2) of the Land Compensation Act

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.

Justices Lee In-bok (Presiding Justice)