Sick Business Co., Ltd. and one other (Plaintiffs Law Firm Cheongdam, Attorneys Doo-sung et al., Counsel for the plaintiff-appellant)

The head of Gangseo-si resin

June 10, 2010

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant's disposition of imposing the charge for compelling the performance of KRW 704,325,00 on Sick Business Co., Ltd. on December 30, 2009 and the disposition of imposing the charge for compelling the performance of KRW 1,234,093,00 on Plaintiff Sick Business, and Plaintiff 2 is revoked.

1. Details of the disposition;

A. On February 7, 2007, 207, the Plaintiff Sackra business Co., Ltd. (hereinafter “Plaintiff Co., Ltd”) and the Plaintiff 2 newly built a new house and completed the registration of ownership transfer around March 2007 with respect to each land transaction contract (hereinafter “each land of this case”), including each land of this case, and each land of this case, owned by Plaintiff 2. The land of this case is “each land of this case,” and each land of this case, each of which is “each land of this case,” and each land of this case, each of which is “each land of this case,” and each land of this case, each of which is “each land of this case,” and each land of this case, each of which is “the permission for each land transaction contract of this case” (hereinafter “the permission for each land transaction of this case”).

B. On July 25, 2007 with respect to each of the lands of this case No. 1, the defendant held that the plaintiffs did not use each of the lands of this case for the permitted purposes as a result of each on-site investigation on November 8, 2007, and on August 7, 2007, the defendant ordered the plaintiff company to use each of the lands of this case for each of the permitted purposes from August 7, 2007 to November 7 of the same year, 2007, and on November 20, 2007, from August 20, 2007 to February 20, 2008, the defendant ordered the plaintiff company to perform the duty to use each of the lands of this case for each of the permitted purposes (hereinafter "each of the orders of this case").

C. After that, on November 8, 2007, the Defendant conducted a field investigation on each of the instant lands No. 1, and rendered a prior notice of imposition of enforcement fines to the Plaintiff Company on November 13, 2007, based on the determination that the Defendant failed to perform its duty to use the land, and notified the Plaintiff Company of the prior notice of imposition of enforcement fines. Accordingly, the Plaintiffs commenced the commencement of the construction, and jointly submitted a written opinion requesting the suspension of imposition of enforcement fines. The Defendant suspended the imposition of enforcement fines on December 12,

D. On November 20, 2009, after December 2008, the completion date of the instant construction completion date, the Defendant held that the Plaintiffs did not perform their duty to use each of the instant land as a result of conducting a field investigation, and on December 2, 2009, notified the Plaintiffs of the prior notice of imposition of enforcement fines, and issued each of the instant dispositions imposing enforcement fines of KRW 1,234,093,000 on the Plaintiff Company and KRW 704,325,000 on December 30, 2009.

[Ground of recognition] Evidence Nos. 1 through 6, Evidence Nos. 1, 2-1, 2-2, and 3-2, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) Although the construction of a new house was commenced in accordance with the purpose of use for the permission of the instant land transaction contract, the construction is being delayed due to the civil petition by neighboring residents and the establishment of access roads. Therefore, the Plaintiffs do not neglect the land for speculation, but endeavor to use each of the instant land for the permitted purpose. Therefore, the Plaintiffs do not constitute a person who fails to perform the duty to use the land under Article 124-2(1) of the National Land Planning and Utilization Act (amended by Act No. 9774, Jun. 9, 2009; hereinafter “Act”).

(2) Pursuant to Article 6(5) of the Guidelines for Follow-up Use of Land for which permission for a land transaction contract has been obtained (hereinafter “Guidelines”), land for development purposes identical to each of the instant land should be first examined according to the opinion of the Ministry of Land, Transport and Maritime Affairs, such as permission for a development project, etc. However, the Defendant has reached an on-site investigation without following such procedures and reached each of the instant dispositions. Accordingly, each of the instant dispositions has procedural defects (hereinafter “main dispositions”).

(3) Each of the instant dispositions was based on a false fact-finding without implementing the relevant procedures and did not take into account the Plaintiffs’ series of measures and efforts to use each of the instant land in accordance with the purpose of use permitted for each of the instant land transaction contracts.

In other words, if the defendant reviewed the progress of each of the dispositions of this case closely after considering the opinions of the relevant departments, it could be recognized that the plaintiffs continued to proceed with the procedure for obtaining authorization, permission, etc. related to the implementation of the project of this case. In addition, according to Article 14-2 (6) of the Land Transaction Business Regulation (Ordinance No. 290 of the Ministry of Land, Transport and Maritime Affairs, July 7, 2009, hereinafter "Handling Regulation"), the issue of whether the commencement date of the project has elapsed two years from the date of acquisition of land shall be determined after excluding the period of permission, authorization, approval, etc., but each of the dispositions of this case includes the period in which the land of this case has not been used for the purpose of using each of the permissions for the land transaction contract of this case. According to Article 6 (6) 3 of the Guidelines, it is necessary to investigate whether the land for development is developed and buildings, etc. are used differently from the permitted purpose of use without considering the opinions of the relevant departments.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Judgment on the assertion No. 1

(A) According to Article 124(1) of the Act, a person who has obtained permission for a land transaction contract must use the land for the permitted purpose within a period prescribed by Presidential Decree of up to five years, unless any ground prescribed by Presidential Decree exists. The term “reasons prescribed by Presidential Decree” refers to cases falling under any subparagraph of Article 124(1) of the Enforcement Decree of the Act. According to Article 124-2(1) and (2) of the Act, the competent administrative agency may order a person who fails to perform the duty to utilize the land to a reasonable period. If the person fails to fulfill the duty to use the land within the prescribed period, the competent administrative agency may order the person who fails to perform the duty to use the land for the permitted purpose, namely, the performance of the duty to use the land, to a person who fails to perform the duty to use the land for the permitted purpose. In determining whether the person fails to perform the duty to use the land for the permitted purpose, the land transaction contract can be determined by Presidential Decree of 10/100 (see Article 27(1) of the Act).

(B) On the premise of these legal principles, the company: (a) purchased 7, 10, 11, 12, 13, 22, 23, 24, 25, 26, 5, 6, 7, 8, 10, 11, and 13 evidence; (b) according to each image of Gap's 8, 18, 19, 20, 21 evidence (including numbers) and each image of Gap's 8, 18, 19, 20 and 21 evidence; (b) it was possible for the company to conduct landscaping and construction work until now after its commencement of construction work; (c) it was allowed for the company to newly construct a new site on March 5, 207; and (d) it was allowed for the company to conduct construction work on the 29th anniversary of the construction permit on the 20th anniversary of the construction permit on the 5th anniversary of the construction permit on the 19th anniversary of the construction permit on the 20th anniversary of the construction permit.

According to the above facts, the plaintiffs seems to start the new construction work of detached houses, conduct design and landscaping work, and make efforts to build roads for construction works.

(C) On the other hand, after obtaining permission for development activities from Gap 18-6 through 15, 19-6 through 11, 20-4 through 11, 22-1, and 23-1 through 4, 25-1 through 5, and 26-1 through 11, and 9-2, the defendant presented an application for permission for development activities to the plaintiff 2 before and after the commencement of construction activities for the same purpose as the above 10-1, 20-1, 26-1, and 9-2, which were issued by the plaintiff 10-1, 200-1, 30-1, 30-2, and 10-7, which were issued by the plaintiff 1, as the result of the non-party 2's request for permission for development activities after the completion of construction activities for the same purpose as the above sub-1, 30-1, and 9-2, which were issued by the plaintiff 1, as the above construction project implementer.

According to the facts of recognition, the plaintiffs did not commence construction before the prior notice of the imposition of enforcement fines was given, and no special circumstance was found to have been conducted for construction of a detached house on each of the land of this case until the period of obligation to perform each of the instant obligations expires. It is determined that the construction works that the plaintiffs intend to construct a detached house by linking the above parts with the above parts are practically impossible until the completion of the above parts, and that the plaintiffs were forced to open the road. As alleged by the plaintiffs, the access road to the above retail store, which the plaintiffs intend to construct to use as the access road to the instant detached house, is also deemed to have been ordered to illegally perform construction works and have been ordered to suspend construction, and there is no obvious evidence supporting that the access road to the said retail store was installed for the purpose of using it as the access road to the instant detached house, as alleged by the plaintiffs.

(D) Therefore, it is determined that the Plaintiffs did not use each of the instant lands in accordance with the permitted purpose of use. Furthermore, when the mandatory period to use each of the instant lands for the permitted purpose expires, the Plaintiffs can transfer each of the instant lands to a third party. In such a case, if no enforcement fine is imposed, it would be impossible to secure the effectiveness of the permission system for land transaction contract to prevent land acquisition by a person other than the actual user and block speculative transactions. Furthermore, as otherwise alleged by the Plaintiffs, the reasons for delay of construction are due to the unreasonable performance of construction works by the Plaintiffs, and it is difficult to deem that it is impossible to use each of the instant lands for the permitted purpose due to reasons not attributable to the person who has obtained permission for the land transaction contract.

(2) Judgment on the assertion 2

It is merely an administrative rule that takes effect only within the administrative agency, and thus, it does not constitute an illegal act on the ground that each of the dispositions of this case did not comply with the procedure set forth in the guidelines. However, as seen later, it is only a matter of whether the discretionary authority has been abused or abused. Therefore, the argument 2 is without merit.

(3) Judgment on the assertion No. 3

(A) Article 6(5)5 of the Guidelines provides that “In the case of land for development, the first examination shall be conducted on the land suspected of failing to fulfill the purpose of use according to the opinion of the development project permission department (in compliance with the follow-up procedures prescribed by the relevant permission-related Acts and subordinate statutes, etc.),” and Article 14-2(5) of the Treatment Regulation provides that “If the first day of arrival is deemed not to be more than two years after the date of acquisition of the land except for the period of permission, authorization, approval, etc. under the relevant Acts and subordinate statutes, the land use plan shall be deemed to be inappropriate.” However, the above provisions provide that “development project permission, etc., or permission, authorization, approval, etc., under the relevant Acts and subordinate statutes” refers to the land subject to permission for land transaction contract or the “permission, authorization, etc., etc., under the relevant Acts and subordinate statutes, etc., under the relevant laws and subordinate statutes,” and thus, the Plaintiffs’ assertion that the aforementioned new construction permission, etc. is a new construction project-related one of the instant land is no longer asserted by the Plaintiffs.

(B) Meanwhile, as seen earlier, the Defendant committed each of the instant dispositions based on the results of the on-site investigation on each of the instant lands, and there is no evidence to deem that there was any misconception of the facts as to the results of the on-site investigation. As seen earlier, the Plaintiffs’ delay in construction to obtain permission to establish access roads to the new house of this case is attributable to the Plaintiffs. As such, the Plaintiffs’ failure to take into account such reasons for delay in construction is not attributable to the Plaintiffs. Therefore, the Plaintiffs’ assertion

(C) Ultimately, the argument ③ does not seem to be any mother or are without merit.

3. Conclusion

Thus, each claim of the plaintiffs in this case is dismissed as it is without merit.

[Attachment]

Judges Lee Jin-hun (Presiding Judge)