A. Whether the restriction on construction by administrative guidelines and administrative guidance constitutes a ground for exclusion of idle land, which is a restriction on use under statutes

(b) The case holding that if a construction restriction on a lot of land and a measure to restrain development activities were conducted by administrative guidelines or administrative guidance in the course of formulating an urban planning to be implemented within the relevant zone, it cannot be concluded that the use of land under Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act does not constitute a case where the use of land under Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act is not prohibited or restricted even if the landowner did not have filed an application for authorization

A. Article 8(3) of the Land Excess Profit Tax Act and Article 23 subparag. 1 of the Enforcement Decree of the same Act provide that “Where the use of land is prohibited or restricted by the provisions of Acts and subordinate statutes after the acquisition of land” includes cases where the use of land is prohibited or restricted by the provisions of Acts and subordinate statutes, even though the use of land is not directly prohibited or restricted by the provisions of the Acts and subordinate statutes itself, because administrative agencies do not form a whole building permission as part

B. The case holding that if a construction restriction on a lot of land and a measure to restrain development activities were conducted by administrative guidelines or administrative guidance in the course of formulating an urban planning to be implemented within the zone, even if the landowner did not have filed an application for authorization or permission to use the land in compliance with the intended purpose, and there were some authorization or permission on another parcel of land within the zone, it cannot be concluded that the use of the land under Article 23 subparagraph 1 of the Enforcement Decree of the same Act does not constitute a case where

Article 8(3) of the Land Excess Profits Tax Act; Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Profits Tax Act

A. Supreme Court Decision 93Nu2995 delivered on January 25, 1994 (Gong1994Sang, 848) 93Nu17591 delivered on March 25, 1994 (Gong194Sang, 1367)

Plaintiff

The Director of Incheon Tax Office

Seoul High Court Decision 92Gu22536 delivered on October 7, 1993

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

The grounds of appeal are examined.

(1) On Aug. 2, 198, when the Plaintiff and the designated parties jointly acquired the instant land on Aug. 2, 198, and the instant land was incorporated into Incheon Special Metropolitan City on Jan. 4, 1989, the Incheon Special Metropolitan City, including the instant land, would make it difficult for Incheon Special Metropolitan City to achieve its original purpose when various development activities such as the creation of an integrated ocean tourism complex to prepare for the construction of an open-air route with respect to the Han River. In order to prevent speculation suppression and residents’ property damage in advance, the Plaintiffs were established with the administrative guidelines within the scope of Jan. 21, 1989 with the intention of preventing development activities until the determination of development plans and urban planning. According to the above measures, the Plaintiff’s application for permission to divert the development activities for farming, livestock, fishery, and living environment improvement by the existing residents, but the authorization and permission under individual laws such as the Building Act should be prevented, as far as possible, and the Plaintiffs were not able to file an application for permission to permit development activities on the instant land.

(2) However, Article 8(3) of the Land Excess Profit Tax Act and Article 23 subparag. 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13198, Dec. 31, 1990; hereinafter the same) provide that “Where the use of land is prohibited or restricted by the provisions of the Acts and subordinate statutes after the acquisition of the land,” it is a view that the provision of the Acts and subordinate statutes itself does not directly prohibit or restrict the use of the land, but it includes cases where the use of land is prohibited or restricted by the administrative agency as part of administrative action by the authority provided in the Acts and subordinate statutes (see, e.g., Supreme Court Decision 93Nu1893, Jan. 11, 1994; 93Nu1860, Jan. 15, 1994; 93Nu7891, May 10, 1994).

In light of the records, it is reasonable to view that the land of this case constitutes "where the use is prohibited or restricted by the provisions of laws and regulations" under Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act, unless there are special circumstances, the land of this case constitutes "where the use is prohibited or restricted by the provisions of laws and regulations" under Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act in the process of formulating urban planning to be implemented by the head of Incheon Special Metropolitan City, Metropolitan City, or the head of Incheon Metropolitan City, in accordance with the urban planning zone under his jurisdiction. Furthermore, even if the authorization and permission was granted after the execution of the above measures as stated by the court below, it is difficult to conclude that the land of this case was prohibited by the full prohibition period (2 years) and the area of the land of this case or the area of the land of this case.

(3) Therefore, the court below erred by misapprehending the legal principles as to "where the use is prohibited or restricted by the provisions of Acts and subordinate statutes" under Article 8 (3) of the Land Excess Profit Tax Act and Article 23 (1) of the Enforcement Decree of the same Act, which did not properly examine, and it is clear that the above illegality has affected the conclusion of the judgment. Therefore, the ground for appeal pointing this out has merit.

(4) Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)