1. Basic factual basis

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

A. In the ancient-do, Jeonnam-do and 25 lots (hereinafter collectively referred to as the “instant land”) are located around the cemetery, Dong-dong, Dong-dong, a State-designated cultural heritage asset designated by private No. 114 in 1963 (hereinafter referred to as the “instant cultural heritage asset”).

B. On July 5, 2013, in order to verify whether development activities are possible on the instant land while the Plaintiff was found to operate solar power generation business, the Plaintiff was issued a written confirmation of the land use plan on the instant land. The “whether to designate a region, district, etc.” in the said written confirmation was indicated only in the “production control area” and “livestock breeding restriction zone.” Accordingly, the Plaintiff expected to be able to install solar power generation facilities on the instant land, and concluded a sales contract to purchase the instant land at KRW 474,660,000 on July 6, 2013 (hereinafter “instant sales contract”). On the same day, the Plaintiff paid KRW 50,000 to the seller as the down payment.

C. Since then, in the process of applying for authorization and permission for the instant land, the Plaintiff became aware that installation of solar power infrastructure was impossible because the instant land falls under the “area subject to permission for alteration of current state under the Cultural Heritage Protection Act”. The Plaintiff renounced down down payment of KRW 50,000,000, and rescinded the instant sales contract.

D. On March 6, 2014, a written confirmation of land use plan of the instant land, stating the “area subject to permission for alteration of the current state according to the Cultural Heritage Protection Act”.

2. The judgment of the court below

The Plaintiff filed a claim against the Defendant for damages for the amount equivalent to the down payment of the instant sales contract on the ground that the Plaintiff violated the duty to enter the content of the “area subject to permission for alteration of the current state according to the Cultural Heritage Protection Act” in the land use plan confirmation letter of

The lower court acknowledged the following facts first. The Administrator of the Cultural Heritage Administration, on May 6, 2009, established and publicly announced the permissible standards for alteration of the current state of the surrounding land of this case, including the instant land under Article 2009-37 of the Public Notice of the Cultural Heritage Administration pursuant to Article 30(3) of the former Enforcement Rule of the Cultural Heritage Protection Act (wholly amended by Ordinance of the Ministry of Land, Infrastructure and Transport, the Ministry of Land, Transport and Maritime Affairs, the Ministry of Land, and the Ministry of Land, Transport and Maritime Affairs, the Ministry of Land, and the Ministry of Land, Transport and Maritime Affairs, the Ministry of Land, and the Ministry of Land, Infrastructure and Transport changed on February 29, 2008 on March 23, 2013; hereinafter referred to as “the Ministry of Land, Infrastructure and Transport”) on January 5, 2010, which was designated by the Ministry of Land, Transport and Maritime Affairs under Article 2009-1315 of the Land Use Regulation Act.

Based on this, the lower court rejected the Plaintiff’s claim on the following grounds: (a) the instant land constitutes “area, district, etc.” under Article 5 subparag. 3 of the Land Use Regulation Act; and (b) the effect of designation of an area subject to permission for the alteration of the current state arose from July 5, 2010, which became effective in the public notice of the said Ministry of Land, Transport and Maritime Affairs; (c) from that time, the instant land is subject to permission for the alteration of the current state, and (d) since the head of Gun did not receive any notification from the Administrator of the Cultural Heritage Administration or the Minister of Land, Infrastructure and Transport who designated the instant land as an area subject to permission for the alteration

3. Judgment of the Supreme Court

A. The relevant provisions of the Land Use Regulation Act are as follows:

1) When the head of a central administrative agency or the head of a local government establishes a new category of an area, district, etc. (hereinafter referred to as “regulation area”) subject to restrictions on the use or preservation of land by enacting or amending statutes or municipal ordinances and rules, his/her name and applicable statutes must be included in the Land Use Regulation Act, its Enforcement Decree, and a list of regulatory zones publicly notified by the Minister of Land, Infrastructure and

2) Where the head of a central administrative agency, etc. intends to designate a specific land as a regulatory area, he/she shall prepare and publicly announce a topographical map specifying the scope of the regulatory area on the topographical map indicating the land registration (Article 8(2) of the Land Use Regulation Act: Provided, That where there are certain reasons, such as where the scope of the regulatory area is directly designated in accordance with the statutes or municipal ordinances and rules without any separate designation procedure pursuant to the proviso to Article 8(2) and Article 7(3)1(b) of the Enforcement Decree of the Framework Act on the Regulation of Land Use (hereinafter “Enforcement Decree of the Land Use Regulation Act”), the designation of a regulatory area shall take effect upon public announcement of the above topographical map (Article 8(3)). The head of a central administrative agency or a local government shall notify the head of the relevant Si/Gun/Gu of the relevant topographical map of the relevant documents and the scheduled date of public announcement in advance (Article 8(8)), and the head of the relevant Si/Gun/Gu who has received such notification shall register it in the national land use information system so that ordinary citizens can know the designation of the regulatory area (Article 9(1).

Article 8(2) through (9) of the Land Use Regulation Act does not apply to a control area designated before one year has elapsed after the promulgation of the Land Use Regulation Act ( December 8, 2006), but if a topographical map is not announced by December 31, 2008, the designation of such control area becomes invalid from the following day (Article 4 of Addenda to the Land Use Regulation Act ( December 7, 2005).

B. We examine the zone subject to permission for alteration of the present state of the outer size of cultural heritage and the standard for alteration of the present state.

1) According to Article 34 subparag. 3 of the former Cultural Heritage Protection Act (wholly amended by Act No. 1000, Feb. 4, 2010; hereinafter the same) and Article 30(2) subparag. 1(a) of the former Enforcement Rule of the Cultural Heritage Protection Act (wholly amended by Act No. 76, Feb. 1, 2011; hereinafter the same), where a Mayor/Do Governor installs or expands a building or facility in an area determined by municipal ordinance after consultation with the Administrator of the Cultural Heritage Administration to protect cultural heritage from construction, which affects the preservation of the relevant State-designated cultural heritage, or is likely to affect the landscape of the cultural heritage, it shall obtain permission from the Administrator of the Cultural Heritage Administration. In each City/Do’s Ordinance on the Protection of Cultural Heritage, the scope of the area subject to permission for alteration of the current state from the outer boundary of the designated and protected zone of cultural heritage to a few m. as above, if a cultural heritage is designated, the scope of the area subject to permission for alteration of the present state within several meters automatically.

2) Upon designating State-designated cultural heritage, the Administrator of the Cultural Heritage Administration shall determine and publicly notify the specific scope of the act to be permitted within one year from the date the designation is publicly notified (Article 30(3) of the former Enforcement Rule of the Cultural Heritage Protection Act).

C. The case of the zone subject to permission for alteration of the present state of cultural properties is examined.

1) We examine the application of the Land Use Regulation Act.

The zone subject to permission for the alteration of the present external state of cultural heritage is a zone where the use of land is regulated, such as construction works that affect the preservation of cultural heritage or are likely to impair the landscape. Therefore, the zone subject to permission for the alteration of the present external state of cultural heritage is obligated to be registered on the national land use information system upon receipt of relevant notification from the head of complete Gun only when the designation as a regulatory zone is effective because it satisfies the procedural requirements prescribed in Articles 5 and 8 of the Land Use Regulation Act (see Supreme Court Decisions 2013Du10489, May 11, 2017; 2017Da202968, Oct. 18, 2019).

2) In relation to Article 5 of the Act on the Regulation of Land Use, a zone subject to permission for the alteration of the external state of cultural heritage is an area, district, etc. prescribed in the ordinances of each City/Do pursuant to the delegation of Article 34 subparag. 3 of the former Cultural Heritage Protection Act and Article 30(2)1 of the former Enforcement Rule of the Cultural Heritage Protection Act as seen earlier, and an area, district, etc. prescribed in the Ordinance of each City/Do pursuant to the delegation of other Acts and subordinate statutes. As such, “area, district, etc. prescribed by Ordinance of the Prime Minister, Ordinance of the Ministry,

The first public notice according to the enactment and enforcement of the Act on the Regulation of Land Use is the Ministry of Land, Infrastructure and Transport Notice No. 2006-182 on June 7, 2006 (the above public notice is an administrative rule supplementing statutes according to the delegation of the Act on the Regulation of Land Use, and constitutes an administrative rule supplementing statutes, and the court may detect ex officio the existence of laws and regulations as an ex officio). The list of regulatory zones listed in the above public notice includes zones subject to permission for the alteration of the current state according to the Enforcement Rule of the

3) In relation to Article 8 of the Act on the Regulation of Land Use, the instant cultural heritage was designated as State-designated cultural heritage since 1963, and the regulation on areas subject to permission for the alteration of the present state of the outer range of cultural heritage under the Cultural Heritage Protection Act was prior to the enforcement of the Act on the Regulation of Land Use. Therefore, the Administrator of the Cultural Heritage Administration, who is the head of the competent central administrative agency, shall publicly announce topographic maps on the instant cultural heritage within the time limit ( December 31, 2008) stipulated in Article 4 of the Addenda according to the enactment and enforcement of the

Furthermore, if the cultural heritage of this case is deemed to be a regulatory area upon fulfilling the above conditions, it is reasonable to view that the scope of the area subject to permission for the alteration of the current state of the outer boundary of the cultural heritage of this case automatically becomes within a certain distance from the outer boundary of the cultural heritage of this case pursuant to the Ordinance for the Protection of the Cultural Heritage of Jeonnam-do, and that it constitutes “where the scope of the area, district, etc. is directly designated pursuant to the statutes or municipal ordinances and rules without separate designation procedures,” pursuant to the proviso of Article 8(2) of the Land Use Regulation Act and Article 7(3)1(b) of the Enforcement Decree of the same Act, it is effective as a regulatory area without the need to prepare and publicly announce a topographic map. Accordingly, upon the notification of matters prescribed in Article 7(9)1 of the Enforcement Decree of the Land Use Regulation Act, etc. pursuant to the delegation of the proviso of Article 8(8) of the Land Use Regulation

D. Considering the contents of the Land Use Regulation Act and the Cultural Heritage Protection Act and relevant legal principles, the lower court’s determination (2.) is difficult to accept for the following reasons.

The lower court deemed that “No. 2009-1315 of the Notice of the Minister of Land, Infrastructure and Transport (Evidence 9) by the Minister of Land, Infrastructure and Transport on January 5, 2010,” or “No. 2009-37 of the Administrator of the Cultural Heritage Administration’s notice of May 6, 2009” (Evidence A No. 4) designated the surrounding land of the instant cultural heritage as a zone subject to permission for alteration

However, the foregoing notification by the Minister of Land, Infrastructure and Transport only lists the types of regulated areas pursuant to Article 5 of the Land Use Regulation Act, but it is difficult to regard the same specific land as the instant land as a designation of an area subject to permission for the alteration of the current state. Moreover, the foregoing notification by the Cultural Heritage Administration prescribed the permissible standards for the act within an area subject to permission for the alteration of the present state of part of the outer part of State-designated cultural heritage, including the instant cultural heritage, in accordance with Article 30(3) of the former Enforcement Rule

E. Nevertheless, the lower court rejected the Plaintiff’s claim on the erroneous premise that the notice by the said Minister of Land, Infrastructure and Transport and the Administrator of the Cultural Heritage Administration designates the surrounding land of this case as an area subject to permission for the alteration of the current state, on the ground that there was no obligation or negligence to register the national land use information system with the head of Do Do Do Do Do Gun since it failed to receive relevant notification at the time of the said notice. In so determining, the lower court erred by misapprehending the legal doctrine on zones subject to permission for alteration of the current state under Articles 5 and 8

After remanding, the lower court pointed out that it is necessary to additionally examine whether the topographical map on the instant cultural heritage has been publicly announced within the time limit under the Addenda to the Land Use Regulation Act ( December 31, 2008) and the designation of the instant cultural heritage has been maintained, and whether it has been notified of the details provided for in Article 7 (9) 1 of the Enforcement Decree of the Land Use Regulation Act concerning the areas subject to permission for the alteration of the current state of the outer range of the instant cultural heritage as well as the instant cultural heritage.

4. Conclusion

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 Noh Tae-tae (Presiding Justice)