1. A;

2. B

3. C.

The receiver of the Dongyang Construction Industry, a rehabilitation company, 0

Dongyang Construction Industry, Inc.

1. Regarding the plaintiffs' grounds of appeal

(1) If an administrative disposition on the first ground of appeal intends to be deemed null and void as a matter of course, it should be objectively obvious that there is an unlawful ground. If a defect is serious or clear, the purpose, meaning, function, etc. of the relevant law should be examined from a teleological perspective, and a reasonable consideration should be given on the specificity of the specific case itself (see Supreme Court Decision 20032403, Nov. 26, 2004). Meanwhile, Article 28 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter referred to as the “former National Land Planning Act”) provides that the head of the relevant local government shall hear the opinions of the residents when formulating an urban management plan, and that matters necessary therefor shall be determined by ordinances of the relevant local government in accordance with the standards prescribed by Presidential Decree, and that the purpose of the aforementioned Act is to rationally regulate the opinions of the residents and to secure the opinions of interested parties of the relevant local government, and Article 28 of the former Enforcement Decree of the National Land Planning Act (amended by Presidential Decree No. 20.

The lower court determined that the instant urban management plan decision cannot be deemed null and void solely on the ground that the Defendant did not notify the Plaintiffs of the fact that the instant land owned by the Plaintiffs was included in the urban management plan, as prescribed by the urban planning ordinance of Namyang-si, in determining the instant urban management plan, in light of the following: (a) the Defendant implemented the procedures for hearing opinions of the City Council, hearing opinions of residents, and consultation with related agencies as prescribed by the former National Land Planning Act, and decided on the instant urban management plan through deliberation by the urban planning committee; and (b) the public notice was published for the perusal of relevant documents at two or more daily newspapers, the

In light of the above provisions and legal principles, as long as the method of hearing residents’ opinions under the former National Land Planning Act and the Enforcement Decree of the same Act as the judgment of the court below was observed, even if the defendant did not notify the plaintiffs who were landowners of the incorporation of the instant land in the process of formulating the instant urban management plan, it cannot be deemed that the defect is serious and obvious. Therefore, the above judgment of the court below is justifiable. There were no errors in the misapprehension of legal principles as to procedural defects which are the grounds for invalidation of administrative disposition.

(2) As to the ground of appeal No. 2, the so-called administrative rules or internal guidelines issued by a superior administrative agency to a subordinate administrative agency on the business process guidelines or the criteria for the interpretation and application of statutes are generally effective only within the administrative organization, and do not have external binding force. Thus, the administrative disposition is not immediately unlawful merely because it violated the administrative rules or internal guidelines.

(See Supreme Court Decision 2009Du7967 Decided December 24, 2009).

The court below held that, in light of the fact that the "urban management planning cannot be modified within five years from the date of determination in principle," the content of the guidelines for formulating the urban management planning (Ordinance No. 603 of the Ministry of Land, Transport and Maritime Affairs) is stipulated without delegation by the former National Land Planning Act or its Enforcement Decree, and is not externally effective and binding to the public or the court, and that the above guidelines provide that "where the proposal for formulating the urban planning facilities of residents is appropriate, the urban management plan for the urban planning facilities may be modified within five years, within five years," and that the defendant decided to allocate the urban management map of this case in accordance with the proposal for formulating the urban management plan of the defendant auxiliary intervenor (hereinafter referred to as the "participating") on April 5, 2010, it cannot be deemed unlawful or null and void because the defendant decided to allocate the director's urban management plan within five years from the date of the district unit planning.

Examining the reasoning and records of the lower judgment in accordance with the aforementioned legal doctrine, the said determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the requirements for and invalidation of an urban

(3) As to the grounds of appeal Nos. 3 and 4

For reasons indicated in its holding, the lower court determined that the Defendant’s cancellation of the site of the instant neighboring park in the Gun Park area and the determination of the instant urban management planning cannot be deemed null and void due to any defect that deviates from or abused discretion in making the determination of the instant urban management planning, or that the defect thereof is serious and obvious. Examining the record in accordance with the relevant legal doctrine, the lower court’s aforementioned determination is justifiable. In so doing, there were no errors by misapprehending the legal doctrine on deviation, abuse,

2. As to the Defendant’s ground of appeal

(1) The lower court determined that the instant designation and authorization disposition was unlawful on the ground that the Intervenor’s failure to take any particular measures such as ordering the discontinuance of construction, and the Defendant’s designation and authorization disposition of this case with the content that the Intervenor designated the Intervenor as an executor and authorized the implementation plan without obtaining designation of the executor or authorization of the implementation plan was clearly unreasonable on the ground that it was not considered or not sufficiently considered by the Intervenor as to whether the Intervenor could lawfully implement the project in accordance with the pertinent statutes, and whether the implementation plan would result in the lawful result, and thus, the instant designation and authorization disposition constitutes deviation or abuse of discretionary authority.

(2) However, it is difficult to accept the above determination by the lower court.

According to the reasoning of the judgment below and the records, the defendant approved the housing construction project plan to build an apartment in the size of 1,275 years old around November 15, 2007, and provided that the project undertaker created a park and donated it to the defendant. The defendant's designation and approval disposition of this case is imminent at the scheduled date of moving-in of the newly constructed apartment in accordance with the housing construction project plan at the time of the defendant's designation and approval disposition of this case, and the construction of the neighboring park in this case was implemented by the intervenor. The neighboring park in this case was created by the intervenor who is the project undertaker of the above housing construction, and thus it is not possible for other competition companies. The defendant confirmed that the intervenor was designated as the implementer of the neighboring park development project in this case or the defendant was performing construction without obtaining authorization of the implementation plan prior to the designation

Therefore, in addition to the fact that the intervenor cannot remove illegal state caused by issuing an order to suspend construction to the intervenor, etc., it shall be deemed that there are various circumstances, such as the sharing of project costs or disadvantage to the purchaser of the above apartment complex or the prospective occupant, in the event that the intervenor does not designate the intervenor as the implementer of the neighboring park development project in this case. Even before the designation was made as the implementer of the neighboring park development project in this case, it shall not be readily concluded that the defendant did not consider any interest related to the designation and disposition of this case since the defendant commenced the construction and designated the intervenor who violated the relevant Acts and subordinate statutes as the implementer of the neighboring park development project in this case. Furthermore, it shall be deemed that the intervenor was actually expected to be designated as the implementer of the neighboring park development project in this case, barring any special circumstances, and thus, it shall also be considered that the intervenor did not have commenced the construction before the designation and disposition of this case in order to be designated as the implementer of other competitive enterprises

Therefore, the lower court should have determined whether the Defendant, without taking measures such as ordering the suspension of construction, did not take into account benefits relating to the designation and disposition of the instant case, or did not take into account sufficient consideration the Intervenor’s procedural violation, thereby seeking an implementation plan by designating the Intervenor as the site for the implementation of the instant neighboring park development project, regardless of the Intervenor’s violation of the procedure, and thereby seeking benefits by authorizing the Intervenor’s implementation plan. If the Defendant did not designate the Intervenor as the implementer of the instant neighboring park development project and authorize the implementation plan, the lower court should have examined and determined whether the Defendant’s deviation and abuse of discretion by comparing and comparing the public interests, such as ensuring the legality of the implementation of the instant neighboring park development project with those benefits and ensuring the legitimacy of the implementation of the instant neighboring park development project.

(3) Nevertheless, without examining various interests related to the designation and authorization disposition of this case, the court below determined that the designation and authorization disposition of this case were defective and abused from discretionary power. In such a case, the court below erred by misapprehending the legal principles on deviation and abuse of discretionary power, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-tae

Chief Justice Cho Jae-dae

Justices Park Sang-ok