1. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially accepted by the lower court, the lower court: (a) filed an application with the Defendant for permission for a charging business with 3,300 meters (hereinafter referred to as “the instant site”) out of 3,780 meters (hereinafter referred to as “the instant site”) of the land in Seocho-gu Seoul, Seocho-gu, Seoul, which belongs to the development restriction zone located in the north-do area north-do; and (b) on September 27, 2012, the Defendant issued a notice of nonpermission (hereinafter referred to as the “instant disposition”) on the ground that the Plaintiff was four grounds; and (c) among them, “the instant site which has excellent clinical trees among the instant site is included in the ground for the instant disposition, which does not meet the detailed criteria under attached Table 2 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 24509, Apr. 22, 2013; hereinafter referred to as “Enforcement Decree of the Development Restriction Zone”).

In addition, the court below determined that the ground for Disposition 2 of this case is based on the part (hereinafter "the provision of this case") that "in the case of changing the form and quality of the land or cutting bamboo and trees, it shall consider the gradient, forest condition .. in the case of changing the form and quality of the land or cutting the bamboo and trees" under Article 22 [Attachment 2] of the Enforcement Decree of the Development Restriction Zone Act among the detailed standards for permission or report" under Article 12 (d) of the Enforcement Decree of the Development Restriction Zone Act (hereinafter "the notification of this case"), the court below determined that the defendant cannot reject the application for Disposition 2 of this case as legitimate ground for Disposition 36 of this case, since it is not in violation of Article 6 (1) of the Seocho-gu Seoul Metropolitan Government Ordinance of the Seocho-gu Seoul Metropolitan Government Ordinance of 2006-36 on the ground that the ground for Disposition 41% of the total land in the development restriction zone or the gradient of this case can not be denied on the ground of the clinical or gradient of this case.

Furthermore, the lower court determined that the instant disposition was unlawful on the ground that Article 6(1) of the Notice was unlawful inasmuch as the instant provision was specified in the Enforcement Decree of the Development Restriction Zone Act, barring any special circumstance, barring any special circumstance, deeming that the relevant permission cannot be denied based on the instant provision of Article 6(1) of the Enforcement Decree of the Development Restriction Zone Act, and all other grounds for disposition are unlawful.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. Article 3(1) of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 11690, Mar. 23, 2013) provides that “Any person who intends to operate a liquefied petroleum gas charging business shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, or Do Governor for each place of business,” and Article 4(1) provides that permission shall be granted in cases where the person satisfies all the requirements, such as “it shall not undermine public safety and interest due to running the business (Article 1) and “it shall conform to this Act and other Acts and subordinate statutes (Article 6

Meanwhile, Article 12(1)1(e) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 11838, May 28, 2013; hereinafter “Development Restriction Zones Act”) prohibits, in principle, construction of buildings in development restriction zones; however, buildings prescribed by Presidential Decree as facilities for residential, living convenience and livelihood of residents in development restriction zones are special.

Article 13(1) [Attachment 1] 5(e)(10) of the Enforcement Decree of the Development Restriction Zone Act provides that the detailed criteria for the above permission shall be prescribed by Presidential Decree. Accordingly, Article 13(1) [Attachment Table 1] 5(e)(10) of the Enforcement Decree of the Development Restriction Zone Act provides that one of the facilities for the residence, living convenience and livelihood of residents in a development restriction zone and for their livelihood, and Article 22 [Attachment Table 2] [Attachment Table 2] of the detailed criteria for permission or report shall be set at the minimum necessary size so that it can minimize damage to a development restriction zone. (a) Where changing the form and quality of land or felling bamboo, the elevation, gradient, forest condition, height and drainage of neighboring roads shall be considered, and forest or arable farmland shall be excluded if it is possible to construct a building or install a structure (f).

In full view of the provisions of the above relevant Acts and subordinate statutes, a license for an automobile liquefied petroleum gas filling business in a development restriction zone shall be deemed to have been granted discretion to an administrative agency in determining whether to grant a license because the criteria or requirements for the license are defined as indefinite concepts. Thus, an administrative agency, which is the permitting authority, may determine whether to grant a license by examining the detailed criteria, etc. for a license prescribed in the Enforcement Decree of the Development Restriction Zone Act within the scope of its discretion, and insofar as the administrative agency’s judgment does not constitute misconception of facts, violation of the principle of proportionality and equality, and violation of the purpose, etc., it shall not be deemed to constitute deviation and abuse of discretionary authority (see, e.g., Supreme Court Decision 2005Du14

B. The ground for Disposition No. 2 of this case clearly stated the meaning of Disposition No. 2 of this case while clearly indicating the above (a), (d) and (f) as the detailed criteria set forth in [Attachment Table 2] attached to the Enforcement Decree of the Development Restriction Zone Act, the site which has a good clinical practice among the site for the application of this case does not meet the detailed criteria set forth in the Enforcement Decree of the Development Restriction Zone Act, and the defendant clearly stated the meaning of Disposition No. 2 of this case. Thus, in determining whether the ground for Disposition No. 2 of this case is legitimate, not only should it be examined whether the site for this case satisfies the general criteria set forth in subparagraph 1 (a), (d), and (f) of the Enforcement Decree of the Development Restriction Zone Act [Attachment 2] of the Development Restriction Zone Act.

However, according to the records, the land category of this case belongs to a development-restricted zone and a natural zone, and among them, 915 is in harmony with surrounding environment and landscape, including a forest that has a strong slope, which is immediately adjacent to a forest. ② The plaintiff filed an application for permission for charging projects in this case with the maximum permitted site area of 3,300 meters under the Enforcement Decree of the Development-Restricted Zone Act (Attachment Table 1] 5 (e) (e) of the Development-Restricted Zone Act as the site for the filling project in this case. The 2,865 meters in the site for this case is used as the actual arable land. However, the remaining 435 meters in the site for this case is part of the slope of 915 meters in a slope where the above forest is prone, and the remaining 42.3 degrees in gradient and 119% in a development-restricted zone, it is difficult to view that the application for permission for filling projects in this case should be made to minimize the size of the above 4.5 meters in the building site for public interest.

Examining these circumstances in light of the legal principles as seen earlier, even if the instant site meets the requirements for forest tree capital and gradient under Article 6(1) of the Notice, it is difficult to deem that the instant disposition meets the criteria prescribed in subparagraphs 1(a) and (f) of attached Table 2 of the Enforcement Decree of the Development Restriction Zone Act. Therefore, the instant disposition is lawful, and it does not constitute an unlawful act of deviating from or abusing discretionary power, such as the violation of the principle of proportionality and equality. Accordingly, the instant disposition is lawful. Nevertheless, the lower court erred by misapprehending the legal principles as to the interpretation of the instant disposition and the scope of discretionary discretion in the development restriction zone, etc. In so doing, the instant disposition is lawful. Nevertheless, the lower court erred by misapprehending the legal principles as to the interpretation of the instant disposition and the scope of discretionary discretion.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Kim In-young