Law Firm Barun (LLC)

Attorney Kim Young-soo et al.

Attorney Ahn-ho, Counsel for the defendant-appellant

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

1) 원고는 강원 홍천군 (주소 생략) 외 3필지 합계 23,503m(이하 '이 사건 신청지'라 한다)에 돈사(豚舍)를 신축하기 위하여, 피고에게 2018. 8. 30. 개발행위허가신청을 하고, 2018. 10. 2. 건축허가신청을 하였다.

2) The Defendant issued a disposition of refusal to grant permission on November 6, 2018 against the Plaintiff on the ground that “the instant application was designated as a restricted livestock raising area pursuant to Article 8(1) of the Act on the Management and Use of Livestock Excreta (hereinafter “the Livestock Excreta Act”), and a disposition of refusal to grant permission on November 8, 2018.

3) Meanwhile, as the former Ordinance on the Management and Use of Livestock Excreta (amended by Ordinance No. 2602, Apr. 17, 2019; hereinafter referred to as the “Ordinance of this case”) was enacted on July 10, 2017 by Hongcheon-gun Ordinance No. 2527, the Defendant prepared a topographic map that included the instant application area in the area subject to restriction on livestock breeding in the new area subject to restriction on livestock breeding. On January 24, 2018, the Defendant made a public announcement on the change of the topographic map in the area subject to restriction on livestock breeding (No. 2018-43 of the Hongcheon-gun notification No. 201) on February 13, 2018. However, the topographical map was not stated in the public notice, but the topographical map was stored in the environmental sanitation and real estate system of the Hongcheon-gun Office, and read the purport of "mt/mt./m. system."

B. The key issue of the instant case is whether a notice of topographic drawings was lawful in relation to the validity of designation of a livestock raising-restricted zone under Article 8(1) of the Livestock Excreta Act.

2. Relevant provisions and legal principles

A. Article 8(1) of the Livestock Excreta Act provides that the head of a Si/Gun/Gu may designate and publicly announce a certain area as prescribed by municipal ordinance of the relevant local government in any of the following areas where restriction on raising livestock is deemed necessary to preserve the living environment of local residents or preserve the quality of water sources. Accordingly, Article 3 of the Ordinance provides that the head of the relevant Gun shall designate a restricted area for raising livestock as specified in attached Table 1 pursuant to Article 8(1) of the Livestock Excreta Act; the head of the relevant Gun shall publicly notify the designation of the restricted area for raising livestock as specified in attached Table 1; (2) it shall not be possible to install livestock raising and livestock excreta discharging facilities in the restricted area (attached Table 1); and (3) subparagraph 3 (d) of the attached Table 3 provides that the head of the relevant Si/Gun/Gu shall not install housing in the residential densely well-populated area or medical facilities, education and research facilities, facilities for the elderly, training facilities, tourist resting facilities, facilities in the military, or livestock excreta discharging facilities located near to the boundary of at least one thousand meters.

Meanwhile, the Framework Act on the Regulation of Land Use (hereinafter referred to as the "Land Use Regulation Act") defines "area, district, zone, zone, region, complex, complex, urban/Gun planning facility, etc. as "area, zone, zone, etc." (Article 2 subparagraph 1), and defines "area, zone, etc. subject to restriction on the use and preservation of land" as "area, zone, etc." (Article 5 subparagraph 1 attached Table). In addition, where other Acts provide for designation, operation, etc. of area, zone, etc. and Article 8 of the Act on the Regulation of Land Use, if the head of a central administrative agency designates area, zone, etc., he/she shall comply with the Act on the Regulation of Land Use; where the head of a local government designates area, zone, etc., he/she shall prepare and publicly notify a topographical map in the Official Gazette, and where the head of a local government designates a local area, zone, etc., he/she shall prepare and publicly notify it in principle in the Official Gazette (Article 8 (2) and publicly notify it).

In full view of the foregoing provisions, in order to restrict livestock raising pursuant to the Livestock Excreta Act, the head of a Si/Gun/Gu shall, in principle, designate a certain area as an area where livestock raising is restricted as prescribed by municipal ordinances and prepare and publicly announce topographic maps as prescribed by the Land Use Regulation Act, and it is reasonable to deem that the designation of a zone where livestock raising is restricted prior to the preparation and public announcement of such topographic drawings does not take effect (see Supreme Court Decision 2013Du10489, May 11, 2017)

B. The purport of the Land Use Regulation Act, in principle, requires the preparation and enhancement of topographic maps when designating “area, district, etc.” lies in promoting convenience in land use and securing predictability and transparency in administration by clearly announcing the contents of land subject to restrictions on land use due to the designation of area, district, etc. In this context, pursuant to Article 10(5) of the Guidelines on the Preparation of Topographical Drawings in the Area, District, etc., where the general public peruses topographic maps, the topographic maps are prepared and output on the site of A1 (594m x 841m m x 841m) so that the general public can understand the location of individual lot numbers and the restrictions on land use by lot number. Meanwhile, the Official Gazette or official bulletin is difficult to legally contain topographic maps at the same time by making them available in the Official Gazette 20m x 257m x 297m x 297m m m x 297m m m m m m 2).

3. Determination as to the instant case

A. Examining the facts in light of the aforementioned legal principles, even if the Defendant, on January 24, 2018, included the instant application in a new livestock raising restriction zone, published a notice on the modification of a topographic map in a restriction zone on livestock breeding (No. 2018-43 of the Hongcheon-gun Notice) and did not contain a topographic map itself in the notice on February 13, 2018, by inserting it pursuant to Article 503 of the Hongcheon-gun Fire Prevention Act, if the Defendant kept the topographic map in the environment sanitation and office of the Hongcheon-gun Office and kept it in a state in which the general public can access directly at the same time as the foregoing notice was actually given, it should be deemed a lawful publication of the topographic map.

B. Nevertheless, the lower court determined that the designation of a new livestock breeding restriction zone was not effective because the Defendant did not legally publish a topographic map, insofar as the Defendant did not record the topographic map itself in the Hongcheon Military Newsletter, and thus, the instant application area was included in the new livestock breeding restriction zone. In so determining, the lower court erred by misapprehending the legal doctrine on the notification of a topographic map, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, 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 Park Il-san

Justices Kim In-bok, Counsel for the defendant

Justices Heung-gu