[2] The case holding that the act of expanding the floor of the flat chilling and entering the flat chilling to 1m wide and to 150m wide and 4.5m wide constitutes an alteration of land’s form and quality

[3] The legal nature of the management regulations of development restriction zones, which are directives of the Ministry of Construction and Transportation, and whether the act of changing the form and quality of land without permission from the competent authority does not violate Article 21 (2) of the former Urban Planning Act (negative)

[2] The case holding that the expansion of the floor in the corner of the flat chill to the 1m breadth and the smooth chill to the chill to the length of 150 meters and the width to the 4.5m constitutes a change in the form and quality of land

[3] According to Article 21 of the former Urban Planning Act (amended by Act No. 5898 of Feb. 8, 199), Article 20 of the Enforcement Decree thereof, and Articles 7 through 9 of the Enforcement Rule thereof, an act of changing the form and quality of land in violation of the purpose of designating a development restriction zone, such as preventing urban disorderly expansion, preserving the natural environment surrounding cities, and securing a healthy living environment for urban citizens, shall be prohibited, but such act may be conducted with permission from the competent authority within a certain scope, and an act of changing the form and quality of land without permission shall be punished. Meanwhile, in light of the content and nature of the regulations, it is merely stipulated with the regulations of the Ministry of Construction and Transportation concerning the management of the development restriction zone (amended by Ordinance No. 203 of May 198), and it cannot be deemed that it has the nature of an administrative agency's internal business regulations concerning the management of the development restriction zone, and it cannot be deemed that it does not violate Article 21 (2) of the Urban Planning Act without permission.

1. On the first ground for appeal

The alteration of the form and quality of land under Articles 90 subparag. 2 and 21(2) of the former Urban Planning Act (amended by Act No. 5898, Aug. 8, 1999; hereinafter the same shall apply) means the alteration of the form and quality of land or reclamation of public waters by cutting, raising, or suspending land, etc., so it requires that the form and quality of land is de facto changed into an outer form and its alteration is difficult to restore to its original state (see Supreme Court Decisions 93Do403, Aug. 27, 1993; 96Do1237, Jul. 12, 1996, etc.). According to the records, the existing road of this case remains 1m wide, and it can be known that it was within a corner forest where the floor entering the flat chill is cut, filled, etc., and it does not constitute a violation of the rules of evidence or a violation of the Urban Planning Act’s alteration of the form and quality of land.

2. On the second ground for appeal

According to Article 21 of the former Urban Planning Act, Article 20 of the Enforcement Decree thereof, and Articles 7 through 9 of the Enforcement Rule thereof, an act of changing the form and quality of land in violation of the purpose of designating a development restriction zone, such as preventing any disorderly proliferation of cities, preserving the natural environment surrounding cities, securing a healthy living environment for urban citizens, shall be prohibited, and any act of changing the form and quality of land may be conducted with permission from the competent authority within a certain scope, and any act of changing the form and quality of land without permission shall be punished. On the other hand, a development restriction zone management regulation (amended by Ordinance of the Ministry of Construction and Transportation No. 203 of May 19, 198) is merely an instruction of the Ministry of Construction and Transportation under the Ministry of Construction and Transportation, and it cannot be deemed that it has the nature of an internal administrative business regulation on the management of development restriction zones, and therefore, it cannot be deemed that it does not violate the above Article 21 of the Urban Planning Act without permission (see Supreme Court Decision 97Nu1915, Jun. 9, 198).

In the same purport, the court below is just in holding that the above provision does not constitute a violation of Article 90 subparagraph 2 of the Urban Planning Act and Article 21 (2) of the Enforcement Decree of the Urban Planning Act on the sole ground that the act of improving and repairing farming roads and constructing a road with a width of not more than 5 meters among village joint projects shall not be deemed a violation of Article 90 subparagraph 2 of the same Act without permission, and there is no error of misapprehending the legal principles of Article 21 of the above Act, Article 20 of the Enforcement Decree thereof, Articles 7 through 9 of the Enforcement Rule thereof,

In addition, according to the records, it can be known that there was a change in the form and quality of the defendant's act of this case again due to the act of this case, 70 days after the restoration of the road of this case which was expanded and opened in the same way prior to the act of expanding the road of this case by the defendant. Thus, the court below is justified in rejecting the defendant's assertion on the legitimate act of this case since the court below did not have any justifiable reason for not knowing that there was a violation of the relevant laws and regulations, and there is no error

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)