2. The plaintiffs' primary and conjunctive claims against the defendant Mineyang Market for the confirmation of invalidity of "the Gwangjinyang Urban Planning Facilities (Mayor, road, public vacant land, landscape green belt) project implementer designation (Public Notice No. 2014-175)" as of October 30, 2014, and "the main and conjunctive claims against the defendant Mineyang Urban Planning Facilities (Mayor, road, public vacant land, landscape green belt) project implementer designation (Public Notice No. 2014-203) as of December 18, 2014 of the defendant Mineyang Urban Planning Facilities (Public Notice No. 2014-203)", and the plaintiff 11, 12, and 18's claims against the defendant Jeonnam-do Regional Land Tribunal for the adjudication on each of the real estate in the separate sheet No. 2139, Mar. 24, 2015."

3. Of the total litigation cost, the part arising between the plaintiffs and the defendant Mineyang market and the part arising from supplementary participation are assessed against the plaintiffs, and the part arising between the plaintiffs 11, 12, 18 and the defendant Jeonnam-do Regional Land Expropriation Committee are assessed against the above plaintiffs.

A. The Defendant Mineyang Market confirms that the designation of a project implementer (No. 2014-175 of the Notice at the time of Mineyang Market) as a mining and urban planning facility project (a Mayor, road, public vacant land, landscape green area) on October 30, 2014, which was made on August 28, 2014 (No. 2014-14-175 of the Notice at the time of Mineyang Market) is invalid (No. 2014-175 of the Notice at the time of Mineyang), and that the above claim was invalid (the part of the claim was excluded from the subject of a trial at the time of the trial, since the Plaintiffs lost the Plaintiffs at the first instance trial on August 28, 2014, but only the Defendants were dissatisfied with the claim).

B. On the other hand, around December 18, 2014, Defendant Mineyang City (Mayor, road, public vacant land, landscape green belt) project implementer designation and implementation plan (No. 2014-203 public notice at the time of Mineyang), Defendant Jeonnam-do Land Expropriation Committee (hereinafter “Defendant Committee”) on March 24, 2015, confirms that the adjudication of expropriation of each real estate stated in the attached Table 2 “Real Estate” is null and void.

C. Preliminaryly, the Minister of Land, Infrastructure and Transport revokes his/her decision on expropriation of each real estate stated in the “Real Estate” column in the attached Table 2 that Defendant Mineyang Market Co., Ltd. (Mayor, road, public vacant land, landscape green belt), the project implementer is designated (2014-203 public notice at the time of Mineyang), and the implementation plan is designated (2014-203 public notice at the time of Mineyang), and the Defendant Committee against Plaintiff 11, 12, and 18 on March 24, 2015, respectively.

2. Purport of appeal

The same shall apply to the order.

(a) Determination on the previous urban planning with respect to the sub-committee;

On December 13, 2002, the Jeonnam-do governor decided and publicly announced the alteration of the urban planning with a content that alters the use of the existing natural green area of 64,560 square meters and the production green area of 26,680 square meters into a Class-II general residential area in order to create a sound university village in the vicinity of the Hanyang-si University and the Mineyang-si University. On December 13, 2002, Jeonnam-do announced the alteration of the urban planning with a content that alters the use of the production green area of 64,560 square meters into a Class-II general residential area. On December 13, 2005, Jeonnam-do announced the alteration of the mining urban management plan of 46,660 square meters, which is part of the Class-II general residential area of the above Class-II general residential area, into a quasi-residential area.

On February 20, 2006, the defendant Mineyang-si announced the above change decision and topographic drawings under the Notification No. 2006-16 of the Mineyang-si, and the above plan forms a substantial part of the roads, railroads, parking lots, squares, parks, green areas which are urban space facilities, and public and cultural and sports facilities (hereinafter referred to as “previous decision of the urban management plan”).

B. The process to attract the superstore in the defendant light mining market;

On July 12, 2013, Jeonnam Do governor submitted the investment proposal to the effect that the Intervenor (hereinafter “ Intervenor”) would create a plashion in the vicinity of the Sincheon-si, Mayang-si and the Intervenor’s Intervenor (hereinafter “ Intervenor”) with approximately KRW 66,00 square meters of a size not exceeding 66,00 square meters, and requested to notify the intent of attracting doctors to the Sinyang-si, the Sincheon-si and the Sinyang-si.

Accordingly, the Defendant Mineyang Market and the Intervenor agreed to enter into an entrustment contract related to land compensation between the Defendant Mineyang Market and the Intervenor after consultation between them, and accordingly, to collect consent from the owners of the land anticipated that the construction project of this case will proceed, and to change the specific use area of the above land into a quasi-residential area of Class II general residential area and to place urban planning facilities for the construction of a superstore on the relevant land as infrastructure. The Intervenor agreed to proceed with the luminous LFVS construction project (hereinafter “the construction project of this case”) by means of obtaining the designation and authorization of the project implementer of the above urban planning facilities.

C. Conclusion of an entrustment contract between the Defendant Mineyang Market and the Intervenor

On December 6, 2013, according to the agreement on the investment attraction process and the method of the construction project of this case, Defendant Mineyang concluded an entrustment contract with the Intervenor for compensation for the construction project of this case (hereinafter “instant entrustment contract”). The main contents are as follows.

(1) The purpose of this contract is to prescribe matters necessary for the intervenor to entrust his/her affairs concerning the acquisition of and adjudication on the land, etc. to be incorporated into the construction project of this case under the name of the intervenor. Article 3 (Period of Contract) shall be the time the intervenor transfers and takes over the compensation documents related to his/her affairs, such as demand for consent to the land, etc. incorporated into the project district (not less than 2/3 of the area of the land, acquisition, adjudication on expropriation, deposit, etc.) and the settlement of the project expenses within 7 weeks after the conclusion of the contract. The amount of compensation shall be calculated according to the provisions of Article 4 (Sharing of Works) and the calculation standards of compensation fees for the remaining land to the intervenor. < Amended by Presidential Decree No. 1751, Apr. 1, 2006>

(d) Sending a written consent form to the Defendant Mineyang Market;

According to the instant entrustment contract, the Defendant Mineyang City: (a) submitted the instant written consent form, as described in attached Form 3-1 (hereinafter “instant written consent form”) and attached Form 3-2 (hereinafter “the instant written consent form”) to the effect that “the instant construction project will be implemented once every five times on March 17, 2014; and (b) the owner of the land anticipated to be implemented the instant construction project.” (c) as the owner of the land is promoting the instant written consent form, “the instant written consent form is being sent to the owner of the land to the effect that the said written consent form and the written consent form, as described in attached Form 3-1 (hereinafter “the instant written consent form”) and attached Form 3-2, to the effect that the instant written consent form would be “the owner of the land,” and the written consent form, to the effect that the said written consent form will be sent to the owner of the land for inducement of investment.” (d) the instant written consent form and the instant written consent form is sent to the owner of the land.

E. Determination of changes in urban management planning of the Defendant Mineyang Market

From June 3, 2014 to June 17, 2014, the Defendant Mineyang City announced a draft of the Gwangjuyang Urban Management Planning and Utilization Act (hereinafter “National Land Planning and Utilization Act”) pursuant to Article 28 of the National Land Planning and Utilization Act and Article 22 of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”), and publicly announced a draft of the Gwangjuyang Urban Management Plan (Seoul Metropolitan Office’s district unit plan) by public perusal, and on June 12, 2014, held a residents explanatory meeting at the Gwangju-Eup Office.

Since then, the above paragraph (d) obtained consent from 75% of the landowners of the land planned to be constructed in the instant case through the requisition procedure of this Agreement, and the Defendant Mineyang market determined and publicly announced the modification of the Mineyang Urban Management Plan (district unit plan) as the Notification No. 2014-143 on August 28, 2014, and approved and publicly announced the topographic map. The major contents of the modification are to change the land of Class II general residential area into a quasi-residential area and to change the land of Class II general residential area into a quasi-residential area for the instant construction project, and to build a market (large scale, 78,184 square meters), a public vacant land (4,303 square meters), a landscape green belt (3,344 square meters), a road construction plan (hereinafter referred to as the “decision to modify the above urban management plan”, and the above market, public vacant land, landscape green area, and urban planning facility (hereinafter referred to as the “instant urban planning facility”).

(f) Dispatching a written request for compensation consultation to purchase land in the defendant Mineyang market;

On September 2, 2014, pursuant to the instant entrustment contract, the Defendant Mineyang Mayor sent a written request for consultation on compensation (hereinafter “written request for purchase”) with the following details attached to the appraisal results of the relevant land to the landowners subject to the project that installs the instant urban planning facility project (hereinafter “instant urban planning facility project”), and purchased the land of the landowners in response to the said request for purchase and completed the registration of transfer of ownership in the name of the Intervenor with respect to 58,286 square meters (6.7%) out of the private land subject to the instant urban planning facility project, within 87,384 square meters within the private land subject to the instant urban planning facility project.

On August 28, 2014, the land owner's consent was obtained in order to attract the domestic main distribution facilities within the Geumcheon-gu District Unit Planning Zone in which your own land is located. On August 28, 2014, the land owner's second-class general residential area is raised as "quasi-residential area" and the appraisal is completed. 3. Therefore, as to the land, etc. to be incorporated into a superstore urban planning facility project by applying mutatis mutandis Article 16 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, the time to request a consultation on compensation would be the time to claim compensation, and the additional payment would be made if it is not included in the details of the compensation decision, but required documents.

(g) Designation of a project implementer and authorization of an implementation plan for the Defendant Mining Market;

On October 21, 2014, the Intervenor: (a) determined on October 30, 2014 to satisfy the requirements for designation of a project implementer under Article 86(5) and (7) of the National Land Planning and Utilization Act; (b) determined on October 30, 2014, that the Intervenor owned at least 2/3 of the land subject to the instant urban planning facility project through a compensation consultation procedure for purchasing the land under paragraph (d) above; and (c) obtained the consent of at least 1/2 of the total number of landowners (70.5% of the land owners who did not sell the land = 79 persons who sent a consent form among 112 landowners) of the National Land Planning and Utilization Act; and (b) determined that the Intervenor’s designation and announcement of the instant urban planning facility project under Article 2014-175 of the Enforcement Decree of the National Land Planning and Utilization Act was to meet the requirements for designation of a project implementer under Article 96(2) of the Enforcement Decree of the National Land Planning Act.

1. Table 1 located within the main sentence; 2. The type and name of the business and the name of the business: The name of the urban planning facility (market, road, public vacant land, and landscape green belt) project: the construction project in this case; 3. The construction project in this case; 93,098 square meters; 78,184 square meters in a market; 8,71 square meters in a road; 4,303 square meters in a public land; 1,90 square meters in a landscape green area; 4. The name and address of the project implementer; 4. The name and address of the participant: 00 square meters in the area of the project;

After November 6, 2014, the Intervenor entered into an application for designation of a project implementer and an application for authorization of an implementation plan with Defendant Mineyang City Mayor on November 6, 2014, and the Defendant Mineyang City made public announcement of the above implementation plan on November 10, 2014 pursuant to Article 90 of the National Land Planning Act and Article 99 of the Enforcement Decree of the National Land Planning Act, and requested consultation with the head of the relevant administrative agency on November 18, 2014 pursuant to Article 92 of the National Land Planning Act. After requesting consultation with the head of the relevant administrative agency on November 18, 2014, the Intervenor determined and publicly announced the modification of the designation of a opticalyang Urban Planning Facility (market, road, public vacant land, landscape green area) (hereinafter referred to as “instant implementation plan”), and approved and publicly notified the implementation plan (hereinafter referred to as “authorization”), and the main contents are as follows:

1. Table 1 located within the main sentence; The type and name (no change) of the project; 2. The name and the name (no change) of the urban planning facility (market, road, public land, and landscape green belt) project: the construction project in this case; 3. The construction project in this case; 93,098 square meters (market 78,184 square meters, road 8,711 square meters, public land, 4,303 square meters, landscape green areas, 1,90 square meters): 97,826 square meters (market 78,184 square meters, road 13,439 square meters, road 4,303 square meters, landscape green areas, and 1,900 square meters: the name and address of the project operator (no change in the name and address of the project operator : 00 square meters).

Note 3) 13,439 square meters

H. Adjudication on acceptance by the Defendant Committee

Pursuant to Article 15 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects on November 6, 2014 (hereinafter “Land Compensation Act”), Defendant Mineyang Mayor notified the construction project of this case, the details of land and goods protocols, the place of perusal of a compensation plan, the timing, method, and procedure for compensation, and notified the compensation plan, including the outline of the construction project of this case, the time, method, and procedure for inspection of the compensation plan, and filed an application for adjudication with the Defendant Committee on February 6, 2015 after requesting the landowners of the land subject to the instant urban planning facility project to consult on compensation pursuant to Article 16 of the Land Compensation Act and Article 8 of the Enforcement Decree of the same Act on January 23, 2015.

Accordingly, on March 24, 2015, the Defendant Commission rendered a ruling of expropriation of the real estate indicated in the “Real Estate” column indicated in the attached Table 2 (hereinafter “instant ruling of expropriation”) against Plaintiffs 11, 12, and 18 on the ground that the project approval under the Land Compensation Act is deemed to have been granted according to the authorization of the instant implementation plan.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 7, 10, 16, Eul evidence 1 through 26, 32 through 34, and 45 (including various numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiffs' assertion or related laws

A. The plaintiffs' assertion

Since the designation of the project operator of this case, the authorization of the implementation plan of this case, and the adjudication of acceptance of this case are unlawful for the following reasons, the plaintiffs seek the invalidity confirmation of the designation of the project operator of this case, and seek the revocation of the primary invalidity confirmation and preliminary revocation of the authorization of the implementation plan of this case, and plaintiffs 11, 12, and 18 seek the revocation of the primary invalidity confirmation and preliminary revocation of the adjudication of acceptance of this case.

(1) The part designating the project implementer of this case

Pursuant to Article 86(5) and (7) of the National Land Planning Act, and Article 96(2) of the Enforcement Decree of the National Land Planning Act, a person, other than a local government, who intends to be designated as a project implementer of an urban planning facility project, owns land equivalent to at least 2/3 of the area of the land subject to an urban planning facility project (hereinafter “land ownership requirements”), and obtains consent from at least 1/2 of the total number of landowners (hereinafter “land ownership requirements”), and even though the Intervenor failed to meet the requirements for land ownership and consent, the Intervenor designated the Intervenor as the project implementer, even if the Intervenor failed to meet the requirements for

(A) Defect in land ownership requirements

도시계획시설의 사업시행자 지정권한을 가지고 있는 피고 광양시장이 참가인과 이 사건 위·수탁계약을 체결하고, 토지의 매수 및 동의서 징구를 대리하였는데, 이를 통하여 참가인 명의로 마쳐진 소유권이전등기는 아래와 같은 이유로 무효이다. 즉, ㉠ 피고 광양시장의 행위는 국토계획법 등 관련법령에 근거규정이 없어 무효인 대리행위에 해당하고, ㉡ 피고 광양시장이 공인중개사나 변호사가 아니면서 참가인으로부터 일정한 보수를 받고 이 사건 도시계획시설사업 대상 토지의 매매를 알선하여 공인중개사법 또는 변호사법을 위반하였으며, ㉢ 참가인과 토지소유자들 사이의 토지매매계약은 사인 간의 매매계약에 불과함에도 피고 광양시장은 이 사건 도시계획시설사업 대상 토지 소유자들에게 이 사건 서한문을 발송하면서 ‘보상’, ‘토지보상법에 의거’라는 용어를 사용하여 마치 토지보상법에서 정하는 보상에 의한 취득인 것처럼 가장한 것은 기망에 해당하고, ㉣ 토지소유자들로 하여금 참가인에게 해당 소유 토지의 매각 또는 동의서 작성 등의 의무 없는 일을 하게 하거나 매매계약의 체결 또는 동의서 작성 등의 자유로운 권리행사를 방해한 것으로 공무원의 직권을 남용한 것이다.

(B) Failure to meet the requirement for consent

The written consent submitted by the Defendant Mineyang Market from the landowners of the land subject to the instant urban planning facility project (hereinafter “instant written consent”) is invalid for the following reasons. In other words, the Plaintiffs agreed to raise the specific use area of the land subject to the instant urban planning facility project into a quasi-residential area from Class 2 residential areas, and did not agree to the designation of the Intervenor in the implementation of the instant urban planning facility project. The written consent of the Plaintiff stated only that “the implementer or implementer of the instant urban planning facility project under the designation of the Mineyang Market or the prospective implementer of the instant written consent” is written in the column, and the remainder is written in the public space, and the land owner’s consent was not specified. The Intervenor arbitrarily stated “the Intervenor’s address, name, corporation registration number, telephone number, and the prospective implementer’s consent” in the public space. This constitutes an unlawful use of private documents required by the Intervenor to obtain designation of the project implementer under the National Land Planning Act, and it cannot be seen as the consent of the modification of the instant written consent after the modification of the instant urban planning plan.

(2) The part approving the instant implementation plan

(A) Article 96 of the National Land Planning and Utilization Act provides that "the Land Compensation Act shall apply mutatis mutandis to the expropriation and use of land, etc. by a project operator, and where an implementation plan is publicly announced pursuant to Article 91 of the National Land Planning and Utilization Act, it is deemed that the approval of the project and the public notice thereof were granted or made. Therefore, in order to authorize an implementation plan pursuant to the National Land Planning and Utilization Act, it shall be determined whether the project operator has public interest to allow such expropriation by applying mutatis mutandis the Land Compensation Act. The construction project of this case is merely a project with the contents of the Intervenor's exclusive and exclusive profit-making projects, and it shall not be recognized

(B) Article 2 Subparag. 6 of the National Land Planning and Utilization Act states “distribution and supply facilities, such as common utility ducts,” as one of the infrastructure for which the right to expropriate can be exercised. The above provision delegates details of distribution facilities to Presidential Decree without any restriction, which is contrary to the principle of prohibition of comprehensive delegation. In addition, Article 82 Subparag. 1 of the Regulations on the Determination, Structure and Installation Standards of Urban and Gun Planning Facilities (hereinafter “Enforcement Rule of this case”) includes “large-scale stores pursuant to subparagraphs 3 and 5 of Article 2 of the Distribution Industry Development Act” within the scope of markets as infrastructure. This constitutes “large-scale stores pursuant to subparagraphs 3 and 5 of Article 2 of the Distribution Industry Development Act” beyond the scope delegated by superior statutes and the Enforcement Decree of the National Land Planning and Utilization Act, and the authorization of the instant implementation plan based on the invalid

(3) The part on the acceptance ruling of this case

Even though a project operator has lost public interest in the public expropriation after obtaining project approval, it is not allowed to exercise the right of expropriation based on the project approval as it constitutes an abuse of the right of expropriation that goes against the public interest of the right of expropriation. As seen in the above paragraph (2), since the construction project of this case is not recognized as public interest, the adjudication of expropriation of this case has abused the right of expropriation.

(b) Related statutes;

Attached Table 4 shall be as stated in the relevant statutes.

3. Whether each disposition is lawful;

A. Part on the claim for nullification of the designation of the project operator of this case

(1) The relevant provisions and the issues of the instant case

Article 2 Subparag. 6 of the National Land Planning Act provides that “infrastructure means any of the following facilities prescribed by Presidential Decree,” and Article 2 Subparag. 7 of the same Act provides that “urban or Gun planning facilities mean facilities determined by an urban or Gun management plan among infrastructure” (hereinafter referred to as “urban or Gun management plan” and “urban or Gun planning facilities” shall be referred to as “urban or Gun planning facilities” and the type, name, location, scale, etc. of such facilities shall be determined by an urban management plan in advance in order to install infrastructure on the ground, water surface, air, underwater, or underground.”

Meanwhile, Article 86(7) of the National Land Planning Act provides that “The State or a local government, a public institution or any other person prescribed by Presidential Decree (hereinafter referred to as a “private project operator”) intends to be designated as an implementer of an urban planning facility project shall meet the requirements prescribed by Presidential Decree with respect to the size of land (excluding State or public land) subject to an urban planning facility project and the ratio of landowners’ consent.” Article 96(2) of the Enforcement Decree of the National Land Planning Act provides that “The requirements prescribed by Presidential Decree refer to the possession of land equivalent to at least 2/3 of the area of land (excluding State or public land) subject to an urban planning facility project and obtaining consent from at least a half of the total number of landowners.”

In addition, Article 95(1) of the National Land Planning Act provides that "the implementer of an urban planning facility project may expropriate or use the land, buildings or fixtures thereon, and rights other than the ownership thereof, which are necessary for an urban planning facility project." Article 96(1) provides that "Except as otherwise provided for in this Act, the Land Compensation Act shall apply mutatis mutandis to the expropriation and use under Article 95," and Article 96(2) provides that "in cases where an implementation plan is publicly announced pursuant to Article 91 at the time of applying the Land Compensation Act pursuant to paragraph (1) of the same Article, it shall be deemed that the project is approved and the notice thereof has been made pursuant to Articles 20(1) and 22 of the same Act."

In full view of the above provisions of the National Land Planning Act, in order for a private business entity such as an intervenor to be designated as a project implementer of urban planning facilities, a private business entity such as an intervenor shall own land of at least 2/3 of the area subject to urban planning facilities project pursuant to Article 86(7) of the National Land Planning Act and Article 96(2) of the Enforcement Decree of the National Land Planning Act and obtain consent of at least 1/2 of the total number of landowners.

Therefore, if the intervenor fails to meet the land ownership requirements and consent requirements at the time of the designation of the project developer of this case, the designation of the project developer of this case is unlawful, and thus, the intervenor is examined as to whether the requirements and consent requirements are met, and if not, the degree of such defect is examined.

(2) Whether the land ownership requirements are satisfied

At the time of the designation of the project implementer of this case, the Intervenor completed the registration of ownership transfer with respect to not less than 2/3 and not less than 66.7% (58,286§³ among private land within 87,384С) among the private land within the urban planning facility project of this case. Thus, the Defendant Mineyang Market’s act of purchasing land on behalf of the Intervenor pursuant to the above entrustment contract of this case cannot be deemed unlawful in light of the following facts. Even if it is unlawful, the designation of the project implementer shall be determined on the basis of whether the Plaintiff completed the registration of land ownership in its name, as long as the Civil Act adopts the form of the change in real rights. Even if it is unlawful, the designation of the project implementer shall be determined on the basis of whether the Plaintiff satisfied the requirements for land ownership at the time of the designation of the project implementer of this case. The reason alleged by

○○ Administrative Agency’s act cannot be deemed unlawful solely on the ground that there is no ground provision. Therefore, it cannot be deemed unlawful, contrary to the Plaintiffs’ assertion, solely on the ground that there is no ground provision under the National Land Planning Act regarding the purchase of land and the act of acting on behalf of the Intervenor for the purchase of land.

In light of the purport that Article 81(1) of the Land Compensation Act provides that a project operator may entrust a private business operator with compensation duties to a local government, etc., and the expertise of compensation affairs, the provision of administrative support to a private business operator who intends to be designated in the implementation of an urban management plan by a local government, etc. is easy to promote public welfare through the urban management plan and improve the quality of people’s lives, and thus, it cannot be deemed an abuse of public official’s authority.

○ The use of the expression “compensation” and “land compensation law” in the text of this case appears to be due to the fact that the Defendant Mineyang Market, which was entrusted by the Intervenor with the compensation business, determined the arithmetic mean of the appraisal results of two landowners by applying mutatis mutandis the procedure for calculating the amount of compensation under the Land Compensation Act to ensure equity and just compensation among the landowners prior to concluding a contract for land sale and purchase with a large number of landowners pursuant to the above and the entrustment contract of this case. In addition, it is difficult to view that the Defendant Mineyang Market, which was entrusted with the compensation business, was deceiving the landowners into the expropriation under the Land Compensation Act.

○ Defendant Mineyang market’s conduct of compensation consultation with landowners who agreed to the business by Defendant Mineyang market constitutes “the conduct of brokerage business” under Article 2 subparag. 3 of the Licensed Real Estate Agents Act or “the conduct of brokerage business” under Article 2 subparag. 3 of the Licensed Real Estate Agents Act, or the conduct of agency, arbitration, or legal affairs. Thus, Defendant Mineyang market cannot be deemed to have violated the Licensed Real Estate Agents Act or

(3) Whether the requirements for consent are satisfied

A) Effective requirements of consent

Article 86(7) of the National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree thereof provide that the consent of at least 1/2 of the total number of landowners shall be obtained as a requirement for consent to be designated as an implementer of an urban planning facility project. A private enterprise designated as a project implementer is entitled to expropriate land subject to an urban planning facility project upon obtaining authorization of an implementation plan. The requirement for consent is meaningful as a ground to justify granting the right to expropriate to such private enterprise (see Supreme Court Decision 2013Du7025, Jul. 10, 2014). The control device is installed to prevent the progress of the expropriation procedure with the unilateral intent of the private enterprise (see Constitutional Court Decision 2008HunBa16, 2011HunBa35, Jun. 30, 201).

In light of the legislative intent of the above requirements for consent, the administrative agency in receipt of the application for designation of a project operator shall confirm the validity of the consent in examining whether the landowner who is the requirements for designation of a project operator, namely, ① the authenticity of the consent, namely, whether the relevant written document has been prepared as the landowner’s genuine intent, and ② the details of the consent (hereinafter “the designation of an urban planning facility project”).

According to the evidence No. 1-3 and No. 45, according to the evidence No. 1-3 and No. 45, it can be recognized that Defendant Mineyang Viewers submitted each of the instant written consent from 78 persons among the 112 owners of the land subject to the instant urban planning facility project at the time of designation of the instant project implementer. Accordingly, this study will examine whether the instant written consent satisfies the validity requirements of the said consent.

B) Whether the authenticity of consent is recognized

The fact that the pertinent written consent is accompanied by the landowner’s certificate of seal impression, and, except for the project implementer or the prospective implementer’s column of urban planning facilities under the instant written consent, the address, resident registration number, telephone number, date of preparation, date of preparation, and the name of the consenters, and the signature or seal is not in dispute between the parties, and the Intervenor’s entry of address, name, registration number, and telephone number in the said written consent is valid as follows. As such, the instant written consent satisfies the authenticity as a valid requirement of the consent.

C) Whether the content of consent is acknowledged

1) Whether the instant written consent pertains to “designation of a project developer”

In light of the following circumstances, i.e., the purport of the entire argument revealed that the draft of this case’s written consent was based on Article 96 (Designation of Implementer) of the Enforcement Decree of the National Land Planning Act, and the landowners could have understood the meaning of the written consent by confirming the relevant provisions. The written consent of this case contains a statement of consent to the land owned by the implementer of an urban planning facility project or the prospective implementer as to the urban planning facility project in accordance with the consent. The written consent of this case along with the written consent of this case’s form, “the Guidelines for the Designation of the Project implementer” cannot be deemed to be limited to the height of the special-purpose area into a quasi-residential area in a Class 2 residential area as otherwise alleged by the Plaintiffs (the Plaintiffs are obliged to notify the project implementer of the fact that the said written consent of this case was obtained at the time of designation of the project implementer and the authorization of the implementation plan from the landowners, but the Land Compensation Act does not have any obligation to notify the landowner of the land of the land and the method and method of calculating the compensation for damages.

2) Whether the instant written consent was designated as the project implementer

In addition to the aforementioned evidence, the witness of the first instance trial, the witness of the first instance trial, and the witness of the non-party 2 of the first instance trial in addition to the whole purport of the pleadings, the owner of the land involved in the construction of the instant written consent was printed on the right side of the “project implementer or the prospective implementer of the urban planning facility project” column of the instant written consent at the time when the land owner prepared the instant written consent and sent it to the defendant Mineyang City, using the same word as “the urban planning facility project implementer or the prospective implementer under the designation of the mining market.” The address, name, resident registration number, and telephone number are not indicated, and the facts that the intervenor, who received the instant written consent from the Defendant Mineyang City, stated the said written consent in supplement to the above address, name, resident registration number, and telephone number, and

In light of the language and legislative intent of the above national land planning statutes, it cannot be deemed prohibited to delegate the contents of consent to a third party in determining the validity of consent, i.e., the following circumstances known in the above facts, i., ① it cannot be deemed to be prohibited to delegate the contents of consent to a third party in determining the validity of consent; ② In the instant consent, the phrase “to be implemented” can be deemed to mean “the implementer of an urban planning facility project” as referred to in Article 86(7) of the National Land Planning and Utilization Act; ③ the instant consent explicitly indicates the intent of delegation because it is indicated as “the owner of the land subject to the instant urban planning facility project” designated by the Defendant Mineyang market, the fact that the land owner of the instant urban planning facility project, who wishes to be designated as the implementer of the urban planning facility project or the prospective implementer of the instant consent, delegated the supplement of the consent to the intervenor’s right to make a supplementary entry in the instant consent, and thus, it cannot be deemed legitimate as the landowner’s use of the consent.

3) Whether the instant written consent pertains to “instant urban planning facility project”

(1) According to the National Land Planning Act, an urban planning facility means a facility determined by an urban management plan among infrastructure (Article 2 subparag. 7); the type, name, location, scale, etc. of such facility in order to install an urban planning facility shall be determined in advance by an urban management plan (Article 43(1)). In addition, the National Land Planning Act provides institutional regulations to provide various interested parties with an opportunity to present their opinions and opinions in the process of formulation and implementation of an urban management plan. In other words, the urban management plan shall be formulated in a manner consistent with a metropolitan plan and a basic urban plan (Article 25(1)); the urban management plan shall be differentiated by comprehensively taking into account the degree of details of the plan, the population density of the area of the city, farming and fishing village, characteristics of land utilization and surrounding environment, etc. (Article 25(3)); residents, including the interested parties, shall also be able to formulate and propose an urban management plan (Article 26(1)); when an urban management plan is to be formulated or modified, referring to the opinions of the relevant urban management plan and other matters (3).

The above provisions of the National Land Planning Act, in the process of determining the urban planning plan for the installation of urban planning facilities, provides interested parties with an opportunity to present their opinions by judging the social, economic and public interests, etc. of the installation of urban planning facilities as reasonable social and economic entities, and provide them with basic information to determine whether to consent to the designation of urban planning facilities where a private project operator intends to be designated as the implementer of urban planning facilities in the future by including the approximate type, name, location, and scale of urban planning facilities.

Ultimately, in view of both the urban management planning under the National Land Planning and Utilization Act, the regulatory structure, language, and legislative intent of such provisions, the “urban planning facility project” subject to the landowner’s consent in designating a private project operator as the project implementer is bound to be interpreted as the project concerning the urban planning facilities in accordance with the urban management planning determined by lawful procedures. Therefore, the landowner’s consent that was made before the decision of the urban planning plan for the installation of urban planning facilities cannot be specified as the subject of consent

(2) However, since the administrative agency has considerable discretion on the urban management planning, it may determine in advance the urban management planning for the installation of urban planning facilities by the plan to designate the private business operator as the project operator. In such a case, if the urban management planning premised on the designation of the private business operator is left by the long-term unexecution urban planning without the consent of the landowner to designate the private business operator as the project operator, it is not only unnecessary administrative power but also unnecessary, and if there may be unnecessary constraints on the landowner’s exercise of property rights due to the existence of such urban planning, it is necessary to recognize the validity of the consent only in exceptional cases, even if the landowner consents before

In addition, for such consent to be exceptionally effective, in light of the purpose of legislation of the consent requirement as mentioned in the National Land Planning and Utilization Act, the regulation system, language and text of the National Land Planning Act, and the legislative intent of the provisions, the plan on the facilities to be installed by the method of urban planning facilities at least to the extent equivalent to the case where the owner of land makes a decision on urban planning concerning the installation of urban planning facilities at least to the extent equivalent to the case where an urban planning plan is decided on the installation of urban planning facilities is provided, namely, the consent made under the provision of the kind, name, location, and size of the facilities under Article 43(1) of the National Land Planning and Utilization Act, and further, the person who wishes to

③ In the instant case, the fact that landowners prepared the instant written consent and sent it to Defendant Mineyang City before the decision to modify the instant urban management plan, which is an urban management plan for the installation of urban planning facilities, is as seen earlier. As such, in principle, the instant written consent does not have effect as the consent for the designation of the project implementer. However, it may be exceptionally acknowledged only when the type, name, location, and scale of the instant construction project to be installed as the instant urban planning facility after the declaration of consent in the instant written consent or in the summary of the designation of the project implementer, and the purport that the plan may be revoked when the said plan is modified after the declaration of consent. However, the written consent of this case cannot be deemed as the consent for the instant urban planning facility project, on the grounds that there is no such indication even after examining all

④ As to this, the Defendants asserted that the instant urban management plan was modified at the time of the designation of a project implementer, which is the time of determining the legality of the designation of a project implementer, and that the landowner was aware of the name, type, scale, location, etc. of urban planning facilities, and that the said defect was cured because the landowner could freely withdraw consent prior to

In light of the nature of the administrative act or the rule of law, the remedy for defective administrative act is not permissible in principle in light of the nature of the administrative act or the point of view of the rule of law, and exceptionally, when allowing it for the sake of the legal stability of the parties, it should be recognized in a combined manner according to specific circumstances to the extent that it does not infringe on the rights or interests of the people (see Supreme Court Decision 2001Du10684, Jul. 9, 2002); the designation of the project operator and the disposition of authorization of the implementation plan have the nature of the right disposition; the land owner has not made any effort to seek additional consent or confirm the contents of the consent after the decision to amend the urban management plan of this case; and it is not possible to conclude that the correction of defects does not cause any damage to the land owners including the plaintiffs even if recognizing the correction of defects.

D) Sub-determination

Therefore, since the written consent of this case alone cannot be deemed to have consented to the designation of the intervenor as the implementer of the urban planning facility project, the intervenor failed to meet the consent requirements necessary for the designation of the implementer of the urban planning facility project, and the designation of the project implementer of the defendant Mineyang market is illegal.

(4) Whether the designation of the instant project operator is void as a matter of course

1) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of an essential part of the relevant statute. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the relevant statute should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see Supreme Court Decision 2011Du25173, Feb. 27, 2014). In addition, in cases where an administrative agency takes an administrative disposition by applying a provision of a certain legal relationship or factual basis, it is clearly stated that the legal principle as to the legal relationship or factual relations cannot be applied, and even if there is no room for dispute over the interpretation thereof, if an administrative agency takes the disposition by applying the above provision, it shall be deemed that the defect is grave and obvious, but it cannot be said that there is a mistake in the requirement of the administrative disposition by erroneous interpretation of the relevant legal relationship or factual relations, which is merely an object of investigation, even if it is obviously 201.

On the other hand, a rearrangement project association, which is a project implementer of a housing redevelopment project, is established and registered by the competent administrative agency’s authorization and registration (Articles 16(1) and 18(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and the consent of the owners of land for the establishment of an association, etc. is a procedural requirement required to take an administrative disposition such as the approval of the establishment of an association. Thus, even if there is a defect in the consent of the establishment, if the defect is not serious and clear, the approval of the establishment cannot be deemed as null and void (see Supreme Court Decision 2010Da85379, Dec. 27, 2012). Such a legal principle also applies to the designation of an

2) In light of the above legal principles, the Plaintiff’s failure to obtain the consent of more than 1/2 of the landowners subject to the instant urban planning facility project is serious in its defect, taking into account the following: (a) the Plaintiff, through the designation of the instant project implementer and the authorization of the implementation plan, is given the status of an administrative body capable of exercising public authority on certain matters, such as the right to expropriate land, etc. necessary for the relevant project within the scope of implementation of an urban/Gun planning facility project; (b) the private business entity is an effective requirement to be designated as a project implementer; (c) the land ownership requirement and the requirement for the consent is an effective requirement for the designation of the project implementer; and (d) the aforementioned requirements for ownership and the requirement for consent are the most important elements under the laws and regulations for the designation and authorization of the implementation plan of the project implementer

3) However, Article 86(7) of the National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree of the same Act provide that the consent of at least 1/2 of the total number of landowners should be obtained as an implementer of an urban planning facility project. In full view of the following: (a) there was room for dispute over interpretation because the legal principles on the scope of information or consent to be provided at the time when the landowner decides whether to give such consent are clearly revealed; (b) the requirements for the Intervenor’s ownership of land equivalent to at least 2/3 of the area of the land subject to an urban planning facility project, which is a different requirement for designation as a project implementer, are satisfied; (c) at the time the Defendant requested the instant consent to the landowners; and (d) the Defendant’s plan to attract “Meat low-class distribution facilities” to the relevant land at the time of demanding the instant consent, or providing some information on the modification of the instant urban planning plan through telephone counseling; and (d) there was no objective consent to establish the urban planning facility project at least 1/2 of the landowner.

(5) Sub-committee

Therefore, the instant disposition of designating a concessionaire is unlawful because the Intervenor did not meet the requirements for consent under Article 86(7) of the National Land Planning and Utilization Act and Article 96 of the Enforcement Decree of the National Land Planning and Utilization Act, and there is a defect that can be revoked, and it cannot be deemed as an invalidation.

B. The nullification or revocation of the authorization of the instant implementation plan

(1) Determination on the assertion of public interest

In full view of the forms and contents of each provision of the National Land Planning and Utilization Act, the Enforcement Decree of the same Act, and the enforcement regulations of this case, and the fact that the authorization of an implementation plan for an urban planning facility project is for realizing the specific urban planning facility project in accordance with the determination of an urban planning facility project, an administrative agency may affirm the implementation plan by examining not only whether the implementation plan meets the standards for the determination, structure, and installation of urban planning facility project as prescribed by the Act and subordinate statutes, but also whether the implementation plan constitutes a facility to be provided for use by the general public in terms of operating methods, i.e., whether the public interest is recognized. Whether it constitutes a facility to be provided for use by the general public ought to be determined based on whether the possibility of use of the facility is substantially open to the general public, taking into account the number of the general public who uses the relevant facility, whether the facility is open for use of the facility, the scale of the facility, and public factors

In light of the above legal principles, in full view of the following circumstances, which can be seen by adding up the aforementioned evidence and the purport of the entire pleadings with respect to the instant case, the authorization of the instant implementation plan for building the Bullet, which is an urban planning facility, is lawful.

Pursuant to Article 2 subparagraph 6 (c) and subparagraph 7 of the National Land Planning Act, Article 43 (1) and (2) of the same Act, Article 2 (1) 3 of the Enforcement Decree of the same Act, Article 82 (1) 1 of the Enforcement Rule of the same Act, Article 2 subparagraph 3 and 3 of the Distribution Industry Development Act, among urban planning facilities as provided in Article 2 subparagraph 6 (c) and Article 2 (7), Article 43 (1) and (2) of the same Act, and Article 82 (1) 3 of the Enforcement Rule

In general, the infrastructure should be supplied for urban community, but it refers to a facility that requires public intervention in terms of the location determination, installation, and management of the facility due to its public nature or external economic nature. Considering the wide range of discretion held by administrative entities in the area of administrative planning that creates infrastructure, the complexity, diversification, and qualitative improvement, etc. of modern urban life, it is difficult to deem that the infrastructure is not the infrastructure solely on the ground that the value of the infrastructure, which is nothing more than the pursuit of happy life of the citizens of the relevant facility, and the request of the public nature derived therefrom, is satisfied.

○ The Galet of this case has reached approximately 50,00 square meters of underground floor and 3 floors above ground, and the building area has reached approximately 50,000 square meters, and there is a high possibility of being used by many and unspecified people in terms of stores such as 250 clothing stores, restaurants, carpets, and film theaters, etc. In light of their location and scale, it is predicted to improve the quality of life of the people directly and indirectly, such as creation of large volume of jobs and creation of jobs in light of their location and scale, and promotion of surrounding tourism products expected to be visited from neighboring cities, and increase of revenues from the development of the distribution industry.

(2) Determination on the assertion of unconstitutionality of the National Land Planning Act and the instant Enforcement Rule

(A) Article 75 of the Constitution provides that "the President may issue Presidential Decrees with regard to the matters delegated by the Act and matters necessary for enforcing the Act, which are specifically defined by the Presidential Decree." The delegated matters here refer to the matters that are specified by the Presidential Decree and the basic matters of the contents and scope that are already stipulated by the Act, and any person can predict the outline of the contents that shall be stipulated by the Presidential Decree from the relevant Act. However, the degree of the request for the specification and clarity of the delegation, however, if various factual relations are regulated or the factual relations are anticipated to change from time to time according to the type and nature of the regulated object, depending on the degree of the regulation subject, should be mitigated. Even if the specific scope of delegation is not clearly defined, if it can objectively clearly determine the scope or limits inherent in the delegation clause in light of the overall structure and related regulations of the relevant Act, it cannot be deemed as a general and comprehensive delegation (see, e.g., Constitutional Court Order 2003Hun-Ga18, Oct. 28, 2004).

(B) Article 2 of the National Land Planning and Utilization Act provides for distribution business facilities, water, electricity and gas supply facilities, broadcasting and communications facilities, utility tunnels, and other distribution and supply facilities prescribed by Presidential Decree among infrastructure (Article 6). Article 2(1)3 of the Enforcement Decree of the National Land Planning and Utilization Act provides that distribution business facilities, water, electricity, gas and heat supply facilities, broadcasting and communications facilities, utility tunnels, markets, oil storage and oil supply facilities through distribution and supply facilities, and Article 2(1)3 of the Enforcement Decree of the National Land Planning and Utilization Act provides that the types, names, locations, and scale of facilities shall be determined by an urban/Gun management plan in advance to build infrastructure (Article 1). Article 43 of the National Land Planning and Utilization Act provides for matters necessary for the determination, structure, and installation of urban/Gun planning facilities (Article 2(1)), and that the total area of a store and a large-scale store is at least 0 square meters within the area of a market under Article 82 subparag. 1 of the Enforcement Rule of the instant case, which is at least 30 stores or a complex.

(C) In light of the above legal principles, the term “distribution and supply facilities” under Article 2 subparag. 6 of the National Land Planning and Utilization Act refers to a utility tunnel as a part of distribution and supply facilities under Article 2 subparag. 6 (c) of the National Land Planning and Utilization Act, and Article 2 subparag. 6 (c) of the National Land Planning and Utilization Act stipulates distribution business facilities, water, electricity and gas supply facilities, broadcasting and communications facilities as well as distribution and supply facilities under the same item, so it is possible to predict the contents to be prescribed by the Presidential Decree. In addition to the general common sense in the purport of the National Land Planning and Utilization Act, distribution and supply facilities can be recognized as public necessity by themselves. Thus, it is different from the “sports facilities” under Article 2 subparag. 6 (c) of the National Land Planning and Utilization Act, without limiting the specific scope, on the ground that the legislation was delegated to the Presidential Decree comprehensively on the ground that the type and scale of distribution and supply facilities can change depending on the changing times, and it is more reasonable to delegate this to the subordinate statutes.

(D) In addition, the instant Enforcement Rule was enacted to stipulate matters concerning the subdivision and scope of infrastructure pursuant to Article 43(2) of the National Land Planning and Utilization Act and Article 2(3) of the Enforcement Decree of the same Act, and Article 2(1)3 of the Enforcement Decree of the same Act provides for the types, criteria for determination, structure, and installation standards of the market with respect to the “market” under Article 8 of the Enforcement Decree of the same Act in detail, and includes a superstore under Article 2 subparag. 3 of the Distribution Industry Development Act. In general, the term “market” refers to a certain place where goods and services are traded between consumers and suppliers. The term “large-scale store under the Distribution Industry Development Act” refers to a certain place where goods and services are traded between consumers and suppliers, and it is apparent in the language and text of the relevant provision, and thus, has more public interest in consideration of the influence derived from the facilities and scale, and thus, the instant Enforcement Rule in question does not exceed the scope delegated by a large enterprise for profit.

(3) Sub-decisions

Therefore, this part of the plaintiffs' primary and conjunctive claims are without merit, that there is no public interest in the authorization of the implementation plan of this case, and that there is grounds for invalidation or revocation based on the invalid statute.

C. The part on invalidity confirmation or revocation of the acceptance ruling of this case

In light of the fundamental purport of Article 23 of the Constitution that a public expropriation shall be limited to the minimum inevitable extent in the request of guarantee of property rights under the Constitution, it is not permitted to exercise the right of expropriation against the public interest of the project operator after obtaining the project approval, when the project operator loses the public interest of the person related to the project approval, or when the interests of the person related to the project approval considerably violates the principle of proportionality, or when the project operator has lost the intent or ability to carry out the relevant public service, even though the project operator has lost its capacity to carry out the relevant public service, it is against the public interest of the right of expropriation (see Supreme Court Decision 2009Du1051, Jan.

As seen earlier, the Ministry of Health and Welfare held that the construction project of this case has public interest, and there are no other circumstances to deem that the construction project of this case has lost public interest after the decision to authorize the implementation plan of this case. Thus, the main and ancillary claims of Plaintiffs 11, 12, and 18 on different premise are without merit.

4. Conclusion

Ultimately, the designation of the project implementer of this case cannot be deemed to be null and void as it is illegal, and the authorization of the implementation plan of this case and the ruling of acceptance of this case are legitimate. Thus, the plaintiffs' claim to nullify the invalidity of the designation of the project implementer of this case against the defendant Mineyang market, the plaintiffs' primary and conjunctive claim against the defendant 1, 11, 12, and 18 for the authorization of the implementation plan of this case against the defendant, and the main and conjunctive claim against the plaintiff 11, 12, and 18 for the adjudication of acceptance of this case shall be dismissed as all of the grounds for rejection. Since the part against the defendants in the first instance judgment against the defendants is unfair, it is so revoked and the above claim against the

[Attachment]

Judges Lee Chang-sung (Presiding Justice) Kim Ho-ho Kim

Notes 1) The date of submission equivalent to three pages of each letter and the date of preparation at the bottom shall be different depending on the time of delivery.

Note 2) The name under paragraph (2) of the written consent, and paragraph (6) of the ownership of each owner are written in the form of fluence and land status by each owner.

Note 3) An increased road site is a state-owned or public land and is irrelevant to the requirements for designation of a project implementer under Article 86 of the National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree of the National

Note 4) See the Constitutional Court Order 2008HunBa166, 2011HunBa35 (Joint) Decided June 30, 2011