2. Of the costs of lawsuit, the part pertaining to the Plaintiff’s participation shall be borne by the Intervenor, and the remainder of the costs of lawsuit shall be borne by the Plaintiffs including the part pertaining to the third party participation.

A. On June 28, 2006, Plaintiff Barun Construction Co., Ltd. (hereinafter “Plaintiff Barun Construction”) requested the Minister of Land, Transport and Maritime Affairs to approve a development restriction zone management plan with the content of establishing a public golf course at KRW 65-14, Danam-dong, Gyeyang-gu, Incheon. The Minister of Land, Transport and Maritime Affairs approved a development restriction zone management plan with the size of 606,200 square meters on April 24, 2008, the total floor area of which is 9,020 square meters.

B. On June 9, 2008, the Plaintiff Barun Construction proposed to the Defendant to develop a public golf course in Gyeyang-dong, Incheon. On October 5, 2009, the Defendant, following deliberation by the Urban Planning Committee, conducted an urban management plan (e.g., urban planning facilities: sports facilities) and an announcement of topographical drawings (e., Incheon Metropolitan City Notice No. 2009-312) with the content that a public golf course of 12 holes is installed on a public golf course of 65-14 square meters in Gyeyang-dong, Incheon Metropolitan City (hereinafter “instant site”).

C. The instant project site owns approximately 86.7 48 m2,836 m2, which is approximately 86.7%, by Plaintiff 3, and approximately 11.3 m24 m24 m24 m2, which is about 11.3%, respectively, by 26 persons, including the Nonparty. The remainder of 18 m2% is state-owned and public land, and 14 m2,039 m2, which is about 26 m26 m26 m26 of whom the Plaintiffs planned to create a public golf course.

D. On May 31, 201, the Plaintiffs submitted to the Defendant an application for designation of a project implementer and authorization of an implementation plan with the purport that they would be designated as joint implementers of the instant project. However, on June 8, 2011, the Defendant rejected the said application on the grounds that the requirements for land ownership under the relevant statutes are not met, and thus the project implementer’s eligibility is not satisfied.

E. On June 16, 2011, the Plaintiffs submitted to the Defendant an application for designation of a project operator and for authorization of an implementation plan to the effect that the Plaintiffs, who are joint business operators, own land equivalent to at least 2/3 of the area of the land subject to the project, and satisfy the relevant statutory requirements. However, the Defendant returned the said application on June 20, 201 for the same reason as the foregoing paragraph

F. On April 30, 2012, the Defendant: (a) rendered a decision to alter urban management planning [a public golf course (a sports facility)] and a public notice of topographic drawings (a public notice of Incheon Metropolitan City Notice No. 2012-101) (hereinafter “instant disposition”) on the following grounds; (b) on April 30, 2012, the Defendant rendered a public notice of the change in urban management planning (a

Table 1 in the main sentence: ① Preservation of the natural environment and scenery in Gyeyangsansan mountain area and the improvement and restoration of damaged natural environment and scenery; ② Protection of the identity and cultural heritage of Gyeyangsan mountain area, which is historical, cultural, and local relics; ③ Implementation of the Gyeyangsan Mountain Protection Ordinance; ④ Acceptance of central policies that do not determine private golf courses as urban planning facilities; ⑤ Creation of forest resort park as a forest resort park to provide Incheon citizens with sound leisure and resting space; 6 Securing green space for the public interest of Incheon citizens; and promotion of public welfare.

G. Meanwhile, the Plaintiff’s Intervenor is a resident living in the vicinity of the instant project site or the owner of the land and building in the instant project site, who has expected interest in the occurrence of property benefits arising from the instant project and the improvement of the surrounding environment, and the third party’s intervenor in the lawsuit is likely to have concerns over environmental and health damage and property damage arising from the implementation of the instant project while the construction of the Plaintiff’s lawsuit around December 2009, residing within 1 km in the radius of the area subject to environmental impact assessment based on the environmental impact assessment submitted to the Defendant, or operating the weekend farm, restaurant, etc.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, 10, 17, 18, Eul evidence Nos. 2, 5, Eul evidence Nos. 2 and 7, and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's assertion

1) Standing to sue: At least a project implementer must be designated to assert the existence of an urban management plan; Plaintiff Barun Construction merely proposed the formulation of the instant urban management plan; Plaintiff Barun Co., Ltd. (hereinafter “Plaintiff Barun”) is limited to a third party who entered into an internal contract with Plaintiff Barun Construction to operate a golf course after the completion of the instant public golf course development project (hereinafter “instant project”); and Plaintiff 3 is a landowner of the instant project site and a related party to Plaintiff Barun Construction, but is unrelated to the instant project, and there is no standing to sue to seek the revocation of the instant disposition.

2) The benefit of a lawsuit: The legal basis of the instant urban management plan itself was extinguished by the Constitutional Court’s ruling of inconsistency with the Constitution as to the “sports facility” under Article 2 subparag. 6(d) of the former National Land Planning and Utilization Act (amended by Act No. 11579, Dec. 18, 2012; hereinafter “former National Land Planning Act”). The said “sports facility” was amended to “sports facilities deemed necessary for public use,” but there was no transitional provision in the Addenda to the amended Act, even if the instant disposition was revoked, the Plaintiffs cannot implement the instant project based on the amended Act, and thus, there is no benefit of lawsuit.

B. Determination

1) As to standing to sue

Even if a third party is not the direct counter-party to an administrative disposition, if any legal interest protected by law is infringed due to the administrative disposition, he/she is entitled to file a revocation lawsuit, and the legal interest refers to the direct and specific interest protected by law based on the relevant administrative disposition, and it does not include the case where the third party is merely an indirect or factual interest in relation to the relevant administrative disposition.

The facts that Plaintiff 3 promoted the project in this case, such as proposing the drafting of the instant urban management plan and submitting an environmental impact assessment report to the Defendant, and that Plaintiff 3 owned the land of approximately 86.7% of the project site in this case, and the Plaintiffs filed an application to the Defendant for designation as the joint implementer of the project in this case on May 31, 2011 and June 16, 2011, but again returned by the Defendant, as seen earlier, the fact that the Plaintiffs filed a lawsuit against the Defendant seeking revocation of the return of the application for designation of the project implementer in this case (Seoul District Court Decision 2012Guhap3662) and received a favorable judgment on November 16, 2012, and the fact that the lawsuit in this case is pending after the Defendant’s appeal is not disputed between the parties or is obvious to this court.

As such, although it was not possible to acquire the status of the project implementer with respect to the instant urban management plan until the date of closing argument, it is reasonable to view that the Plaintiffs, who had taken the procedure to be designated as the project implementer based on the instant urban management plan and Article 86(7) of the National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree of the same Act before the instant disposition, have a direct and specific interest protected by the National Land Planning and Utilization Act, which is the relevant law, as to the continuation of the instant urban management plan. Thus, the Plaintiffs

Therefore, this part of the defendant's main defense is without merit.

2) As to the interest in the lawsuit

The Constitutional Court en banc Decision 208Hun-Ba166, 2011Hun-Ba35 Decided June 30, 201, en banc Decision 2008Hun-Ba16, 2011, en banc Decision 2011Hun-Ba35, one of the infrastructure that can be determined as urban planning facilities, “public and cultural facilities, such as schools, playgrounds, public buildings, cultural facilities, and sports facilities” (hereinafter “instant definition provision”) shall be limited to the scope deemed necessary for delegation to the Presidential Decree, although the kinds and scope of sports facilities should be limited to the scope deemed necessary for public use in order to delegate the same to the Presidential Decree, as the Presidential Decree delegates the contents of the sports facilities without any restriction. Accordingly, the Constitutional Court declared that the amendment was made on December 31, 2012 and decided on December 31, 2012 to continue to apply the same. According to the foregoing constitutional nonconformity decision, the instant definition provision was amended as a “public sports facilities” deemed necessary.

As can be seen, insofar as the Constitutional Court ordering the provisional application of the definition clause of this case and did not limit the scope of its application separately, the definition clause of this case shall be equally applied before the enforcement of the above amendment. Even if the definition clause of this case loses its validity by the decision of inconsistency with the Constitution, insofar as the determination of the instant urban management plan does not automatically become null and void (see, e.g., Supreme Court Decision 2012Du21796, Jul. 12, 2013), insofar as the determination of the instant urban management plan does not automatically become null and void (see, e.g., Supreme Court Decision 2012Du21796, Jul. 12, 2013), deeming the above public golf course installed by the Defendant for public use as “sports facilities deemed necessary for public use,” it is not impossible

Therefore, we cannot accept this part of the defendant's main defense.

3. Judgment on the merits

A. The plaintiffs' assertion

The plaintiffs asserted that the disposition of this case is unlawful on the following grounds, and seek the revocation thereof.

1) The grounds for disposition presented by the Defendant, i.e., the purport of the decision to modify (a) the instant urban management plan (Evidence 2) is unreasonable on the grounds of abolition of the instant urban management plan as follows, or no specific material is presented. The instant disposition was conducted voluntarily by the head of a local government on July 2010 (the Defendant) with knowledge that the instant urban management plan was contrary to the administrative continuity and trust for private business operators, without undergoing a substantial review of related interests and a reasonable balancing of interests, and did not exercise discretion in the process of balancing profits.

A) The instant disposition is not intended to establish a new urban management plan by balancing public and private interests, but rather, to abolish the urban management plan legally determined by balancing interests through consultation with the Han River Basin Environmental Office, the Korea Forest Service, the Cultural Heritage Administration, and the neighboring military units, thereby making it impossible to develop the legally determined urban management plan according to the purposes of the existing urban management plan. As such, it is equivalent to the cancellation of the beneficial administrative act. Therefore, there should be new public interests or significant changes in circumstances that take precedence over the Plaintiffs’ trust and legitimate interests.

B) The Plaintiffs intended to build rest and convenience facilities for residents in the beginning of the instant project site, and build a Danam-dong neighboring park separate from its neighboring areas. In light of the Defendant’s poor financial situation, management status of Gyeyangsansan, etc. where livestock pens, etc. are in progress, it is apparent that the Defendant’s purpose of public interest listed as the grounds for the instant disposition cannot be achieved through the instant disposition. Rather, it is obvious that the Defendant’s purpose cannot be achieved through the instant disposition. Rather, it is possible to protect the natural environment and provide the Incheon citizens with a sound leisure and resting space by constructing eco-friendly public golf courses and neighboring parks in accordance with the instant urban management plan.

C) The Gyeyangsan City Ordinance on the Protection of Mountain Villages enacted by the Incheon Metropolitan Council is a very exceptional ordinance enacted for the protection of a specific mountain, and was enacted to ensure formal legitimacy in the process of unreasonably changing the administrative plan. It is not an invalidation of the instant urban management plan that has already been determined and publicly notified due to the decision of inconsistency with the Constitution on the definition clause of this case or due to the amendment of relevant laws and regulations.

2) The instant disposition goes against the Ministry of Land, Transport and Maritime Affairs’s Guidelines for Formulation of Urban Management Planning (Ordinance No. 771 of the Ministry of Land, Transport and Maritime Affairs’s Directive) 1-7-1-2.

3) The instant disposition is in violation of the principle of trust protection, as it infringes on the Plaintiffs’ trust interests worthy of protection, which are considerable expenses and efforts for several years, such as making a joint agreement to promote the instant project by trusting the Defendant’s public opinion list through the public notice of the instant urban management plan, conducting a resident public hearing, environmental impact assessment, cultural heritage index survey, etc., and completing the application for designation of a project implementer and the application for

B. Relevant statutes

[Attachment] The entry is as follows.

C. Determination

1) The legal doctrine on determining the legality of the abolition of an administrative plan

Under the National Land Planning and Utilization Act, an urban management plan is a kind of administrative plan established as an activity standard to realize a certain order at a certain point in the future by integrating and coordinating relevant administrative means in order to achieve a specific administrative objective, such as the construction, maintenance, and improvement of a city based on professional and technical judgments on administration. Relevant Acts and subordinate statutes, such as the National Land Planning and Utilization Act, only provide abstract administrative objectives and procedures, and do not provide for the contents of the administrative plan, and thus, an administrative body has a relatively wide range of freedom at the time of formulating and determining a specific administrative plan. However, the freedom of such formation, which an administrative body has, is not unlimited, but also limited to the interests of the persons involved in the administrative plan, as well as the mutual interest and private interest between the public and private interests. Thus, if an administrative body fails to implement the balance of interests when formulating and determining the administrative plan, or where the interests are omitted, but lack in legitimacy and objectivity, such determination is a defect in the administrative plan, and thus, the same applies to the enactment of the urban management plan.

2) Whether a defect in the sentence is illegal

In full view of the following circumstances, as a whole, the evidence Nos. 11, 18, B, 6 through 8, 13, 20, 24, 26 through 31, 24-2, 44-2, B, and 11, and the overall purport of the pleadings including the result of the examination by this court, it is difficult to view that the Defendant did not completely implement the balance between public and private interests, between the public and private interests, or between the private interests, or lack of legitimacy and objectivity in the balance of profits.

① In light of the fact that the Plaintiffs were not yet designated as a project implementer, and the urban management planning was established not to set up rights to draft proposers or to protect the interests of specific persons, but to promote public welfare and improve the quality of life of citizens, and that the exercise of rights by landowners within the pertinent urban management planning was under certain restrictions, it is difficult to view the determination of the instant urban management planning as beneficial administrative disposition against the Plaintiffs.

② The Plaintiffs, as otherwise alleged, have invested more than KRW 5.2 billion in the cost of outsourcing services and operating expenses for the instant project, among them, either requesting approval of a development restriction zone management plan prior to the public announcement of the instant urban management plan, or making a proposal to formulate the instant urban management plan (including KRW 1,457,900,000, out of KRW 2,840,40,400,000, which is claimed by the Plaintiffs to have been paid).

(3) The expected profits of neighboring residents, including the Plaintiff’s Intervenors who create employment, develop neighboring business districts, improve the environment, and use sports facilities, shall not be met only by constructing a public golf course, but may also be achieved by creating a forest resort park promoted by the Defendant as follows:

④ Even if an urban planning facility intended to be installed in the instant urban management plan is a public golf course, not a membership golf course, it cannot be deemed a facility that can be easily used by citizens in the reality where there is a certain economic constraints in its use (According to the statistics collected by Statistics Korea in 2011, the number of times the leisure facility was used in the year 2011, while the golf course user among all citizens reaches 6.1%, the bathing hall and recreational forest user reaches 29.1%).

(5) The mountain village of 395 meters in the amount of piracy is a mountain village in Incheon, which has relics, such as a mountain village of Incheon, if the mountain mountain, a luxal and fluoral relics, such as a scenic spot, scenic spot, fluoral ground, and a fluoral school (Seoul Metropolitan City tangible Cultural Heritage No. 12). The mountain village of 395 meters in the Republic of Korea forms both documents and shocks, such as gluor, gluoral fluor, a natural monument, a natural monument, gluor, etc., a natural monument, gluoral gluor, a fluoralum, a preserved species designated in Incheon City, a gluoral and gluoral glus, etc., and the representative mountain and resting space in the Incheon City area where it can easily access the Incheon city.

6) As indicated in the drawing below, there is a dry field where hydrogen galkin galkin galkin galkin galkin galkin galkin galkin galkin galkin galk field, and some galkin galkin galk field are passing through the instant project site, including dry field. The Plaintiffs planned to install a golf course both as dry field galk field, which combine both courses, such as the Plaintiffs’ design, to be separated from galkin galkin galkin galkin, and the galkin galkin galkin is deemed to have been destroyed by the green area due

A person shall be appointed.

7) The plaintiffs claim that golf courses will be established mainly in the damaged area, such as the above drawings, to preserve the original form of the green area, and that the green area will be developed in an environmentally friendly manner by creating a shielding forest, ecological corridor, substitute habitats, and natural ecological pond. However, there is still a concern that the environment might be damaged due to changes in topography due to cutting and earth-raising in the course of the construction and operation of golf courses, noise generation, animal habitat destruction and disturbance, vegetation reduction, agricultural chemicals, fertilizers, etc.

8) The Local Autonomy Act grants independent authority to the head of a local government as a deliberative body and a local government as an executive body and maintains mutual checks and balance. As such, the local council may enact municipal ordinances to the extent that it does not infringe on the local government’s inherent authority with respect to autonomous affairs. The Incheon Metropolitan City Council enacted the Gyeyangsan Ordinance to protect natural resources and ecosystems in Gyeyangsan by Ordinance No. 4999 on October 24, 201.

① On December 2006, at the public opinion poll of the Incheon Daily, 83.6% of the citizens of Incheon City (83.1% of all citizens) opposed to the plan to create nature-friendly recreational forests and arboretums was approved by 89.4% of the citizens of Incheon. On July 2011, the public opinion poll respondeded that the construction of mountain golf courses in Gyeyangsan was blanked by 37% of the citizens of Incheon and 23% of the 2006.

(10) From January 21, 2011 to February 7, 2011, the Defendant provided the residents’ perusal and public announcement to abolish the instant urban management plan and provided the interested parties with an opportunity to present their opinions, and 6,145 of 6,146, among those who submitted their opinions, consented to the abolition of the instant urban management plan. Accordingly, the Plaintiffs asserted that the public inspection was carried out unilaterally and formally, in light of the fact that the public inspection period was too short and that only one opposing slip was less than one time when excluding holidays. However, such circumstance alone cannot be readily concluded that there was any defect in the procedures for collecting opinions.

1) The Defendant, prior to the instant disposition, made a resident inspection and public announcement to abolish the instant urban management plan; on March 7, 201, proposed a plan to create an arboretum and natural recreation forest instead of a public golf course in the instant project site on March 7, 2011; and accordingly, on April 13, 2011, the Plaintiff proposed a plan to exchange or purchase land with Plaintiff 3’s land or purchase, and tried to negotiate several times for a considerable period of time by exchanging the instant project site with the land owned by Plaintiff 3 or presenting an alternative to purchase Plaintiff 3’s land annually; and the Plaintiffs’ opinions related thereto were submitted to undergo deliberation procedures by the Urban Management Committee.

(12) Although the plaintiffs asserted that the defendant did not undergo an environmental impact assessment in the course of the instant disposition, there is no legal ground to view that the plaintiff should undergo an environmental impact assessment again to abolish the urban management plan, since there is no project subject to the environmental impact assessment stipulated in the Environmental Impact Assessment Act when the urban management plan is abolished (In addition, the Ministry of Land, Infrastructure and Transport does not require an environmental impact assessment upon the abolition of

(13) Around July 2012, the Defendant promoted a project to create a Gyeyang Forest Park in an area of 2,379,273 square meters in Gyeyangsan, for the year 2018, and secured KRW 350 million as the cost of service in 2012 with the cost of restoring habitats. Around May 2012, the Defendant completed a project to create a mountain path in the vicinity of Gyeyangsan which combines the Gyeyang Forest with the Gyeyang Youth Training Center by inserting the project cost of KRW 542 million in the cost of work and inserting the amount of KRW 542 million in the cost of work to restore habitats. On November 12, 2012, the Defendant announced that the Gyeyang Forest Park and Gyeyang Forest Park, which is a leisure facility for citizens, and the establishment of the Incheon Metropolitan City Basic Urban Planning 201-25 Incheon Metropolitan City Basic Urban Planning, which includes the nature-based culture and culture of the Gyeyang Park and the Gyeyang Park, etc. (Seoul Metropolitan City 2012).

(14) Although the Plaintiffs asserted that they have no actual intent and financial capacity to create a historical park and forest resort park in Gyeyangsan, it is not desirable for the judiciary to judge whether it is possible or not to determine whether a large scale of finance can be implemented or not, due to the Defendant’s financial failure, the instant disposition is not unlawful due to the Defendant’s financial failure, and it is also difficult to view that the Defendant has a duty of balancing profits by predicting that the administrative plan cannot be implemented in the future as a financial problem.

Therefore, the plaintiffs' assertion that the disposition of this case was unlawful because it was conducted without reasonable balancing of the public interest to be achieved and the private interest to be infringed.

(iii) whether an urban management plan formulation guideline (Ministry of Land, Transport and Maritime Affairs Directive No. 771) is violated

The so-called “administrative rules or internal guidelines” issued by a superior administrative agency to a subordinate administrative agency with respect to the interpretation and application of the business rules or statutes is generally effective only within the administrative organization, and do not have external binding force, and thus, such administrative disposition is not immediately unlawful solely on the ground that it violated such administrative rules. Provided, That if administrative rules, which are the rules for the exercise of discretionary power, have been enforced as prescribed by the rules for the exercise of discretionary power, become effective and administrative practices have been carried out, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust. Thus, barring any special circumstance, barring any special circumstance, any disposition in violation thereof is an illegal disposition that deviates from and abused discretionary power (see Supreme Court Decision 2009Du7967, Dec. 24, 2009).

The Guidelines for Formulation of an Urban Management Planning, which is the Ministry of Land, Transport and Maritime Affairs Directive, constitutes an internal administrative agency’s internal business practice rules, and, in cases where it is unreasonable to apply them as they are to some of the details of the Guidelines due to regional circumstances or conditions of the relevant region, it may be applied differently within the scope of statutes by clearly stating the reasons therefor (1-1-2.), 1-7-2-1. and 1-7-2-2. Thus, even if the instant Disposition violates the provisions of 1-7-1-2, which provide that it may not be modified within five years from the date of determination in principle, such circumstance alone cannot be said to be unlawful immediately.

4) Whether the principles of trust protection are violated

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of administrative agencies, first, the administrative agency should name the public opinion that is the subject of trust to the individual, second, when the opinion list of the administrative agency is justified and trusted, there is no cause attributable to the individual, third, the individual should have trusted the opinion list and conducted any act based on it. Fourth, by the administrative agency's disposition contrary to the above opinion list, the benefit of the individual who trusted the opinion list should be infringed.

Considering its nature, the administrative plan is premised on a future prediction, and the possibility of its fundamental alteration exists. Thus, it is difficult to deem that the Defendant expressed a public opinion regarding the maintenance of the above urban management plan or the implementation of the plaintiffs' project. Generally, given that a specific person's expectation interest in the continuation of the existing administrative plan cannot be given priority over the public interest due to the change of the administrative plan, it is difficult to deem the instant disposition to be unlawful as it violates the principle of

4. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Cho Jae-chul (Presiding Judge) (Presiding Judge)

1) GB (Belgium)/Urban Management Planning Determination and Park Planning 696,00,000 won for basic design of golf course 270,000,000 won for basic design of golf course + Environment Advisory 200,000,000 won for model-making 36,000,000 won for project feasibility analysis + KRW 50,000 for project feasibility analysis + 109,000,000 for project site maintenance and management + 16,900,000 won for aerial photography services for traffic + 50,000 won for conflict analysis + 30,000,000 won for conflict analysis.