[2] Whether Article 2 subparag. 6 (d) of the former National Land Planning and Utilization Act, which is inconsistent with the Constitution, continues to apply to a case where the Constitutional Court continuously ordered the application of the sports facilities under Article 2 subparag. 6 (d) of the same Act, until December 31, 2012 (affirmative)

If the Constitutional Court, after the issuance of an administrative disposition based on the law, decides that the law, which served as the basis for the administrative disposition, is unconstitutional, the above administrative disposition will be identical to that of the law being conducted without the basis of the law. However, the defect is serious, and it must be apparent. In general, the reason that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court renders a decision of unconstitutionality. Thus, the reason that the law, which served as the basis for the administrative disposition before the Constitutional Court renders a decision of unconstitutionality, violates the Constitution can only be the premise for the lawsuit seeking cancellation of the administrative disposition, unless there are special circumstances (see Supreme Court Decision 92Nu9463 delivered on October 28, 1994).

Meanwhile, according to Articles 2 subparag. 4, 7, 10, 30, 43, and 95 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”), an implementer of a project to install, maintain, or improve urban planning facilities determined by an urban management plan among infrastructure may expropriate or use goods or rights necessary for such project. Article 2 subparag. 6(d) of the National Land Planning and Utilization Act provides that “public cultural and sports facilities, such as schools, playgrounds, public office buildings, cultural facilities, sports facilities, etc.” as one of the infrastructure facilities determined as an urban planning facility. In this regard, the Constitutional Court held that Article 2 subparag. 6(d) of the National Land Planning and Utilization Act (hereinafter “the National Land Planning and Utilization Act”) continues to apply to the instant sports facilities until the adjudication of inconsistency with the Constitution by 208Hun-Ba16, 2011.

According to the reasoning of the lower judgment, the lower court determined to the effect that, solely on the grounds that the Plaintiff brought an action against the unconstitutionality of the definition clause, etc. of the instant case (201HunBa35), it is insufficient to recognize that the instant project approval, which is a prior disposition, was revoked or that the instant project approval was null and void. As such, the Plaintiff cannot seek revocation of the instant adjudication on expropriation on the ground that the instant project approval was not recognized as public interest, and further, the instant golf course constitutes sports facilities stipulated in the definition clause of the instant case.

Examining the above legal principles in light of the above, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on the succession of defects in the prior disposition and the validity of

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Sang-hoon (Presiding Justice)