[2] In a case where a landowner consented to the designation of a project implementer prior to the determination of an urban or Gun planning facility, whether the consent is null and void (negative in principle)

[3] The meaning of infrastructure under the National Land Planning and Utilization Act and whether facilities operated for profit-making purposes can be included in infrastructure (affirmative with restriction)

[4] The legal nature of the authorization of an implementation plan for an urban or Gun planning facility project, and the limitation of discretion exercised by an administrative agency when the implementation plan is

[2] Information on a project subject to consent to designate an urban/Gun planning facility project implementer (hereinafter “urban planning facility”) is the type, name, location, size, etc. of the relevant urban planning facility, and such information is generally provided through the determination and announcement of urban planning facilities, so the landowner’s consent is in principle obtained after the determination of urban planning facilities.

However, the National Land Planning and Utilization Act only provides for the consent requirement, and there is no explicit provision regarding the timing of consent. Moreover, considering the financial situation, it is not unreasonable to determine whether a local government, etc. has consented to the participation of a private business entity and determine whether to proceed with the project depending on the consent. Considering the above, even if the consent was received prior to the determination of an urban planning facility, unless the information on the type, name, location, scale, etc. of an urban planning facility to be installed at the time of obtaining the consent was provided to the landowner, and the subsequent determination of an urban planning facility has changed to the extent that the content of the determination of an urban planning facility has lost its identity with the information provided in advance, it cannot be deemed null

[3] Under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), infrastructure is basically supplied for urban community life, but it means a facility that requires public intervention in the determination of the location of a facility, installation, and management due to its public nature or external economic nature.

Considering the wide range of discretion of administrative bodies in the area of the administrative plan creating infrastructure, the complexity, diversity, and the degree of qualitative improvement, etc. of modern urban life, given that certain facilities fall under the infrastructure stipulated by the national land planning law, as well as the form of infrastructure that is attributable to the pursuit of happy lives of many general citizens, and that the request for public necessity is satisfied, such as the value of the infrastructure which is attributable to the pursuit of happy lives of the general public and the guarantee of free access and use by the general public, such facilities do not constitute infrastructure solely on the ground that they are operated for profit.

However, it is clear that there is a limit to discretionary power to exercise when determining urban or Gun planning facilities in order to create infrastructure or when granting authorization of implementation plans, which is subject to discretionary control.

[4] The disposition of authorization of an implementation plan for an urban or Gun planning facility project (hereinafter “urban planning facility project”) is an act of formation to realize the project in question by embodying the relevant project, and accordingly the right of land expropriation, etc. is specifically generated. Therefore, in order for an administrative agency to grant authorization of an implementation plan, the implementation plan not only meets the determination, structure, and installation standards of the urban planning facility as stipulated by the Act and subordinate statutes, but also the interests of the persons related to the disposition of authorization as well as the public interest and private interest, but also fairly compare and bridge between the public interest and private interest, and the comparative and bridge must conform

1. As to the ground of appeal on the decision to designate the project implementer of this case (ground of appeal No. 1)

A. Relevant regulations and legal principles

(1) Article 86(7) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that if a person other than the State or a local government, a public institution, or a person prescribed by Presidential Decree (hereinafter “private project operator”) intends to be designated as an implementer of an urban or Gun planning facility project, he/she shall meet the requirements prescribed by Presidential Decree concerning the size of the land (excluding State-owned and public land) subject to an urban or Gun planning facility project and the ratio of landowners’ consent. Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) provides that “requirements prescribed by Presidential Decree” under Article 86(7) of the National Land Planning and Utilization Act refers to acquiring at least 2/3 of the size of the land (excluding State-owned and public land) subject to an urban or Gun planning facility project and obtaining consent from at least a half of

(2) The legislative intent of the National Land Planning Act, except for the case where a private business entity cites the laws and regulations, is to supplement the public nature of an urban planning facility project implemented by a private business entity and to control the unilateral expropriation by a private business entity (see, e.g., Supreme Court Decision 2016Du35120, Jul. 11, 2017). In light of such legislative intent, in order for the landowner’s consent to designate a project implementer to be valid, prior to obtaining the consent, the purpose of the consent to designate a project implementer, the project implementer designated by the consent, and the project subject to the consent to be implemented by the said consent, should be specified, and the information should be provided to the landowner.

B. Whether the purpose of consent is specified

(1) The lower court determined to the effect that the purpose of the consent for the designation of a project implementer is specified and delivered to the landowner, in light of the fact that the letter issued to the landowner at the time of the receipt of the instant written consent reveals that the said written consent was based on Article 96 of the Enforcement Decree of the National Land Planning and Utilization Act, and that the said written consent contains the same text stating that “the implementer of an urban planning facility project or the prospective implementer consents to the land owned by him/her in accordance with the consent of the implementer of an urban planning facility project or the prospective implementer of the project,” along with the above written consent, a written statement stating that “

(2) Examining the reasoning of the lower judgment in light of the purport of the relevant provision and the legal doctrine as seen earlier, the lower court did not err by misapprehending the legal doctrine on the specification of consent purpose.

(c) Whether the project implementer is specified;

(1) The lower court acknowledged the fact that the Defendant Mineyang Market received the instant consent form on behalf of the landowner in accordance with the entrustment contract with the Defendant’s Intervenor, and that the “urban planning facility project implementer or prospective implementer” in the instant consent form “a project implementer or prospective implementer of the instant urban planning facility project” was printed in the same text as “a project implementer or prospective implementer of the urban planning facility project under the designation of the

(2) On the premise of such fact, the lower court determined to the effect that it is permissible to specify a project operator subject to consent by such delegation method, on the grounds that the landowner cannot be deemed prohibited from entrusting the competent administrative agency with the determination of the project operator, and that the landowner’s signing even with the confirmation of the above content of the consent can be deemed to have expressed a comprehensive consent intent regarding the project operator’s act as the project implementer.

(3) Examining the reasoning of the lower judgment in light of the purport of the relevant provision and the legal doctrine as seen earlier, the lower court did not err by misapprehending the legal doctrine on the specificness of the project implementer subject to consent.

(d) whether a project subject to prior consent is specified (whether prior consent is permitted);

(1) Information on a project subject to consent to be provided to a landowner to obtain consent for designation as a project operator is the type, name, location, size, etc. of the relevant urban planning facility, and such information is generally provided through the determination and announcement of the urban planning facility, and thus, the landowner’s consent is in principle received after the determination of the urban planning facility.

However, the National Land Planning and Utilization Act only provides for the consent requirement, and does not explicitly stipulate the timing of consent, etc. In addition, considering the financial situation, it is not unreasonable to determine whether a local government, etc. has consented to the participation of a private business entity and decide whether to proceed with the project depending on the consent. Considering the above, even if the consent was received prior to the determination of an urban planning facility, information on the type, name, location, scale, etc. of an urban planning facility to be installed at the time of obtaining the consent was provided to the landowner, and the subsequent determination of an urban planning facility has been changed to the extent that the content of the determination of an urban planning facility has lost its identity with the information provided in advance, it cannot

(2) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following circumstances.

(A) At the time of receiving the instant written consent, the Defendant Mineyang City provided the land owner with information, such as the location of urban planning facilities (a project complex of the Geumcheon-gu District Unit Planning), type and name (construction of domestic main distribution facilities), size (76,538 square meters), etc. by means of sending the written text, etc. at the time of receiving the instant written consent or by means of resident briefing sessions

(B) Since then there was a partial change (97,826 square meters) in the determination of urban planning facilities with respect to the facility size (76,538 square meters) among the above information provided to a landowner, but there was no significant change in the remainder.

(C) The instant determination of urban planning facilities was partially modified among the sub-unit planning, which is the existing urban management planning, and the landowner was aware of the approximate location and scale of the project subject to consent through the existing urban management planning and topographic drawings, etc.

(3) Examining these circumstances in light of the legal principles as seen earlier, insofar as it is difficult to deem that the basic information on urban planning facilities to be installed in the future was provided to the landowner and that the decision on urban planning facilities was changed to the extent that the identity of the decision on urban planning facilities was changed thereafter, it cannot be deemed that the instant project operator’s consent was null and void solely on the ground that the consent was made prior to

(4) Some of the reasoning of the lower judgment are insufficient, but the lower court, which determined that the instant project implementer’s designation decision was not void as a result, is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the timing of consent, etc., thereby affecting the conclusion of the judgment.

2. As to the grounds of appeal on the instant disposition approving the instant implementation plan (Ground of appeal Nos. 2 and 3)

A. Relevant provisions

Article 2 of the National Land Planning and Utilization Act provides for the distribution and supply facilities prescribed by Presidential Decree, such as distribution business facilities, water, electricity and gas supply facilities, broadcasting and communications facilities, utility tunnels, etc. among infrastructure (Article 6(c)); and urban/Gun planning facilities are those determined by urban/Gun management plans among infrastructure (Article 7). 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, and the additional subdivision and specific scope of infrastructure under paragraph (3) shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.

Article 82 Subparag. 1 of the Regulations on the Determination, Structure, and Standards for Installation of Urban or Gun Planning Facilities (hereinafter “Rules on Urban Planning Facilities”) provides for “large-scale stores” under Article 2 Subparag. 3 of the Distribution Industry Development Act as one of the markets. Article 2 Subparag. 3 [Attachment Table] of the Distribution Industry Development Act provides that “a group of stores with a total floor area of at least 3,000 square meters, excluding service places, is ordinarily operated as one or several stores located in one building or in at least two adjacent buildings prescribed by Presidential Decree, and that meet all the requirements that the total floor area of the stores is at least 3,000 square meters” among “a group of stores with a store with a total floor area of at least 3,00 square meters, which is a group of stores with cultural and tourist facilities, and serves as a group of stores developed, managed, and operated by one company.”

B. Whether the “superstore” can be included in the infrastructure

(1) Under the National Land Planning and Utilization Act, infrastructure must be supplied for urban community, but it means a facility that requires public intervention in the determination, installation, and management of the location of the facility due to its public nature or external economic nature.

Considering the wide range of discretion of administrative bodies in the area of administrative planning creating infrastructure, the complexity and diversity of modern urban life, and the degree of qualitative improvement thereof, etc., given that certain facilities fall under the infrastructure stipulated in the national land planning statutes, as well as the form of infrastructure, and as long as the facilities are valuable as the infrastructure which is nothing more than seeking a happy life for many general citizens, and meet the request for public necessity, such as ensuring the free access and use of such infrastructure by the general public, such facilities do not constitute infrastructure solely on the ground that they are operated for profit-making purposes.

However, it is clear that there is a limit to discretion when the administrative body makes the determination of urban planning facilities or makes the disposition of authorization of the implementation plan in order to build infrastructure, which is subject to discretionary control.

(2) The lower court determined that the “large scale store” stipulated in Article 82(1) of the Regulations on Urban Planning Facilities recognizes the value of “large scale store” as the infrastructure which is nothing more than the citizen’s pursuit of happy life, and that the request for public necessity is satisfied, so long as the possibility of use is open to the general public, it cannot be deemed that the project implementer is not an infrastructure solely on the ground that there is a profit-making purpose. Then, the lower court rejected the Plaintiffs’ assertion that the concept of “large scale store” does not fall under the infrastructure, and thus, does not constitute the infrastructure, and accordingly, the “distribution and supply facilities” stipulated in the Act contravenes the principle of prohibition of comprehensive delegation, or deviates from

(3) Although the reasoning of the lower judgment is somewhat insufficient, the lower court’s rejection of the aforementioned assertion on the grounds that the “large store” constitutes an infrastructure deemed necessary for public use as a result. In so determining, the lower court did not err by misapprehending the legal doctrine on the concept of infrastructure, the principle of prohibition of blanket delegation, and deviation from

C. Whether the discretionary authority of the implementation plan authorization disposition is deviates or abused

(1)The authorization and disposition of an implementation plan for an urban planning facility project is an act to realize the project in question by embodying the project and thereby specifically causing land expropriation rights, etc. Accordingly, in order for an administrative agency to grant authorization of an implementation plan, the implementation plan not only meets the determination, structure and installation standards of urban planning facilities as prescribed by the laws and regulations, but also accords with the public interest and private interest, and the mutual interest and private interest between the public interest and private interest, and the comparative and bridge must conform to the principle of proportionality.

(2) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following circumstances.

(A) Among superstoress with urban planning facilities, the size of the first floor and the third floor above the ground falling under the composite shopping mall among those stipulated by the rules of urban planning facilities is approximately 50,000 square meters, and approximately 250 clothing stores, restaurants, carpets, and film theaters, etc. are planned to be installed, and thus, it seems that the area of the building will contribute significantly to free and convenient economic and cultural activities of local residents.

(B) It appears that there were no such multiple shopping malls in the existing mining area, and a large number of local residents were demanding the installation of such large-scale distribution facilities for the convenience of living.

(C) In light of the location and scale of the pertinent ice, the creation of jobs is anticipated in local communities, and the improvement of the quality of life of local residents is expected due to direct and indirect effects, such as entry into and increase of the migratory population, and increase of tax revenues in the region.

(D) According to the Gullet of this case, there may be some damages related to the business to the existing merchants, and the private interests of the owners of land who oppose the business may be considered. However, in balancing with the benefits that local residents may enjoy, and the consent of multiple landowners as prescribed by the law, it is difficult to view that there is specific proof as to the fact that private interests related to the instant implementation plan’s authorization disposition is larger than the public interest.

(E) The instant implementation plan on the archlet seems to correspond to the criteria for the determination, structure, and installation of the existing urban planning facility, and no change in circumstances that may deem that the implementation plan lost public interest after the determination of the urban planning facility is found.

(3) Examining these circumstances in light of the legal principles as seen earlier, it cannot be deemed that the Defendant Mineyang Market’s disposition of authorization of the instant implementation plan did not properly measure the balancing of interests between the public and private interests, and thus did not deviate from and abused its discretion.

(4) In the same purport, the lower court determined that the instant implementation plan authorization disposition was lawful is based on the legal doctrine as seen earlier, and did not err by misapprehending the legal doctrine on deviation and abuse of discretion.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the portion arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Shin (Presiding Justice)