[2] The case holding that an "consultation with the Administrator of the Cultural Heritage Administration" under Article 74(2) of the Cultural Heritage Protection Act and Article 43-2(1) of the Enforcement Decree of the same Act refers to an "agreement with the Administrator of the Cultural Heritage Administration" under Article 74(1)

[3] The case holding that Article 74 (2) of the Cultural Heritage Protection Act and Article 43-2 (1) of the Enforcement Decree of the same Act are unlawful since the Ordinance, among State-designated cultural heritage, does not go through consultation with the Administrator of the Cultural Heritage Administration, which provides that construction works may be excluded from an area where the preservation of cultural heritage would affect the preservation of cultural heritage

[2] The case holding that in light of the legislative purpose of the Cultural Heritage Protection Act, and the basic principles of the protection of cultural properties, the preservation, management, and utilization of cultural properties, the "consultation with the Administrator of the Cultural Heritage Administration" under Article 74(2) of the Cultural Heritage Protection Act and Article 43-2(1) of the Enforcement Decree of the same Act refers to the "approval of the Administrator of the Cultural Heritage Administration" in relation

[3] The case holding that Article 74 (2) of the Cultural Heritage Protection Act and Article 43-2 (1) of the Enforcement Decree of the same Act are unlawful without consultation with the Administrator of the Cultural Heritage Administration since the Ordinance, which provides that construction works in cases of kings and ancient seedlings among State-designated cultural heritage, may be excluded from an area where the implementation of the construction works would affect the preservation of cultural heritage

In full view of the purport of the entire pleadings, the following facts can be acknowledged in the evidence Nos. 1 through 9, and No. 4.

A. On September 13, 2004, the Defendant passed a resolution on the amendment ordinance (hereinafter “the amendment ordinance bill of this case”) as stated in the order and transferred it to the Plaintiff. On September 23, 2004, the Plaintiff demanded reconsideration from the Defendant on the ground that the proviso of Article 14-2(1)1, which was newly enacted among the amendment ordinances of this case, did not undergo consultation with the Administrator of the Cultural Heritage Administration, violates Article 74(2) of the Cultural Heritage Protection Act and Article 43-2(1) of the Enforcement Decree thereof, but the Defendant, on October 19, 152 of the same year, re-resolutioned the amendment ordinance of this case as the original bill at the third plenary session of the 3rd extraordinary session of this year, was finalized, and promulgated on October 30 of the same year.

B. The proviso of Article 14-2(1) of the Amendment Bill of this case provides that "The scope of the area where an administrative agency should review whether the implementation of the construction work has an impact on the preservation of cultural properties pursuant to the provisions of Article 74(2) of the previous Ordinance shall be as follows: 1. State-designated cultural properties shall be within 100 meters from the protection zone boundary (where no protection zone is designated, referring to the outer boundary of the relevant cultural properties; hereinafter the same shall apply)." However, in the case of ancient and old tombs among State-designated cultural properties, the construction work may be excluded from the area where it is deemed that there is no obstacle to the protection of cultural properties by closely examining the characteristics, location conditions, etc. of the cultural properties."

C. On June 2 of the same year prior to the resolution as above, the Mayor of Seoul Special Metropolitan City sent a draft of the amended Ordinance to the Administrator of the Cultural Heritage Administration and requested the opinion on its validity and legal validity. However, on the 29th of the same month, the Administrator of the Cultural Heritage Administration sent a reply to the purport that it is reasonable to extend or maintain the current scope of impact review in order to preserve the original form and the surrounding environment, and that the said draft of the amended Ordinance is inconsistent with the purport of the Cultural Heritage Protection Act, and it is invalid.

2. Whether the amendment of this case violates any Act or subordinate statute;

A. The main sentence of Article 15 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances with respect to their affairs within the scope of statutes." Since "within the scope of statutes" refers to "within the scope of statutes", it shall be deemed that municipal ordinances enacted by local governments are invalid in cases where municipal ordinances enacted by local governments violate statutes.

B. Article 20 subparag. 4 of the Cultural Heritage Protection Act (amended by Act No. 6133, Jan. 12, 2000) and Article 18-2 subparag. 2(c) of the Enforcement Rule thereof (amended by Ordinance of the Ministry of Culture and Tourism No. 77, Jul. 14, 2003) and Article 74(2) and (3) of the Act and Article 43-2(1) of the Enforcement Decree thereof (amended by Presidential Decree No. 16902, Jul. 10, 200) fall under the ordinances.

However, Article 74(2) and (3) of the above Act, Article 43-2(1) of the above Enforcement Decree of the Building Act (amended by Act No. 5895, Feb. 8, 199); Article 8(3) of the former Building Act; Article 8(4)3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 16284, Apr. 30, 199); and Article 8(4) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 16284, Apr. 30, 199) provides that, with respect to buildings constructed in an area within 100 meters from the boundary of a protection zone of treasures designated by the Minister of Construction and Transportation (if no protection zone is designated, the outer boundary of cultural heritage) (including the amendment of Article 8(4) and Article 20(2) of the Enforcement Decree of the Building Act) shall be put to the so-called prior approval system to obtain approval from the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor.

Article 20 subparag. 4 of the above Act provides that "any person who intends to conduct an act falling under any of the following subparagraphs with respect to the right to permit the Administrator of the Cultural Heritage Administration shall obtain permission from the Administrator of the Cultural Heritage Administration, as prescribed by Presidential Decree. The same shall also apply to an alteration of permitted matters." subparagraph 4 provides that "an act prescribed by Ordinance of the Ministry of Culture and Tourism as one which may affect the preservation of State-designated cultural heritage (including the act of sampling and stuffing natural monuments) or which is likely to affect the preservation of State-designated cultural heritage (including the act of removing and stuffing natural monuments)" and Article 18-2(2)2 of the above Rule provides that "an act which may affect the preservation of State-designated cultural heritage (including its protective facilities and protection zone; hereafter the same shall apply in this paragraph) by consultation with the Administrator of the Cultural Heritage Administration in accordance with the provisions of Article 20 subparag. 4 of the Act, which is an act within 500 meters from the outer boundary of State-designated cultural heritage, which is ultimately designated cultural heritage, and is ultimately designated by Ordinance:

In addition, Article 14-2(1) of the amended Ordinance states that "the scope of the area where an administrative agency shall examine whether the implementation of the construction works has an impact on the protection of cultural properties pursuant to Article 74(2) of the Act shall be as follows." In the form of "the scope of the area where the implementation of the construction works has to be examined pursuant to Article 74(2) of the Act shall be as follows." However, the amended Ordinance seems to be separate from the right to permit under Article 20 subparag. 4 of the Act and Article 18-2(2)2(c) of the above Rule. However, as seen earlier, Article 20 subparag. 4 of the Act and Article 18-2(2)2(c) of the above Rules relating to the right to permit by the Administrator of Cultural Heritage Administration, and at the same time, Article 74(2) of the Act and Article 43-2(2) of the Enforcement Decree thereof shall be interpreted and operated equally, and the purport of granting the right to permit to the Administrator of Cultural Heritage Administration as above is to preserve national culture and to utilize it, thereby promoting Article 2(3).

If so, in this case where the Administrator of the Cultural Heritage Administration explicitly stated the dissenting opinion, the proviso of Article 14-2(1) of the Amendment Ordinance of this case, which stipulates that the construction works may be excluded from an area where the preservation of cultural heritage would affect the preservation of cultural heritage in the case of ancient and ancient seedlings among the State-designated cultural heritage, violates Article 74(2) of the Cultural Heritage Protection Act and Article 43-2(1) of the Enforcement Decree thereof without consultation with the Administrator of the Cultural Heritage Administration, and thus is unlawful.

C. Therefore, as long as part of the draft amendment of this case is illegal without examining the plaintiff's other arguments, the re-resolution of the draft amendment of this case shall be denied in its entirety. Therefore, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution is with merit.

3. Conclusion

Therefore, we decide to accept the Plaintiff’s claim of this case. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Kang-tae (Presiding Justice)