Seoul Dong 50 - 2

Representative Director;

2. ○○ Incorporated Company

Seoul Dong 1009 - 5

Representative Director;

3. 00

Seoul 726 - 167

[Defendant-Appellant]

The Mayor of Incheon Metropolitan City

Litigation Performers;

Government Legal Service Corporation (Law Firm LLC)

Attorney Lee In-bok

2. The costs of lawsuit are assessed against the defendant.

A. On October 5, 2009, the Defendant rendered a decision on urban management planning (urban planning facilities: sports facilities) and a notification of topographic drawings (No. 2009- 312 of Incheon Metropolitan City’s notification) to establish a public golf course as to a public golf course (hereinafter “project site in this case”) with respect to the Incheon Gyeyang-dong, Incheon Metropolitan City, 65 - 14 daily 717,000 square meters (hereinafter “instant project site”).

B. Plaintiff 3 owns the project site of this case, 612, 836m of 48m, 26m of 24m, 81, 125m of 125m of 24m, 3m of 14,039m of 18m of 18m of State-owned and public land, and 14 of 26m of 26m of 14m of 26m of △△△△, etc., which are planned by the Plaintiffs (hereinafter “the project of this case”).

C. On May 31, 201, the Plaintiffs submitted to the Defendant an application for designation of the instant project implementer and an application for authorization of the implementation plan with the content that “the designation of the Defendant as the joint project implementer of the instant project.” However, on June 8, 2011, the Defendant rejected the said application on the grounds that the Plaintiff did not own land equivalent to at least 2/3 of the area of the land (excluding State and public land) subject to the project pursuant to Article 86 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 2011; hereinafter “former National Land Planning Act”) and Article 96(3)1 of the Enforcement Decree of the same Act, and thus, did not own land equivalent to at least 2/3 of the area of the land (excluding State and public land) subject to the project.

D. On June 16, 201, the Plaintiffs submitted to the Defendant an application for designation of the instant project implementer and an application for authorization of implementation plan to the effect that the Plaintiffs, a joint proprietor of the tea business, own the land corresponding to 2/3 or more of the size of the land subject to the project, and meet the requirements under the relevant Acts and subordinate statutes. However, on June 20, 201, the Defendant returned the application to the Plaintiffs for the same reason as the foregoing Da. (hereinafter referred to as “each of the instant dispositions” in this case, referring to the return of each of the above Da and D).

[Ground of recognition] Unsatisfy, Gap 2, 6, and 7 evidence, Eul 2 evidence, the whole pleadings, and the purport of the whole pleadings

With respect to the plaintiffs' seeking revocation of each of the dispositions of this case against the defendant, the defendant cannot designate the plaintiffs as the project implementer of this case even if each of the dispositions of this case is revoked due to the repeal of the urban management plan concerning the business of this case after each of the dispositions of this case. Thus, the lawsuit of this case is unlawful as it has no interest in lawsuit,

According to the overall purport of statement and pleading evidence Nos. 1 and 1, the defendant, on April 30, 2012, issued a decision to abolish the urban management plan and a topographical map (Notice No. 2012-101 of Incheon Metropolitan City, Incheon Metropolitan City) with respect to the business of this case, and the plaintiffs filed an application with the Central Administrative Appeals Commission on June 18, 2012 to seek the revocation of the above closure decision and continued an administrative appeal. In light of this, as long as the above closure decision is revoked, the plaintiffs may be designated as the project implementer of this case, and even if the possibility of revocation of the above closure decision is unlikely, the lawsuit of this case seeking the revocation of each of the dispositions of this case is deemed to have a benefit of lawsuit. Thus, the defendant's defense of safety is without merit.

3. Judgment on the merits

A. The parties’ assertion

1) The plaintiff's assertion

A) Plaintiff 3, one of the plaintiffs who applied for a joint project operator, owns approximately 87% of the project site of this case, and the plaintiffs obtained consent from at least 1/2 of the landowners in the project site of this case, and the plaintiffs meet the requirements of Article 86 of the former National Land Planning Act and Article 96(2) of the Enforcement Decree of the same Act. Nevertheless, each of the dispositions of this case made by the defendant on the premise that the non-owner of the project site of this case cannot be designated as a joint project operator of an urban planning facility project jointly with the landowner is unlawful.

B) The Defendant’s assertion 2) is an addition of the grounds for disposition, and the identity of each of the instant dispositions and basic facts is not recognized, and thus, it cannot be permitted.

2) Defendant’s assertion

A) Article 86(7) of the former National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree of the same Act are not intended for a joint project operator under the National Land Planning and Utilization Act, and neither Plaintiff 1 nor Plaintiff 2 cannot be designated as a joint project operator, who did not own all the land in the instant project site.

B) The designation of the project implementer of this case under the National Land Planning Act is a discretionary act and has broad discretionary power to the Defendant. The enactment of the Gyeyangsan mountain Ordinance and the systematic management of Gyeyangsan to protect the natural resources and the ecosystem of Gyeyangsan mountain, and taking into account the fact that the Gyeyang mountain was provided to the citizens as a resting space more important than to promote the convenience of the golf course users, the Defendant became entitled to each of the dispositions of this case as an exercise of discretionary power. The issue of whether each of the dispositions of this case is discretionary act is an act of discretion is objectively determined in light of the language and content of the pertinent statute, the purpose of legislation, and the nature related to public interest, etc. Therefore, the Defendant’s assertion on the premise that it is discretionary act does not constitute an addition of the grounds for disposition.

(b) Related statutes;

As shown in the attached Form.

C. Determination

1) As to the assertion regarding whether the requirements under relevant laws and regulations are met

In light of the following circumstances, it is reasonable to view that Plaintiff 1 and Plaintiff 2, who did not own the land in the instant project site at all, may also be designated as a co-project implementer of the instant project, together with Plaintiff 3 (including Plaintiff 87% ownership in the instant project site, 27 landowners’ consent) who met the requirements under Article 86 of the former National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree of the same Act.

(1) There is no provision prohibiting a joint project implementation with a person who does not own land subject to a project under the National Land Planning Act and a landowner. The designation of a project implementer is a discretionary act under the interpretation of the above Act and subordinate statutes, and is likely to hinder the project due to conflict of opinions between the joint project implementer, etc., the Defendant may exercise discretion to return the application for designation of a project implementer by specifying the reasons for such disposition. Thus, the designation of a joint project implementer is not permissible.

② The main purpose of Article 86(7) of the former National Land Planning and Utilization Act and Article 96(2) through (3) of the Enforcement Decree of the same Act requires the consent of at least 1/2 of the total number of landowners, is to restrict the infringement of other landowners’ property rights by unilaterally taking the procedure of expropriation against the intent of other landowners, and to ensure the continuous and stable implementation of the urban planning facility project by securing a considerable area of land in the project site prior to the commencement of the project. It does not appear to be a provision for preventing the joint project implementation with a person who does not have a land at all, and a landowner who does not have a land at all, in accordance with the said Act and subordinate statutes.

③ According to Article 86(1) through (3) of the former National Land Planning and Utilization Act, an urban planning facility project shall, in principle, be implemented by the head of a local government. In the event that an urban planning facility project is implemented throughout the jurisdiction of a local government, the head of a local government shall determine an implementer through consultation. In the event that an agreement is not reached, the Do Governor or the Minister of Land, Transport and Maritime Affairs shall designate an implementer. However, such provision shall not be construed to prevent the implementation of the project jointly with the parties in conflict with interest.

④ Although the National Land Planning Act does not explicitly stipulate the provisions on the implementation of the joint project, such as Article 11(3) of the Urban Development Act and Article 8 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, such circumstance alone cannot be interpreted as not allowing the joint project. Rather, the Ministry of Land, Transport and Maritime Affairs also does not limit the number of persons of the project implementer under the National Land Planning Act, and thus, the project implementer may become a joint project implementer. In such cases, the joint project implementer shall own at least 2/3 of the face value of the entire land, including the ownership of shares, and obtain the consent of at least 1/2 of the total number of landowners (referring to reference materials 1.; 2.: one * on July 4, 2011).

2) As to the assertion that it is a disposition upon the exercise of discretionary power

First of all, as to whether it constitutes an addition of the grounds for disposition, the Defendant was merely the ground for disposition that the Plaintiffs did not own the land equivalent to at least 2/3 of the area of the land subject to the project, and did not state at all the fact that the Defendant exercised discretion in accordance with the comparison of the private and public interests, and thus, it constitutes an addition of the grounds for disposition.

Next, with respect to whether the above disposition is permitted or not, in an appeal litigation seeking the cancellation of an administrative disposition, the disposition agency may add or alter other grounds only to the extent that the original disposition is deemed identical to the original disposition, to the extent that the basic factual relations exist. Here, the existence of the identity of basic factual relations is determined based on whether the basic social facts are identical to the basic facts before legal deliberation on the grounds for disposition. The reason for interpreting that it is not allowed to claim as a ground for disposition on the grounds that it is separate facts that are not identical to the basic facts is not recognized. The purport of ensuring the other party’s right to defense of the administrative disposition, thereby realizing the substantial rule of law and protecting the trust of the other party of the administrative disposition. Since the additional or modified ground for disposition was not stated in the original disposition, it cannot be said that the original disposition is identical to the grounds for disposition by the defendant, which was already in existence at the time of disposition and did not have knowledge of such facts (see, e.g., Supreme Court Decision 2003Du827, Dec. 18, 2003).

3) Sub-decisions

Therefore, each of the dispositions of the instant case rendered by the Defendant on different premise is unlawful.

4. Conclusion

Then, the plaintiff's claim is justified and all of them are accepted, and it is so decided as per Disposition.

Judges Nos. 300

Judge Lee Jae-chul

former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 2011)

Article 86 (Implementers of Urban Planning Facility Projects)

(1) Except as otherwise expressly provided for in this Act or other Acts, the Special Metropolitan City Mayor, a Metropolitan City Mayor, or the head of a Si/Gun shall implement an urban planning facility project under his/her jurisdiction.

(2) Where an urban planning facility project is implemented across the jurisdictions of two or more Special Metropolitan Cities, Metropolitan Cities, Sis, or Guns, the Special Metropolitan City Mayor, Metropolitan City Mayors, Sis, or heads of Guns shall determine an executor through consultation with each other.

(3) Where an agreement under paragraph (2) is not reached, if a zone in which an urban planning facility project is to be implemented falls under the jurisdiction of the same Do, the competent Do Governor shall designate an implementer and if such zone extends over the jurisdiction of at least two Sis/Dos, the Minister of Land, Transport

(4) Notwithstanding paragraphs (1) through (3), the Minister of Land, Transport and Maritime Affairs may directly implement an urban planning facility project among the opinions of the relevant Special Metropolitan City Mayor, Metropolitan City Mayors, or heads of Sis/Guns, when related to a State plan or when deemed especially necessary to do so, and the Do Governor may directly implement an urban planning facility project after hearing the opinions of the head of the relevant Si/Gun, when related to

(5) A person, other than those eligible to become an implementer pursuant to paragraphs (1) through (4), may implement an urban mooring facility project after being designated by the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, or the head of a Si/Gun as an implementer, as prescribed by Presidential Decree.

(6) Where the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, or the head of a Si/Gun designates an implementer of a snow project in the urban planning pursuant to paragraph (2), (3) or (5), he/she shall publicly announce the details of such designation, as prescribed by Ordinance of the Ministry

(7) Where a person who does not fall under any of the following subparagraphs intends to be designated as an implementer of an urban planning facility project under paragraph (5), he/she shall meet the requirements prescribed by Presidential Decree concerning the area of land (excluding State and public land) owned and the ratio of consent of landowners:

1. The State or local governments;

2. Public institutions prescribed by Presidential Decree;

3. Other persons prescribed by Presidential Decree.

- Enforcement Decree of the National Land Planning and Utilization Act

Article 96 (Designation of Implementers)

(2) "Requirements prescribed by Presidential Decree" in the part other than the subparagraphs of Article 86 (7) of the Act means holding land equivalent to at least 2/3 of the area of land subject to an urban planning facility project (excluding State and public land; hereafter the same shall apply in this paragraph) and obtaining consent from at least 1/2 of the total number of landowners.