[2] In a case where a landowner, etc. under Article 130(3) of the National Land Planning and Utilization Act refuses to give consent to temporary use of land by a project implementer without any justifiable reason, whether a project implementer may file a lawsuit seeking consent against the landowner, etc. (affirmative) / Whether a lawsuit seeking consent to temporary use of land constitutes a party suit under the Administrative Litigation Act (affirmative) and whether a lawsuit seeking consent is permissible under the Administrative Litigation Act (affirmative); and where necessary to avoid significant damage, whether a project implementer may file an application for “provisional disposition to determine temporary status” under Article 8(2) of the Administrative Litigation Act and Article 300(2) of the Civil Execution Act (affirmative)

In full view of the structure and contents of Article 130 of the National Land Planning and Utilization Act, and the nature of public works together with the legislative purpose, where a project implementer of an urban or Gun planning facility project needs to temporarily use a specific land adjacent to the project area for storage of materials or for a temporary passage, the project implementer shall obtain consent from the relevant landowners, etc. pursuant to the aforementioned provisions, and the landowner, etc. is obligated to accept and consent to “temporary use” of the project implementer unless there is any justifiable reason to refuse such use. Meanwhile, unlike the case of expropriation and use to which Article 62 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor applies mutatis mutandis pursuant to Article 96 of the National Land Planning and Utilization Act, the prior compensation principle shall not apply in cases of temporary use pursuant to Article 130 of the National Land Planning and Utilization Act, so the circumstance that

[2] In a case where an owner, occupant, or manager of land under Article 130(3) of the National Land Planning and Utilization Act (hereinafter “owner, etc.”) refuses to give consent to the temporary use of the land without justifiable grounds, a project implementer may file a lawsuit against the owner, etc. of the relevant land to seek consent. Since the obligation to express his/her consent to the temporary use of the land is an obligation under the public law that is specifically recognized in the “National Land Planning and Utilization Act”, a lawsuit disputing the existence of such obligation is deemed to be a lawsuit involving legal relations under the public law, namely, a party’s lawsuit seeking consent, namely, a lawsuit involving the existence of such obligation.

Article 39 of the Administrative Litigation Act provides, “The party litigation shall be the defendant with the State, public organizations, and other subjects of rights.” This only provides, unlike the appeal litigation, that “the subject of rights,” not “administrative agencies,” but “the subject of rights,” and is not limited to the subject of rights, the eligibility for the defendant is recognized, and thus, it does not necessarily mean that a party litigation against a private person cannot be instituted on the basis of this provision.

In addition, Article 8(2) of the Administrative Litigation Act applies mutatis mutandis to a party suit, so if necessary to avoid significant damage pursuant to Article 300(2) of the Civil Execution Act, a project operator may carry out the public works promptly and smoothly through the "provisional disposition to determine temporary status".

1. Article 130(1) and (3) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that an implementer of an urban or Gun planning facility project may temporarily use another person’s land as a material storage yard or a temporary passage, and accordingly, a person who intends to temporarily use another person’s land shall obtain consent from the owner, occupant, or manager of the land (hereinafter “owner, etc.”) if necessary to conduct a basic investigation on urban or Gun planning, etc., and to conduct an investigation, survey, or implementation of an urban or Gun planning facility project.

In full view of the structure and contents of Article 130 of the National Land Planning and Utilization Act, and the nature of public works together with the legislative purpose, where a project implementer of an urban/Gun planning facility project needs to temporarily use a specific land adjacent to the project area for storage of materials or for a temporary passage, the project implementer shall obtain consent from the relevant landowner, etc. pursuant to the aforementioned provisions, and the landowner, etc. is obligated to accept and consent to “temporary use” of the project implementer unless there is any justifiable reason to refuse such use. Meanwhile, unlike the case of expropriation and use to which Article 62 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor applies mutatis mutandis pursuant to Article 96 of the National Land Planning and Utilization Act, the principle of prior compensation is not applicable in cases of temporary use pursuant to Article 130 of the National Land Planning and Utilization Act, so the circumstance that there is dispute over

2. In a case where a landowner, etc. refuses to give consent to the temporary use of a project implementer without justifiable grounds, a project implementer may file a lawsuit seeking consent against the landowner, etc. of the relevant land. The obligation to express his/her consent to the temporary use of such land is a public law obligation specifically recognized under the National Land Planning Act. As such, a lawsuit disputing the existence of such obligation is a lawsuit concerning a legal relationship under public law, namely, a party’s lawsuit seeking the said legal relationship as a defendant.

Article 39 of the Administrative Litigation Act provides, “The party litigation shall be the defendant with the State, a public organization, and the subject of other rights.” This only provides, unlike an appeal litigation, that “the subject of rights,” rather than an administrative agency, has standing to be the defendant, and is not limited to the subject of rights recognized as standing to be the defendant, and thus, it does not constitute a party litigation against a private person as the defendant on the ground of this provision (see, e.g., Supreme Court Decisions 2011Da2951, Jun. 9, 2011; 2013Da1211, Apr. 28, 2017).

In addition, Article 8(2) of the Administrative Litigation Act applies mutatis mutandis to a party suit, since the provisions on provisional disposition under the Civil Execution Act shall apply mutatis mutandis (see Supreme Court Order 2015No26, Aug. 21, 2015). It is clearly stated that a project operator may carry out a public project promptly and smoothly through a "provisional disposition to determine temporary status" if necessary to avoid significant damage pursuant to Article 300(2) of the Civil Execution Act.

3. On the grounds indicated in its reasoning, the lower court: (a) deemed that the instant lawsuit seeking consent to temporarily use the land owned by the Defendants as a temporary passage and storage for materials against the Defendants constituted a party litigation under the Administrative Litigation Act; and (b) determined that the first instance judgment violated the exclusive jurisdiction of the first instance court; and (c) revoked the first instance judgment and transferred the instant case to the competent court for administrative litigation.

In light of the above legal principles, the judgment below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on party litigation.

4. Therefore, all appeals are 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 on the bench.

Justices Kim Jong-hee (Presiding Justice)