[도시계획시설변경입안의제안거부처분취소][집52(1)특,371;공2004.6.1.(203),913]
[1] Whether a land owner's refusal to formulate an urban planning plan on an application for drafting an urban planning plan within an urban planning zone constitutes an administrative disposition subject to appeal litigation (affirmative)
[2] The case holding that the decision of urban planning facilities to establish an automobile and a mid-term driving school within a general residential area is lawful under the relevant laws and regulations
[1] The purpose of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002) is to guarantee public safety and order, enhance public welfare, and improve the quality of life of residents by prescribing matters necessary for the establishment and implementation of urban planning, and at the same time to reduce restrictions on the exercise of property rights by the determination of urban planning facilities, the provisions on the right to request purchase of site for urban planning facilities, the invalidation of the determination of urban planning facilities, and the obligation of the Special Metropolitan City Mayor, Metropolitan City Mayor, the Metropolitan City Mayor, or the head of Si/Gun, who is the authority to formulate urban planning, to comprehensively review and improve the feasibility of urban planning within the urban planning district under his/her jurisdiction every five years, and in relation to the proposal for the formulation of urban planning, 1. Matters concerning the installation, improvement or improvement of urban planning facilities; 2. Matters concerning the designation and alteration of urban planning facilities and the formulation and alteration of the district unit planning plan; the authority to formulate such proposal shall be notified to the proposer.
[2] The case holding that the decision of urban planning facilities to establish an automobile and a mid-term driving school within a general residential area is lawful under the relevant laws and regulations
[1] Articles 20(1) and (2), 28, 40, and 41 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002), Article 2 of the Administrative Litigation Act, and Article 23 of the Constitution / [2] Article 76(1) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 16874 of Jun. 27, 2000), Article 2(1)1(b) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), Article 2 subparag. 10 of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891 of Jul. 1, 200), Article 304 of the former Enforcement Rule of the Building Act (amended by Presidential Decree No. 16893 of Jan. 18, 19996)
Small Village Development Co., Ltd. (Attorney Na-won, Counsel for defendant-appellee)
The head of Gwangju Metropolitan City North Korea;
Gwangju High Court Decision 2002Nu1945 delivered on January 23, 2003
The judgment below is reversed, and the case is remanded to the Gwangju High Court.
1. Summary of the judgment below
According to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance as cited by the court below, the court below determined that the defendant's amendment of the former Building Act (amended by Act No. 4381, May 31, 1991; Act No. 6247, Jan. 28, 2000; Presidential Decree No. 13655, May 30, 1992; Presidential Decree No. 16874, Jun. 27, 2000; Presidential Decree No. 16874, Jun. 27, 200; Presidential Decree No. 19975, Feb. 197; Presidential Decree No. 19799, Jun. 1, 1993; Presidential Decree No. 20099, Jun. 27, 200; Presidential Decree No. 20100, Jun. 9, 197) was unlawful since it did not formulate an urban planning facility plan.
2. Judgment of the Supreme Court
A. As to the first ground for appeal
The former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200 and repealed by Act No. 6655 of Feb. 4, 2002, Article 2 of the Addenda to the National Land Planning and Utilization Act of Feb. 4, 2002) aims at guaranteeing public safety and order, promoting public welfare, improving the quality of life of residents by prescribing necessary matters concerning the establishment and implementation of urban planning, and at reducing restrictions on the exercise of property rights of individuals due to the determination of urban planning facilities, in addition to the provisions on the right to purchase the site of urban planning facilities (Article 40), invalidation of the determination of urban planning facilities (Article 41), and the provisions on the right to request the Special Metropolitan City Mayor, Metropolitan City Mayor, or head of Si/Gun (hereinafter referred to as the "Drafting authority"), who is the authority to formulate urban planning zones, shall comprehensively review the feasibility of urban planning within the urban planning zones under his/her jurisdiction and shall not be related to the drafting authority to formulate and improve the urban planning plan (Article 28).
The judgment of the court below is just on the premise that the defendant's rejection of the plaintiff's application constitutes an administrative disposition subject to appeal litigation, and there is no error of law by misunderstanding the legal principles as to the right to apply for modification of urban planning facilities.
B. As to the grounds of appeal Nos. 2 and 3
However, under Article 76 (1) of the former Enforcement Decree of the Building Act, the provisions on prohibition and restriction of construction of buildings in areas and districts under Article 45 of the former Building Act are not applicable, that is, Article 2 (1) 1 (b) of the former Urban Planning Act (amended by Act No. 4541 of Mar. 6, 1993) and Article 2 (1) 1 (b) of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891 of Jul. 1, 200) and Article 2 subparagraph 10 of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891 of Jul. 1, 200), and it constitutes a facility necessary for public welfare among urban planning facilities under Article 2 subparagraph 10 of the former Enforcement Decree of the Building Act (amended by Act No. 5222 of Dec. 16, 192) and a general urban planning facility is lawful within the scope of Article 436 and Article 43 of the former Urban Planning Rules.
On the contrary, the court below erred in the misapprehension of legal principles as to deviation from and abuse of discretion in the determination of urban planning facilities of this case on the premise that the decision of urban planning facilities of this case was unlawful on the premise that the decision of urban planning facilities of this case was unlawful. Thus, the ground of appeal pointing this out is with merit (However, even if the record states that the decision of urban planning facilities of this case was legitimate based on the record, the remaining circumstances recognized by the court below and 12,005.9 square meters out of the 13,619.5 square meters out of the facility site of this case were neglected, and the remaining 1,613.6 square meters out of the facility site of this case were neglected. In light of the above facts, there is room to view that the disposition of this case of this case was an abuse of discretion due to lack of legitimacy and objectivity in the assessment of profits. Accordingly, the court below after remand the first decision of urban planning facilities after excluding part of the facility site after the decision of urban planning facilities of this case, and whether urban planning facilities were installed from the original part of land awarded to the land use of this case.
3. Conclusion
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Hyun-chul (Presiding Justice)