[재개발구역분할및사업계획변경신청반려처분취소][공1999.10.1.(91),1969]
[1] Whether a non-permission notice on the owner's application for change of redevelopment project plan within the redevelopment project district constitutes an administrative disposition subject to appeal litigation (negative)
[2] Whether a substantive right to file a civil petition with a civil petitioner is recognized pursuant to Article 2 subparagraph 3 and Article 9 (3) of the former Administrative Regulation and Civil Petition Act, and Article 2 subparagraph 3 (f) of the Enforcement Decree of the same Act (negative)
[1] In a case where an administrative agency's rejection of a citizen's application, the right to request a change of the housing improvement redevelopment project plan should be acknowledged first to the citizens in order to be an administrative disposition. With respect to the change of the housing improvement redevelopment project plan, even if the land owner in the project district is the owner of the land in the project district, there are no statutory grounds for applying for the change, and in light of the nature of the redevelopment project, the right to request a change of the plan cannot be acknowledged. Thus, the notification of rejection of a request for change of the redevelopment project plan to the
[2] Article 2 subparag. 3 and Article 9(3) of the former Administrative Regulation and Civil Petition Act and Article 2 subparag. 3(f) of the Enforcement Decree of the same Act provide that an act requiring an administrative agency to perform a specific act as one of the civil petitions shall not be withheld or rejected, or shall not be unfairly returned to the received documents if the application is made. However, in light of the fact that the above Act provides for the basic matters concerning the treatment of civil petitions as its legislative purpose and mainly procedural matters, it shall not be deemed that, even if the above provisions stipulate the procedural receipt obligation of the administrative agency for the filing of civil petitions, it shall not be deemed that the civil petitioner is granted the substantive right to request the administrative agency as required by the civil petition.
[1] Articles 5 (see current Article 3), 6-2 (see current Article 5), 1 (general administrative disposition), 2, and 4 of the Administrative Litigation Act / [2] Articles 5 (see current Article 3), 6-2 (see current Article 5), 6-3 (2) of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995), 2 subparagraph 3 (see current Article 2 subparagraph 2 of the Civil Petitions Treatment Act), 9 (3) of the former Framework Act on Administrative Regulation and Civil Affairs (see current Article 4 (2) of the Civil Petitions Treatment Act), Article 2 subparagraph 3 (f) of the former Enforcement Decree of the Civil Petitions Treatment Act (see current Article 2 subparagraph 2 (2) of the Civil Petitions Treatment Act), Article 2 subparagraph 3 (f) of the former Framework Act on Administrative Regulation and Civil Affairs / [2] Article 5 (3) of the former Urban Redevelopment Act (see current Article 5 (2) of the Civil Petitions Treatment Act), Article 4 of the Civil Procedure Act
[1] Supreme Court Decision 84Nu227 delivered on October 23, 1984 (Gong1984, 1858), Supreme Court Decision 89Nu5348 delivered on December 12, 1989 (Gong1990, 291) Supreme Court Decision 95Nu13081 delivered on May 14, 1996 (Gong196Ha, 1866), Supreme Court Decision 96Nu5612 delivered on February 24, 1998 (Gong198Sang, 914), Supreme Court Decision 96Nu14036 delivered on July 10, 198 (Gong198Ha, 2125)
Plaintiff 1 and one other (Seo Law Firm, Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)
Nowon-gu in Seoul Special Metropolitan City
Hadern Housing Improvement Development Cooperatives (Law Firm Dong, Attorneys Seo Young-ro et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 95Gu36710 delivered on April 2, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiffs.
1. On October 25, 1989, the court below acknowledged that the Minister of Construction and Transportation designated a redevelopment area as of October 25, 1989, and that as of September 6, 1991, the housing improvement development project in Zone 1 in Nowon-gu in Seoul Special Metropolitan City ( Address omitted) which was decided by the Mayor of Seoul Special Metropolitan City on September 6, 1991 for the housing redevelopment project (hereinafter referred to as the "redevelopment project in this case") was submitted to the defendant on May 20, 195 when the plaintiffs, who were the owners of land in the project district, want to seek a partial implementation of the redevelopment project, but the court below rejected the application for the alteration of the redevelopment area and the alteration of the project plan. However, on June 17, 1995, the court below did not err in the misapprehension of legal principles as to the alteration of the housing redevelopment project plan and did not have the right to request the alteration of the project plan in this case. Accordingly, the court below's rejection of the application.
2. Articles 2 subparag. 3 and 9(3) of the former Administrative Regulation and Civil Petitions Treatment Act (amended by Act No. 5369, Aug. 22, 1997; hereinafter referred to as the "Civil Petitions Treatment Act") and Article 2 subparag. 3(f) of the former Enforcement Decree of the Civil Petitions Treatment Act (amended by Presidential Decree No. 15597, Dec. 31, 1997; hereinafter referred to as the "Civil Petitions Treatment Act"), and Article 2 subparag. 3(f) of the former Enforcement Decree of the Civil Petitions Treatment Act (amended by Presidential Decree No. 15597, Jan. 1, 1998; hereinafter referred to as the "Civil Petitions Treatment Act") provide that the request for a specific act against an administrative agency shall be one of the civil petitions, and the administrative agency shall not withhold or refuse the receipt, or shall not unfairly return the received documents. However, in light of the legislative purpose of the Civil Petitions Treatment Act, it shall not be deemed that the administrative agency's right to receive the civil petition.
Therefore, in this case, the plaintiffs' submission to the defendant of "application for division of redevelopment zone and modification of project plan" constitutes a civil petition demanding an administrative agency to perform a specific act, and even if there is a duty to receive it to the defendant under the above provisions of the Civil Procedure Act, it is not recognized as a substantive right to apply for modification of redevelopment project plan. Thus, even if the defendant notified the plaintiffs of the purport that modification of redevelopment project plan requested by the plaintiffs is not allowed, it does not constitute a rejection disposition subject to
The reasoning of the court below is somewhat different, but it is just in the conclusion that the lawsuit of this case seeking its revocation is unlawful since the plaintiffs' non-permission notice on the application for change of redevelopment project plan is not subject to appeal litigation, and there is no error in the misapprehension of legal principles as to Article 9 of the Civil Procedure Act or the contradiction in the reasoning. The grounds of appeal as to this are not accepted.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Shin Sung-sung (Presiding Justice)