[행정처분(세목공고처분)취소][판례집불게재]
Kim Jong-jin (Attorney Kim Yong-hwan, Counsel for the defendant-appellant)
Busan City Mayor (Attorney Han-soo et al., Counsel for the plaintiff-appellant)
December 16, 1970
The public notice of the tax items issued by the defendant on July 5, 1969 by Busan City public notice No. 413 on the land and goods listed in the attached list shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
In accordance with Article 12 of the Urban Planning Act, there is no dispute between the parties that the defendant publicly announced the items of taxation such as the entry of the land and the items in the separate sheet as to the land and the items in the separate sheet which are owned by the plaintiff under the provision of Article 12 of the Urban Planning Act, so the defendant is not an independent administrative act, and thus, it cannot be subject to administrative litigation. In this regard, the first point is to examine the issue of this issue, the public notice of the items under Article 12 of the Urban Planning Act is an administrative disposition specifying the land and the items to be expropriated in accordance with the implementation plan of the urban planning project authorized and publicly announced under Article 6, Article 7 of the same Act and the Land Expropriation Act, and it cannot be the basis for the process of accepting the land and the items to be expropriated in accordance with the implementation plan of the urban planning project publicly announced under Article 7 of the
In light of the following points, in order to sell the site of the previous Busan City public market, which was owned by the defendant in Busan City, to the Busan City public market, which is an incorporated association, to build the public city in Busan City as an urban planning project on the land and its neighboring land, the defendant had obtained an approval of the urban planning project from the Minister of Construction and Transportation on April 24, 1969 and approved on April 24, 1969 that the above Busan Busan City public city shall execute the urban planning project. However, upon the application of the Dong Young-gu Association, there is no dispute between the parties as to the application of the detailed notice of the
(1) The plaintiff asserts that the public notice disposition of this item violates Article 3 of the Land Expropriation Act because it is intended for a private person to expropriate the land of the people for the purpose of market building for the management of the private person, and it is not an expropriation of property rights due to public necessity, because it is in violation of Article 20 of the Constitution and the above market is not established by the state or public organization, but it is not established by the state or public organization. However, since the above market is implemented as an urban planning project of the defendant city, such a market is not established and operated by the private person, as long as it is a market prescribed by Article 2 subparagraph 1 of the Urban Planning Act, it is possible to accept the property right necessary for the execution of the project
In addition, when the original defendant City originally authorized the project execution to the above prosperity conference, the plaintiff asserts that the project executor will purchase the unregistered land in consultation with the land owner, does not permit compulsory expropriation in accordance with the land expropriation procedure, and that the present market is currently changing the original design on the land except the land owned by the plaintiff and completed the market building with the alteration of the original design on the land, so the need to expropriate the land becomes extinct;
According to the evidence Nos. 3-1 and 7-2 of the same 3-1 and 7-2, the above argument is without merit, since the fact that the defendant's market authorized the project executor's purchase of the unregistered land through consultation with the owner when the project executor grants the project execution to the above prosperity conference, although it is recognized that there is a father's management, it cannot be interpreted that the approval of the expropriation procedure under the Urban Planning Act and the Land Expropriation Act applied mutatis mutandis under the same Act is excluded. However, in light of the result of the party members' on-site verification, the witness's seals, and the testimony of the Kim Young-young, the above prosperity conference started the business after changing the original design and completed the business of the third floor be assigned to the store on the land except the land owned by the plaintiff, and even on the spot, it can be recognized that the land owned by the plaintiff is not necessary for the construction of the above market, and the testimony part of the witness's static number, Cho Young-young cannot be trusted, and since there is no counter-proof, it is a need for the above market building.
Therefore, the plaintiff's claim of the principal lawsuit is accepted and the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition.
December 30, 1970
Judges Lee Jae-ho (Presiding Judge)
[Attachment Omission]