1. As to the Defendant’s ground of appeal

Even if an administrative disposition is in violation of the provisions of an administrative order, etc. which has no legal nature, the disposition is not unlawful solely on the ground that it conforms to the requirements prescribed in such administrative order, etc. It cannot be deemed lawful on the ground that the disposition is in violation of the said provisions. Whether the disposition is lawful ought to be determined not on the basis of whether it conforms to the requirements prescribed in such administrative order, etc., but on the basis of the provisions of the relevant Acts and subordinate statutes having legal nature, such as the laws binding on the general public, such as binding force against the general public (see, e.g., Supreme Court Decision 2011Du10584, Sept. 12, 2013). Therefore, whether the disposition in this case is lawful ought not to be determined based on

Article 2 Subparag. 7 of the former Cadastral Act (repealed by Article 2 of the Addenda to the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009; hereinafter the same) provides that “The category of land shall be classified into “the type of land according to the main purpose of the land and registered in the cadastral record” (Article 2 Subparag. 7). The former Enforcement Decree of the Cadastral Act (repealed by Article 2 of the Addenda to the Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records, Etc., Presidential Decree No. 21881, Dec. 14, 2009) provides that sports site among land categories shall be “the site for sports facilities, such as sports complex, indoor sports hall, camping ground, golf course, skiing ground, bicycle race track, etc., and the site for attached facilities connected thereto,” (Article 5 Subparag. 23), and Article 16(1)1 of the National Land Planning and Utilization Act as one of the grounds for land category change.

According to the contents, form, legislative purport, etc. of the former intellectual property law, “the site for the attached facilities connected to the land of a sports facility” shall not be limited to the site for the facilities that are directly used for the sports activities or the facilities that are directly used for the sports activities, and the site for the attached facilities that are closely related to the use and management of the sports facilities shall be deemed to include the site for the attached facilities that are closely connected with the use and management of the sports facilities. Whether the site falls under the attached facilities ought to be determined by comprehensively taking into account the purpose of developing the relevant facilities, including the

According to the reasoning of the judgment below and the evidence duly admitted by the court below, each land listed in the separate sheet No. 1 of the judgment of the court of first instance (hereinafter “the land No. 1 of this case”) includes approximately 1.7 km in length, approximately 50 km in number, approximately 1.2 km in width, and approximately 30 m/ 240 m in width, and approximately 30 m/ 240 m in number or pond in size. They are adjacent to each golf course of this case in each golf course in this case, and they are adjacent to each golf course in this case, and if a golf course has fallen into this area, they are dealt with “in the Area”. The land No. 1 of this case was created for the purpose of the original drainage due to the unique nature of the site of the golf course of this case using the existing salt farm, and there was an embankment, door A, etc. to prevent the flow of water and seawater.

Examining these circumstances in light of the legal principles as seen earlier, it is difficult to promptly regard the land as the land for sports facilities solely on the ground that the land is used as the “water base area” in light of the size and shape of the land No. 1. However, in view of the fact that the land No. 1 was prepared for the function of draining and sloping, which is essential for the creation and maintenance of the instant golf course at the place where it was used as a salt farm, and that it was used as the site for the installation of the irrigation and drainage channel, it is reasonable to view it as the “land for the attached facilities connected to the land for sports facilities” as the “land for the attached facilities.

However, while recognizing that the land of this case mainly functions as a drainage function for the removal of salt of golf course land, the court below held that the disposition of this case which rejected an application for land category change as a ditch by deeming it as falling under an independent ditch rather than an attached facility connected to the land of a sports facility was unlawful. In this regard, the court below erred by misapprehending the legal principles as to the determination of land category as a sports site under the former intellectual law.

2. Plaintiff’s ground of appeal

According to the reasoning of the judgment below, the court below determined that the part concerning the land of this case No. 2 in the disposition of this case is lawful, on the ground that the land listed in the separate list No. 2 of the judgment of the court of first instance (hereinafter “the land No. 2”) is not forest land stipulated in Article 5 subparag. 5 of the former Enforcement Decree of the Cadastral Act, but the “site for attached facilities connected to the land of sports facilities” and falls under the sports site stipulated in Article 5 subparag. 23 of the former Enforcement Decree of the Cadastral Act, and since the use and current status of the land No. 2 in this case differs from that of forest located within the so-called forest development golf course, since it cannot be deemed that the land category of the land of this case No.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed and remanded to the court below. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)