Cancellation of Share of Expenses

Representative Director E

Law Firm Governing Do, Counsel for defendant-appellant

Attorney Park Jae-sik, Lee Dong-sik, Counsel for plaintiff-appellant

Litigation Performers Choi D

Law Firm Loba

Attorney Kang Chang-ok

2. The costs of the lawsuit are assessed against the defendant.

가. 원고는 1999년 12월경 소외 주식회사 ◆과 함께 부산 중구 중앙동 7가 ○ 필지 지상에 '□'(이하 '■'라 한다)를 신축하기 위하여 부산광역시장에게 건축허가신청을 하였고, 부산광역시장은 2000. 11. 11. 부산광역시 교통영향심의위원회의 교통영향평가 심의의결에 따라 기존 왕복 4차로인 영도대교를 왕복 6차로로 확장하는 공사를 시행하는 조건으로 건축허가를 하였다.

B. However, in the precise safety diagnosis of the Young Do curriculum conducted in February 2003, the safety grade D was determined on the ground that the overall lecture corrosion and second absence damage in the Young Do curriculum were serious, and Trus and mechanical room sections were difficult to expect the promotion of durability even if repair and reinforcement were performed. On March 25, 2003, as the Young Do school was designated as a disaster risk facility under the Disaster Management Act, the problems of the removal of the Young Do curriculum raised since 1997 were refilled, and there was controversy between the repair and reinforcement of the existing Young Do curriculum and the removal of it and the construction of a new bridge. In the process, various demands for the designation of the existing Young Do curriculum centered on the advisory committee at the level of the private sector were presented.

C. Accordingly, the plaintiff submitted to Busan Metropolitan City a plan to install a S-type alternative bridge without demolishing the existing Young-do bridge, but the Busan Metropolitan City's side rejected it on the ground of safety and technical review on February 18, 2004 (such as reference materials submitted by the plaintiff, Oct. 8, 2010), and on November 23, 2004, "Yong-do school will construct a six-lane bridge in the way of repairing and reinforcement while preserving the current bridge to the maximum extent possible, and on March 30, 2004 and March 21, 2005, it notified the plaintiff of the results of traffic impact assessment, and on July 18, 2004, the Busan Metropolitan City sent an official announcement to the effect that "S-type alternative bridge construction is implemented as implemented as of July 4, 2006, respectively, and on the other hand, it should reflect the results of the consultation and resolution on the implementation plan for the urban planning project to the plaintiff.

D. However, on November 25, 2006 after deliberation by the Busan Metropolitan City Cultural Heritage Committee on November 25, 2006, the head of Busan Metropolitan City (hereinafter “Seoul Cultural Heritage Committee”) designated the Young Do as the designated cultural heritage (designated monuments No. 56) of Busan Metropolitan City. E. On December 6, 2006, the Plaintiff applied for permission for the alteration of the current state to the Defendant to whom the authority to permit the alteration of the current state was delegated by the Busan Metropolitan City Ordinance on the Protection of Cultural Properties on December 6, 2006 for permission for the alteration of the current state with respect to the establishment of Go Do-do and each six-lanes of the scale of the existing bridge, the construction of the temporary bridge, and the installation of the temporary bridge and both sides, and the construction of the temporary bridge, the alteration of the current state with respect to the construction of the existing materials and utilization plan under the Cultural Heritage Committee on December 18, 2006(hereinafter “The alteration of the current state”).

F. On August 25, 2009, after deliberation by the subcommittee established under the Busan Metropolitan City Cultural Heritage Committee, the Plaintiff filed an application for a change in the permission of the first change of the current state with respect to "explosive plan, removal of existing field posts, installation of street lamps, determination of the number of street lamps, determination of the type of dismissal, installation of machine rooms, installation of watch railing, installation of time stairs, and installation of traffic breaker", but the Defendant notified the Defendant of the lack of a resolution to postpone deliberation on the change of the exhibition hall on the ground that the Busan Cultural Heritage Committee presented a detailed budget plan for the construction of exhibition hall, financing plan for the construction of exhibition hall, specific exhibition plan, and plan to secure professional human resources for exhibition, and then submitted a re-application by supplementing the reserved matters to the Plaintiff.

G. Accordingly, on December 3, 2009, the Plaintiff filed an application for permission for the alteration of the current state including an amendment with the purport of separately consulting between Busan Metropolitan City and the Plaintiff on the burden of financial resources. However, on January 5, 2010, the Defendant requested submission of supplementary materials by January 7, 2010 on the ground that it needs to be supplemented in the plan for the establishment of the exhibition hall, and returned the said re-application documents to the Plaintiff on the ground that the Plaintiff did not submit supplementary materials on January 8, 2010.

H. On January 26, 2010, the Plaintiff filed an application with the Defendant for re-issuance of permission to change the status of the first permission to change the current state on the following grounds: (a) on February 2, 2010, according to the results of the deliberation by the Busan Metropolitan Cultural Heritage Committee, the Defendant: (b) on February 2, 2010, the Plaintiff: (c) on the condition that the Plaintiff would build a exhibition hall to exhibit the absence of, and related materials on, the cultural heritage (e.g., the dissolution of the permanent bridge; (d) on the condition that the construction of the exhibition hall and all related expenses are to be borne by it; and (e) on the condition that the establishment of the exhibition hall and the exhibition plan should be formulated and deliberated by the Cultural Heritage Committee prior to the dissolution of the permanent belt (hereinafter referred to as the “instant vice-section”); and (e) on the condition that the alteration of the current state following the repair, restoration, and the alteration of the status of the permanent intersection (hereinafter referred to as the “permission

[Ground of Recognition] A, Gap evidence 1, 2, Eul evidence 3-1, 4-1 through 11, Gap evidence 5-1 through 6, Gap evidence 6-1 through 4, Gap evidence 7-1 through 3, Gap evidence 8-1 through 3, Gap evidence 12-1, 2, Eul evidence 13, Eul evidence 2 through 18, Eul evidence 7 through 19, Eul evidence 2-1, Eul evidence 2-1, 2-1, 2-1, 2-2, and 20 through 28 respectively, and the purport of the whole pleadings

2. Judgment on the main defense of this case

With respect to the Plaintiff’s claim for revocation on the ground of the illegality of the father of this case, the Defendant constitutes an essential element of the permission for alteration of the present state of this case. In the absence of the father of this case, the Defendant did not grant permission for alteration of the present state of this case. Therefore, the instant lawsuit seeking revocation of the father of this case is unlawful.

In light of the above facts, although the defendant added the additional clauses of this case, it is not deemed that the additional clauses of this case were added with the intent of revoking the permission for the alteration of the current state of this case on the condition of cancelling the nonperformance of the additional clauses of this case, or the purport of cancelling the permission for the alteration of the present state of this case on the condition of cancelling the nonperformance of the additional clauses of this case, and on the other hand, the defendant cannot be deemed to have added the additional clauses of this case on the condition of revoking the permission for the alteration of the present state of this case without performing the non-performance of the additional clauses of this case. In addition, in the course of promoting the construction of the exhibition hall as a means of utilizing existing materials

Therefore, the father of this case, separate from the permission for alteration of the present state, shall be subject to administrative litigation (see Supreme Court Decision 91Nu1264, Jan. 21, 1992). Therefore, the defendant's defense is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

The instant subsidiary officer violated the Plaintiff’s property right by bearing expenses for the construction of exhibition halls under the Cultural Heritage Protection Act even Busan Metropolitan City, and violated the Plaintiff’s property right. ② The instant subsidiary officer orders an unrelated burden to permission for the alteration of the present state of this case, and thus violates the principle of prohibition of unfair decision-making. ③ In light of the attitude of the Busan Metropolitan City Mayor revealed in the process of deliberation by the results of the existing traffic impact assessment and the subcommittee of the Cultural Heritage Committee, it violates the principle of protection of trust, and ④ the Plaintiff

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) 부산 중구 중앙동 7가 80 번지와 부산 영도구 대교동 2-1 번지 일원에 소재한 영도대교는 부산광역시 소유의 공유재산으로 1934년 11월경 건립되었으나 시설의 노후화로 1966년 9월경부터 도개교(跳開橋) 기능이 고정되었고, 1986년 12월경부터는 8톤 이상 차량의 통행이 제한되었으며, 원고의 ■ 신축과 더불어 철거문제가 불거져 1997년부터 부산광역시와 시민단체, 문화재 관련 자문위원회 사이에 갈등이 있어 왔다.

2) On June 8, 2007, the Plaintiff started the temporary temporary bridge work to be used as a right-hand road and completed it on July 27, 2009. At present, it is still under dismantling work without the passage of the vehicle.

3) According to the minutes of the minutes of the Busan Metropolitan City Cultural Heritage Committee subcommittee, which was held from January 29, 2007 to July 16, 2009 after permission for the alteration of the first current state, a long-term plan including the establishment of a permanent exhibition hall has been implemented in Busan Metropolitan City, and a short-term plan has been implemented in the direction of the Plaintiff’s implementation.

[Ground of Recognition] Facts without dispute, the evidence mentioned above, Eul's evidence Nos. 30 and 31, Gap's evidence No. 15-1 through 5, the purport of the whole pleadings

D. Determination

1) Articles 75 and 34 of the Cultural Heritage Protection Act (hereinafter referred to as the “Act”) stipulate that permission for the alteration of the current state of a designated cultural property in time falls under the discretionary act of an administrative agency, and in such discretionary act, barring any explicit prohibition provision in the relevant Acts and subordinate statutes, even if there are no grounds under the relevant Acts and subordinate statutes, it may attach conditions, deadline, and additional burden to achieve administrative purposes. However, the contents of the subsidiary must be lawful and implement, and the principle of proportionality and equality, and the principle of prohibition of unfair decision-making, are not contrary to the principle of prohibition of unfair decision-making (see Supreme Court Decisions 96Nu1698, Mar. 14, 1997; 96Da49650, Mar. 11, 1997).

2) With respect to the instant case, the following circumstances revealed from the above recognition, namely, (i) traffic impact directly caused by the construction of a new permanent bridge may be improved by adding two lanes to the existing four-lanes; (ii) it leads to dismantling the existing permanent bridge because the permanent bridge has deteriorated to the extent that it can no longer function as a disaster risk facility; (ii) the Plaintiff presented a way to construct a new permanent bridge without dismantling the existing permanent bridge, on the ground of safety and technical review in Busan Metropolitan City; (iii) the Plaintiff, as a concept of restoring the new permanent bridge instead of demolishing the existing permanent bridge, is able to construct a new permanent bridge; (iii) the construction of a new permanent bridge instead of demolishing the new permanent bridge is subject to deliberation by the Busan Metropolitan City Cultural Heritage Committee; (iv) the construction cost of the new permanent bridge, including the permanent bridge, is no more than seven-dimensional construction cost of the new construction site, but also the installation cost of the existing permanent bridge is no more than one of the three-dimensional construction cost of the new construction site; and (v) the installation cost of the new permanent bridge is no more than one of the Busan Metropolitan City.

In other words, even if the new construction of a 4th regional office was caused by the dissolution of a permanent Do road, and the Plaintiff is obligated to bear some expenses for the dissolution and restoration of a permanent Do road by applying Article 90(1) of the Cultural Heritage Protection Act mutatis mutandis, it is unlawful to impose all the expenses for the dissolution and restoration of a permanent Do road on the plaintiff who is obligated to perform the duty of the dissolution and restoration of a permanent Do road and the construction of a new Do road as a facility in danger of disaster and lost the function of a bridge, and the construction of a new Do road was not covered by the result of the safety and technical examination of the construction of a new Do road.

4. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges' Quota

Judges Choi Young-chul