Samin Construction Co., Ltd. (Attorney O Young-young, Counsel for defendant-appellant)

Seosan Market (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

January 15, 2004

Daejeon District Court Decision 2003Guhap836 Delivered on July 9, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition on January 4, 2003 for return of the application for the approval of the housing construction project plan filed against the plaintiff shall be revoked.

1. Details of the disposition;

A. On December 27, 2002, the Plaintiff: (a) formed part of 104,454 square meters (hereinafter “instant application site”) out of 39 square meters of land, such as 6,639 square meters in the Sung-si, Seosan-si; (b) filed an application for the approval of the housing construction project plan to build 15 stories of rental apartment units with 15 stories of 53,520 square meters on the site of multi-family housing (hereinafter “instant application”).

B. However, on January 4, 2003, the Defendant rendered a disposition rejecting the instant application for the following reasons (hereinafter “instant disposition”).

(1) In order to construct apartment houses on the site of this case, the former Act on the Utilization and Management of the National Land Planning and Utilization (Act No. 6655, Feb. 4, 2002; hereinafter the same shall apply) shall be changed to a non-permanent community district according to the standards for establishing non-permanent community district development plan (No. 2001-136, May 30, 2001; hereinafter the “standards”). (1) In order to formulate a change in the national land use plan pursuant to Article 7(2) of the former Act on the Utilization and Management of the National Territory, the land supply and demand should be followed, but the area including part of the site of this case is already subject to consultation with the Administrator of the National Land Planning and Utilization Act on August 7, 200, because the natural environment is a typical type of development of the national territory, and it is not desirable to formulate and publicly announce a new plan to modify the existing Ordinance on the Construction and Utilization of the National Land within the scope of 10th Amendment to the National Land Planning and Utilization Act.

[Evidence] Facts without dispute, Gap evidence Nos. 2, 3, and 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) The Plaintiff filed the instant application on December 27, 2002 for the purpose of applying the former Act on the Utilization and Management of the National Territory and the criteria thereof, and the Defendant should have promptly examined whether the instant application falls under the area subject to development, and have taken the procedure of formulating and publicly announcing a plan to be developed, and formulating and publicly announcing the plan to be developed. However, the Defendant still applied the Act on the Utilization and Management of the National Territory and the criteria to the instant application on December 31, 2002, which is the deadline for applying the former Act on the Utilization and Management of the National Territory and the criteria therefor, without justifiable reasons. However, the Defendant, on the ground that it is a law at the time of disposal, made the

(2) Article 12(3) of the Addenda to the National Land Planning and Utilization Act (hereinafter “former National Land Planning and Utilization Act”), even if the administrative agency received the application for approval of the housing construction project before the said Act enters into force, is determined by how soon the administrative agency deal with its work, and the application of the former Act on the Utilization and Management of the National Territory and the former National Land Planning and Utilization Act may result in inequality by the person of the administrative agency. Thus, the above provision infringes on constitutional equality.

(3) According to Article 6-2 of the former Act on the Utilization and Management of the National Territory and Article 3-2 of the former Enforcement Decree of the Act on the Utilization and Management of the National Territory, the land supply and demand plan can be modified, and the land supply and demand plan of this case was added to the previous applied area (67,708 square meters) due to concerns about difficult development, and Seosan City is expected to greatly increase the demand for housing site and housing due to the attraction of the construction site (36,746 square meters). However, the defendant issued the disposition of this case on the basis of the land supply and demand plan of this case on the basis of only the basis of the previous applied area (67,708 square meters).

(4) The opinion of the Geum River Environmental Management Office, which was made on August 7, 200, was not a review of the application of this case, but was applied as it was to the application of this case, and the application for a deliberation on a traffic impact assessment or a plan for installing art decorations is not necessarily required to go through the prior procedure, and was made the disposition of this case without any request for supplementation even if it should go through the prior procedure.

(b) Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

(c) Fact of recognition;

(1) The instant application is a quasi-agricultural and forest area under the current Act on the Utilization and Management of the National Territory, and its land category is forest land.

(2) On December 27, 2002, the Plaintiff received the instant application to the Defendant along with a written request for change of national land use planning, which was a gold day, on December 27, 2002, and around 17:12, the Plaintiff sent to the head of Si/Gun/Gu, a written request for change of national land use planning. On the 30th day of the same month, the head of Si/Gun/Gu, the head of Si/Gu, who received the instant application and a written request for change of national land use planning, and sent to the head of Si/Gun/Gu, a written request for change of national land use planning. On the 31st day of the same month following the date, the Plaintiff sent a written request for change of national land use planning to the head of Si/Gun/Gu, and the head of Si/Gun/Gu, who received the said request for change of national land use planning from the Administrator of Si/Gun/Gu, and prepared a written request for change of national land use planning and 20th day of the same month.

(3) On December 28, 2002, Seosan City worked only on Saturdays (only on Saturdays, and on the fourth Saturday, it did not work normally except for a part of the civil petition department). On the 31st of the same month, the 31st of the same month was unable to work properly due to the corrosion, and on January 1, 2003, it was a public holiday.

(4) As to the Plaintiff’s application of this case, the Defendant did not go through the process of public announcement in the Official Gazette or daily newspapers of the intended contents in order to formulate a national land utilization plan according to the former Act on the Utilization and Management

(5) The ordinary official gazette’s publication process is to be made, first of all, by means of e-mail or FAX, after making a decision to publish a written request for the official gazette through the process of control on the day, by making a correction and printing on this day, and by means of books and transport on the third day, by distributing and distributing the fourth day, the request for the official gazette’s publication is also possible.

(6) On the other hand, on December 18, 2002, the defendant made a request for the publication of the decision to modify other national land utilization plans to the Ministry of Government Administration and Home Affairs, which was published in the Official Gazette dated December 24, 2002.

[Evidence] Facts without dispute, Gap evidence Nos. 2, 3, Eul evidence Nos. 1, 2, 3, Eul evidence No. 4-1, 2, Eul evidence No. 5, 8, Eul evidence No. 9-1 through 4, Eul evidence No. 10-1, 2, and 3, and the purport of the whole pleadings

D. Determination

(1) As to the first argument

(A) The Plaintiff filed the instant application at the time of the enforcement of the former Act on the Utilization and Management of the National Territory, but thereafter, the current Act was abolished by the implementation of the former Act on the Utilization and Management of the National Territory, and the Defendant did not publicly announce the details of the instant application in the Official Gazette or daily newspapers, etc. at the time of the enforcement of the Act on the Utilization and Management of the National Territory. As such, the applicable Act at the time of the instant disposition by

The former Act on the Utilization and Management of the National Territory, which is a law at the time of the application of this case, does not put restrictions on the scale of a building when a private business operator applied for development activities for housing construction, and thus is subject to the application of the former Act on the Utilization and Management of the National Territory, may modify the plan for utilization of the national territory within the scope of the defendant's discretionary power. However, according to the former Act on the Utilization and Management of the National Territory, which is the Act at the time of the disposition of this case, the former Act on the Utilization and Management of the National Territory limits the scale of a building which is classified into a management area, a management area, a production management area, or a planned management area, and the scale of a building which can be constructed within the same management area, to a building with four floors or less. In the case of a planned management area,

If the law at the time of application differs from each other, in principle, the law at the time of disposition shall be applied and the law at the time of application shall not be applied. Even if the disposition standards have been changed after the application, the new criteria should be taken in accordance with the new criteria, unless the criteria for permission have been changed by the competent administrative agency at the time of receiving the application and without any justifiable reasons.

(B) Therefore, we examine whether it was due to the Defendant’s delay in handling the instant application without justifiable grounds, as at January 1, 2003 when the former National Land Planning and Utilization Act went into effect, without going through the procedures of public announcement in the Official Gazette or daily newspapers, in order to formulate a national land utilization plan under the former Act on the instant application.

According to relevant Acts and subordinate statutes, where a private business operator applies for development activities for housing construction in an area where a plan for development of a village district is not established and publicly announced, the Mayor shall examine whether the area falls under an area subject to development application, unless it falls under Article 2-4 (2) of the former Enforcement Rule of the Act on the Utilization and Management of National Territory, and if it is determined as an area subject to development, the Mayor shall establish and publicly announce a plan for development including the area subject to development application, and shall prepare a village district. In the case of the application of this case, it shall be determined whether it is appropriate to use the quasi-agricultural area as a collective living ground for the residents, and the defendant shall prepare a change of the plan for utilization of national land. However, the application of this case was received five days before the implementation of the former National Land Planning and Utilization Act, and it is difficult for the defendant to find that the application of this case was not an obligation to receive the request through an official gazette within two days from the date of request, and it is difficult for the defendant to apply the plan to the public announcement in the Official Gazette.

Therefore, the plaintiff's first argument is without merit.

(2) As to the second argument

Article 12 (2) of the Addenda to the former National Land Planning and Utilization Act provides that the former Urban Planning Act shall apply to cases where a public hearing or hearing of opinions of residents has been conducted pursuant to the former Urban Planning Act, and Article 12 (3) provides that the previous Act shall apply to the current status of the National Land Planning and Utilization Act in cases where a public announcement is made in the Official Gazette or daily newspapers to formulate a national land utilization plan according to the former Act on the Utilization and Management of the National Territory is made. If a person authorized to establish an urban planning and a person authorized to draft a plan for the utilization of a national territory publicly announces his/her intent to establish such plan, it may create a new legal relationship based on such public announcement. Therefore, in order to protect such trust, it appears that the former Act has been applied as an exception to the application of the disposition law in order to protect such trust, and if such a public announcement has not been made, it is difficult to apply the disposition law, which is a principle to form trust to the general public, and thus, it is not possible

E. Sub-decision

The plaintiff filed the application of this case on the premise that it would be modified as above while requesting the alteration of the plan for utilization of the national territory to quasi-urban areas as to the place of application of this case. However, according to the former National Land Planning and Utilization Act, the land of this case cannot be designated as a Class 2 district unit planning zone which alleviates restrictions on the size of the building because it does not reach 300,000 square meters. Thus, the plaintiff's application of this case is unlawful as it does not meet the substantive requirements under the new law, and thus, the defendant must return it to the defendant. Thus, the defendant's disposition of this case is legitimate without any need to further examine the remaining grounds for disposition and the remainder of the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation on the premise that the disposition of this case is unlawful shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Kim Yong-han (Presiding Judge)