"Areas, districts, etc. prescribed by Ordinance of the Prime Minister, Ordinances of Ministries, and municipal ordinances and rules according to delegation of other Acts and subordinate statutes" under Article 5 subparagraph 3 of the Framework Act on the Regulation of Land Use are effective only when the Minister of Land, Infrastructure and Transport publicly announces the name thereof and relevant Acts and subordinate statutes in the Official Gazette (affirmative); and whether the head of a Si/Gun/Gu has a duty to register such areas, districts, etc. in the national land use information system upon notification by the heads of central administrative agencies or the heads of local governments only when the designation of the relevant

Article 1 of the Framework Act on the Regulation of Land Use (hereinafter “the Act on the Regulation of Land Use”) aims to ensure transparency in the regulation of land use and to reduce inconvenience to the land use of citizens and to contribute to the development of the national economy (Article 1). Article 2 Subparag. 1 of the Act on the Regulation of Land Use defines “area, district, zone, region, complex, urban/Gun planning facilities,” as “area, district, etc.” a group of land on which restrictions on the use and preservation of land are placed, such as restricting development activities or obtaining permission, permission, etc. related to land use regardless of names, such as areas, districts, zones, zones, complexes, urban/Gun planning facilities, etc., as “area, district, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules according to delegation by other Acts and subordinate statutes,” and Article 5 Subparag. 3 of the same Act defines “area, district, district, etc.” as “area, district, etc. prescribed by the Ordinance of the Ministry of Land, Infrastructure and Transport may not be established unless the Minister makes public notice in the Official Gazette.

In light of the purpose and legislative purport of the Land Use Regulation Act, the contents and structure of the relevant provisions, etc., “area, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules according to delegation by other Acts and subordinate statutes” has the effect of “area, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules” only in the Official Gazette, and the head of a central administrative agency or the head of a local government may, on the basis of such fact, designate a specific area, district, etc. on the basis of the official gazette. Furthermore, registering the contents of designation in the national land use information system on the premise that the act of designation is effective, such as the relevant area, district, district, etc., is to allow citizens to know the contents thereof from the date of entry into force. As such, in cases of “area, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules by delegation by other Acts and subordinate statutes”, the head of a Si

Article 1, Article 2 subparag. 1, Article 5 subparag. 3, Article 8(8) and (9), and Article 9(1) of the Framework Act on the Regulation of Land Use

Plaintiff (Law Firm Gyeong, Attorneys Lee Sung-hoon et al., Counsel for the plaintiff-appellant)

Ulsan District Court Decision 200Na14484 decided May 2, 200

Busan High Court Decision 2016Na53251 decided December 15, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) According to Article 23-2(1) of the former Act on the Protection of Cultural Properties and Article 23-2(1) of the former Ordinance on the Protection of Cultural Properties in Ulsan Metropolitan City (amended by Ordinance No. 1149, Jul. 8, 2010; hereinafter “former Ordinance on the Protection of Cultural Properties”), where a building or facility is installed or expanded in an area within 500 meters from an outer boundary point of a protection zone designated to protect designated cultural heritage of Ulsan Metropolitan City (However, in cases of residential areas, commercial areas, and industrial areas under Article 36 of the National Land Planning and Utilization Act, within 200 meters; hereinafter “area subject to examination on impact of the preservation of cultural heritage”), the relevant administrative agency’s permission should be obtained after examining whether the construction affects the preservation of cultural heritage. If designated as a protection zone of designated cultural heritage of Ulsan Metropolitan City, the scope of zones subject to examination on impact of the preservation of cultural heritage shall be automatically determined in accordance with the said Ordinance without

(2) On December 24, 2008, the Ulsan Metropolitan City Mayor announced a topographic map by collectively coordinating the scope of the designation and protection zone of the cultural properties of the 71 city designated cultural properties including the instant cultural properties which are designated cultural properties of Ulsan Metropolitan City, and on December 23, 2008, the preceding day, the Seoul Metropolitan City Mayor announced the adjustment thereof in accordance with the Framework Act on the Regulation of Land Use (hereinafter “the Act on the Regulation of Land Use”). On December 23, 2008, the head of Ulsan Metropolitan City announced that subsequent measures should be taken, such as registering the instant cultural properties and their protection zone in the national land use information system. Upon receipt of the above notification, the head of Ulsan Metropolitan City, upon registering the content of the instant cultural properties and their protection zone in the national land use information system, the areas subject to review on the impact of the preservation of cultural properties were registered only on September 12,

(3) On March 10, 2014, the Plaintiff purchased each of the instant real estate located within the zone subject to review on the impact of preserving cultural heritage of the instant cultural heritage, and completed the registration of ownership transfer on April 25, 2014. The confirmation and explanatory note of the object of brokerage prepared by a licensed real estate agent at the time of the sales contract did not state that each of the instant real estate was located within the zone subject to review on the impact of preserving cultural heritage and limited

(4) On August 27, 2014, the Plaintiff filed an application for permission to engage in development activities to build solar power plants on each of the instant real estate, and the Ulsan Metropolitan City Mayor did not grant such permission on the ground that the said construction has a significant adverse effect on the historical landscape of the instant cultural heritage.

B. The lower court determined as follows based on the foregoing factual basis.

(1) According to Article 8(8) and (9) of the Land Use Regulation Act, Article 7(3) of the former Enforcement Decree of the Framework Act on the Regulation of Land Use (amended by Presidential Decree No. 21667 of Aug. 5, 2009), where the scope of area, district, etc. is directly designated pursuant to statutes or municipal ordinances and rules without any separate designation procedure, the head of a local government shall notify in advance the head of the relevant Si/Gun/Gu of the name, location, area, etc. of the area, district, etc., and the head of the Si/Gun/Gu so notified shall make it available for public perusal by registering the details thereof in the national land use information system. However, on December 24, 2008, the Ulsan Metropolitan City Mayor did not enter the contents of the area subject to examination on impact of cultural heritage preservation of the cultural heritage of this case into the national land use information system even though the head of Ulsan-si notified the head of the relevant Si/Gun/Gu of the designation and protection zone of the cultural heritage of this case.

(2) The Minister of Land, Transport and Maritime Affairs (the competent administrative agency changed from the Ministry of Land, Transport and Maritime Affairs to the Ministry of Land, and the Ministry of Land, Transport and Maritime Affairs on February 29, 2008, and the Ministry of Land, Transport and Maritime Affairs on March 23, 2013; hereinafter “the Ministry of Land, Transport and Maritime Affairs”) has publicly announced an impact assessment zone on the preservation of cultural heritage in the Official Gazette as “area, district, etc. under the Land Use Regulation Act” in consideration of the purpose, purport, regulation, etc. of the Act on the Regulation of Land Use, but it is difficult to deem that the head of a metropolitan government has a duty to register the land use information system of the head of the basic local government by designating a group of land subject to restrictions on the use of land and notifying the head of the relevant basic local government of the content of the land use regulation, and the Minister of Land, Infrastructure and Transport has to publicly notify the relevant

C. Judgment of the Supreme Court

(1) Article 2 Subparag. 1 of the Land Use Regulation Act defines “area, district, zone, complex, urban/Gun planning facility, etc. regardless of their names,” as “area, district, zone, etc.” under each subparagraph of Article 5. Article 5 Subparag. 3 of the same Act defines “area, district, district, etc., as “area, district, etc., prescribed by Ordinance of the Prime Minister, Ordinances of the Ministries, and municipal ordinances and rules upon delegation by other Acts and subordinate statutes,” under the title of “area, district, district, etc., where the use regulation is to be conducted,” and “area, district, etc., prescribed by Ordinance of the Prime Minister, Ordinances of the Ministries, and municipal ordinances and rules” as “area, district, etc., in which the Minister of Land Use Regulation is to be conducted, and to contribute to the development of the national economy” (Article 1). Accordingly, Article 2 Subparag. 1 of the Land Use Regulation Act defines “where the head of a central administrative agency or a local government designates a specific district, district, etc., by lot in advance, and notify the head of the relevant details thereof.

In light of the purpose and legislative purport of the Land Use Regulation Act, the contents and structure of the relevant provisions, etc., “area, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules according to delegation by other Acts and subordinate statutes” has the effect of “area, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules” only in the Official Gazette, and the head of a central administrative agency or the head of a local government may, on the basis of such fact, designate a specific area, district, etc. on the basis of the official gazette. Furthermore, registering the contents of designation in the national land use information system on the premise that the act of designation is effective, such as the relevant area, district, district, etc., is to allow citizens to know the contents thereof from the date of entry into force. As such, in cases of “area, district, etc. prescribed by Ordinance of the Prime Minister, Ministerial Ordinance, and municipal ordinances and rules by delegation by other Acts and subordinate statutes”, the head of a Si

(2) We examine the above facts in light of the legal principles as seen earlier. An area subject to examination of impact on the preservation of cultural heritage of Ulsan Metropolitan City designated cultural heritage is an area where land use is regulated, and its scope is determined pursuant to the former Ordinance on the Protection of Cultural Properties without any separate procedure, if the designation of cultural heritage and its protection zone are determined. This is an area, district, etc. prescribed by municipal ordinances and rules upon delegation by the Cultural Heritage Protection Act, which should be announced by the Minister of Land, Infrastructure and Transport as an area, district, etc.

However, the "Public Notice of Area, District, etc. where the Ordinance on the Protection of Cultural Properties under Article 23-2(1) of the Ulsan Metropolitan City Ordinance on the Protection of Cultural Properties" is included in the "Public Notice of June 7, 2006 (No. 2006-182 of the Ministry of Construction and Transportation)," and the "Area subject to Review on Impact of Preservation of Cultural Properties under Article 23-2(1) of the Ulsan Metropolitan City Ordinance on the Protection of Cultural Properties" was effective as an area, district, etc. where land use has already been limited from that time. The Ulsan Metropolitan City Mayor was included in the zone subject to review on impact of preservation of cultural properties under Article 206-182 of the Public Notice of the Ministry of Construction and Transportation, as of December 24, 2006 and notified the head of Ulsan Metropolitan City Mayor of the content thereof, and the head of Ulsan Metropolitan City has a duty to register the content that each real estate of this case is located within the zone subject to review on impact of preservation of cultural properties and land

(3) The lower court determined that, when the Minister of Land, Transport and Maritime Affairs announced a zone subject to examination on the impact of the preservation of cultural heritage of this case in the official gazette as "area, district, etc. under the Land Use Regulation Act" or the head of Ulsan Metropolitan City Mayor notified by the head of Ulsan Metropolitan City Mayor about the zone subject to examination on the impact of the preservation of cultural heritage of this case, even if the above zone was not included in the public notice by the Minister of Land, Infrastructure and Transport (Article 1.b. (2) of the same Act) was erroneous. However, as seen earlier, the lower court determined that the head of Ulsan Metropolitan City was obligated to register it in the national land use information system even if the zone was not included in the public notice by the Minister of Land, Infrastructure and Transport (Article 1.b. (1) of the same Act) and received the Plaintiff’s claim for damages on the ground that there was a duty to register it in the national land use information

2. As to the grounds of appeal Nos. 2 and 3

Considering the contents in the notice given by Ulsan Metropolitan City Mayor on December 23, 2008 and the materials attached to the notice, and the area subject to review of impact on the preservation of cultural heritage of this case is determined by statutes and municipal ordinances without any separate designation procedure, the lower court determined that there was a notification from Ulsan Metropolitan City Mayor under Article 8(8) of the Act on the Regulation of Land Use, and that even if there were some deficiencies in the contents of the notice given by Ulsan Metropolitan City Mayor, the lower court can recognize the duty to register the national land use information system of the Ulsan-gun Gun.

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on notification obligation under Article 8(9) of the Land Use Regulation Act, or by failing to exhaust all necessary deliberations as to whether the Ulsan Metropolitan City Mayor violated notification obligation, contrary to what is alleged in the grounds of appeal.

3. Regarding ground of appeal No. 4

The lower court determined that the Plaintiff sustained damages equivalent to the difference between the sales price paid for the purchase of real estate without knowing that there was a statutory limitation on the area subject to review of impact on the preservation of cultural heritage on each of the instant real estate due to the violation of the obligation to register the national land use information system of the head of Ulsan-gu, the lower court determined that the Plaintiff sustained damages from the difference between the sales price paid for the purchase of real estate and the sales price paid for the registration of the same fact. Pursuant to Article 202-2 of the Civil Procedure Act, the relevant amount

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not exhaust all necessary deliberations regarding the calculation of damages or did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. Conclusion

The Defendant’s appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)