2014Nu6205 Revocation of the authorization of the project executor of urban planning facility project and implementation plan.

A Incorporated Foundation A

Sungnam City

Suwon District Court Decision 201Guhap3983 Decided March 8, 2012

Seoul High Court Decision 2012Nu10040 Decided March 14, 2013

Supreme Court Decision 2013Du7025 Decided July 10, 2014

November 19, 2014

December 24, 2014

1. The defendant's appeal is dismissed.

2. The defendant bears the total costs of the lawsuit after the filing of the appeal.

1. Purport of claim

B Park Urban Planning Facilities ( Charnel, Roads, and Parking Lots) by the Defendant against the Plaintiff on August 31, 2010

The designation of a project implementer and the revocation of authorization for an implementation plan shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

This court's reasoning is as follows, except where the defendant added the following judgments to the argument that the defendant raised in addition to this court, and thus, it is consistent with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the defendant's assertion

A. Summary of the argument

In light of the fact that funeral facilities established in the Sungnam-si area are enough to meet the demand of the male citizens, it is a question whether there is a need to additionally permit large-scale charnel facilities by taking into account the demand of other regions, 10 or more elementary high schools are located in the vicinity of the project site of this case, and the project site of this case is in contact with the books used by the residents. If the disposition of this case is revoked, it is reasonable to maintain the judgment through circumstances that it constitutes a case where the cancellation of the disposition of this case is substantially detrimental to public welfare, even if the disposition of this case deviates from or abused discretion.

B. Determination

In a case where an administrative disposition is unlawful, in principle, the revocation thereof should be revoked, and where it is extremely inappropriate for the public welfare, a judgment can be rendered to the effect that the revocation of an illegal administrative disposition is exceptionally denied. As such, the application of an assessment judgment must be limited under extremely strict requirements, and the application of an assessment judgment needs to be revoked or amended in determining whether it is substantially inappropriate for the public welfare, which is the requirement thereof. The application of an assessment judgment should be determined by comparing and comparing the situation against the public welfare which may arise from the revocation change (see, e.g., Supreme Court Decision 2009Du8359, Dec. 10, 2009).

However, in light of the following circumstances acknowledged by the evidence duly adopted by the first instance court, namely, the instant project is carried out within the site determined by the basic urban planning of the Sungnam City and the urban planning plan (park) determined in 2007 by the Ministry of Land, Transport and Maritime Affairs, and is in line with the purpose of the already determined urban planning, and the necessity to install and operate a charnel is recognized when considering the fact that funeral culture in cremation is spreading more than the burial, not burial, and it is difficult to conclude that this is considerably contrary to public welfare, and that the residential environment, etc. of neighboring residents is significantly worse compared to the existing ones merely because a charnel facility is installed in an area designated as a cemetery park, it is difficult to readily conclude that neighboring residents are against the instant project as a negative settlement of a charnel. In light of the fact that traffic congestion is likely to occur due to the increase of visitors due to the installation of a large-scale charnel house, it cannot be concluded that the revocation of the instant disposition does not violate the public welfare, and there is no special reason to deem otherwise. Accordingly, this part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, judge and assistant

Judges fixed-type

Judge Lee Young-young