[1] The time when the determination of an urban or Gun management plan under the former National Land Planning and Utilization Act takes effect, and the time when the interested party files a lawsuit seeking revocation (=the date when five days have passed after the public notice)

[2] The purpose of the former Framework Act on the Regulation of Land Use, which, in principle, requires the preparation and public announcement of topographic maps when designating "area, district, etc."

[1] Articles 30(6), 31(1), and 32(1) and (4) of the former National Land Planning and Utilization Act (Amended by Act No. 11690, Mar. 23, 2013); Article 20 of the Administrative Litigation Act / [2] Articles 1, 3, and 5 subparag. 1 [Attachment], and Article 8(2) and (3) of the former Framework Act on the Regulation of Land Use (Amended by Act No. 11690, Mar. 23, 2013)

[1] Supreme Court Decision 2004Du619 Decided June 14, 2007 (Gong2007Sang, 1084) Supreme Court Decision 2009Du4913 Decided December 9, 2010 / [2] Supreme Court Decision 2014Du37122 Decided April 7, 2017 (Gong2017Sang, 980)

Plaintiff 1 and one other (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor

Nowon-gu, Seoul Special Metropolitan City (Law Firm Square, Attorneys Lee In-type et al., Counsel for defendant-appellant

Seoul High Court Decision 2014Nu51274 decided February 10, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. The former National Land Planning and Utilization Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former National Land Planning Act”) provides that when an urban or Gun management plan (hereinafter “urban management plan”) is determined, the determination shall be publicly notified (Article 30(6)); when the determination of an urban or Gun management plan is publicly notified, a drawing shall be prepared and publicly notified on a topographical map indicating the cadastral matters, as prescribed by Presidential Decree (Article 32(1) and (4)); the determination of an urban management plan shall take effect five days after the date public notice is given pursuant to Article 30(6) (Article 31(1)).

In cases where an administrative agency takes an administrative disposition through a public notice or announcement, the parties to the disposition are many and unspecified persons, and the effect of the disposition is uniformly applied to many and unspecified persons. Thus, regardless of whether a person who has an interest in the administrative disposition actually knew of the fact that a public notice or announcement was made, it should be deemed that he/she was aware of the administrative disposition on the date when the public notice takes effect (see Supreme Court Decision 2004Du619, Jun. 14,

According to such legal principles, the determination of an urban management plan under the former National Land Planning Act shall take effect on the date five days have elapsed after the public notice was made pursuant to Article 31(1) of the same Act, and the interested parties shall have known of the disposition at that time, barring any special circumstance, so the filing period of a lawsuit seeking revocation shall be calculated from that time (see Supreme Court Decision 2009Du4913, Dec. 9, 2010, etc.).

B. The former Framework Act on the Regulation of Land Use (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) aims to ensure transparency in the regulation of land use and reduce inconvenience to the people’s land use and contribute to the development of the national economy (Article 1). Even if the provisions of other Acts stipulate in relation to the designation, operation, etc. of “area, district, district, etc.” (Article 3) and “area, district, district, etc.” shall not be newly established except as otherwise provided in each subparagraph of Article 5 of the same Act. Article 2 subparag. 7 of the former National Land Planning Act provides that “site for urban/Gun planning facilities” under subparagraph 1 of Article 5 of the same Act shall be one of “area, district, etc.” (Article 5 subparag. 1). In addition, where the head of a local government designates “area, district, etc.”, he/she shall prepare and publicly notify a topographic map in the official bulletin of the local government, and accordingly, Article 8(2) of the designation becomes effective.

In light of the purpose and legislative purport of the former Framework Act on the Regulation of Land Use and the contents of relevant provisions, it is necessary to make and publicly announce topographic maps, in principle, when designating “area, district, etc.” under the former Framework Act on the Regulation of Land Use, to promote convenience in land use and ensure predictability and transparency in administration by clearly announcing the contents of land subject to regulation, such as restrictions on land use by the public (see Supreme Court Decision 2014Du37122, Apr. 7, 2017).

2. The lower court, based on its stated reasoning, determined that the instant urban management plan’s determination falls under the designation of “area, district, etc.” as stipulated in the Framework Act on the Regulation of Land Use, and thus, the instant urban management plan’s determination becomes effective on the date of announcement of topographic drawings, etc. concerning “area, district, etc.” pursuant to the main sentence of Article 8(3) of the same Act, and determined that the instant lawsuit was unlawful after

However, in light of the above provisions and the above legal principles of the former National Land Planning Act and the former Framework Act on the Regulation of Land Use, the decision of the instant urban management plan becomes effective at the expiration of five days from the date of announcement of the decision and topographic drawings, etc. under Article 31(1) of the former National Land Planning Act and Article 8(3) of the former Framework Act on the Regulation of Land Use, and Article 8(3) of the former Framework Act on the Regulation of Land Use, and the party who has an interest in the case becomes aware of the disposition at that time, and the period of filing a lawsuit against the decision should also be calculated from that time. On the contrary, the starting point of starting the period of filing a lawsuit shall not be calculated ahead of the date of announcement of topographic drawings, etc.

According to the reasoning of the lower judgment and the record, the Plaintiffs filed the instant lawsuit on June 20, 2013, before the lapse of 90 days from the fifth day after the decision of the instant urban management plan and the topographic map were publicly announced on March 21, 2013.

Therefore, even though the lawsuit of this case was legally filed within the filing period, the court below held that the lawsuit of this case was unlawful as it was filed 90 days after the date on which the decision of the urban management plan became effective. In so doing, the court below erred by misapprehending the legal principles on the effective date of the decision of the urban management plan and the filing period of the revocation lawsuit, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)