(영문) 대법원 2012.9.13.선고 2012다32317 판결

1. The court below found the following facts as stated in its reasoning: (a) although the plaintiff submitted a proposal to formulate an urban management plan regarding charnel facilities and access roads with the head of Ulsan Metropolitan City having the jurisdiction over the project site except for the land in this case, the head of Ulsan Metropolitan City, the head of Ulsan Gun rejected the proposal; and (b) the plaintiff filed a lawsuit against the head of Ulsan Gun to revoke the above disposition, but the judgment of loss was finally affirmed. Based on this, the court below determined that the head of Ulsan Gun's rejection of the application against the plaintiff for the return of charnel facilities, etc. on the ground that the return of the application by the plaintiff was based on "the excess of the demand in the mid- to long-term supply and demand in the funeral facilities in Ulsan Metropolitan City", not on the ground that the land in this case was excluded from the land in this case; and even without the defendant's refusal to use the land in this case, the plaintiff could not be able to carry on the business including the charnel facilities with the land in this case as the project site. As a result, the cost incurred by the plaintiff was inevitable.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, the plaintiff filed a lawsuit against the head of Ulsan-si to revoke the disposition of revoking the application for the formulation of an urban management plan against the head of Ulsan-gu, but the judgment of the losing court is declared and the judgment becomes final and conclusive. However, according to the judgment of the court below, the reason for the plaintiff's loss in the above lawsuit is not due to the justifiable reason that "the head of Ulsan-gu, Seoul Metropolitan City's funeral establishment's mid- and long-term supply plan exceeds the demand amount of the above return disposition," or that "the funeral culture is changed to natural burial ground, tree burial ground, etc. rather than the charnel facilities" rather than the charnel facilities. Thus, it is not a facility that can be determined as an urban planning facility because it does not fall under a "private charnel facility that provides for the use by the plaintiff at the time" and it is not a facility that can be determined as an urban planning facility, and therefore, the provisions on the restriction of the area of permission for mountainous district conversion under the Mountainous Districts Management Act, etc.

In light of this, even if the head of Ulsan-gu had determined that the return of the Plaintiff’s application for drafting an urban management plan was based on the grounds of “in excess of the demand for the mid- to long-term supply and demand plan for funeral facilities in Ulsan Metropolitan City” rather than on the site subject to the Plaintiff’s rejection of the application, and as a result, the head of Ulsan-gu judgment became final and conclusive to the effect that the above return disposition is legitimate, as long as there is no other data to deem that the installation of a charnel facility is impossible due to other reasons except for the reason that the head of Ulsan-gu violated the above restriction on the area of permission for mountainous district conversion, which is the ground for disposition, the Plaintiff’s return of the application shall not be readily concluded that the installation of a charnel facility is not allowed even if the Plaintiff intends to divert

The court below should have deliberated and judged whether there is a proximate causal relation between the defendant's refusal to use the land in this case and the plaintiff's loss equivalent to the cost of the land in this case by means of other methods, just because the judgment against the plaintiff was rendered and confirmed in the administrative litigation prior to the plaintiff's lawsuit against the head of Ulsan-gu, it is not readily concluded that it was impossible to conduct the business of the charnel facilities, etc. using the land in this case as the business site. However, the court below should have deliberated and judged whether there is a proximate causal relation between the defendant's refusal to use the land in this case and the plaintiff's loss equivalent to the cost of the land in this case. Therefore, the court below erred by misapprehending the legal principles on proximate causal relation, and it

3. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.