Whether rejection disposition may be taken into consideration the criteria for permission for development acts under the same Act, even in cases where an applicant has filed a final judgment on partition of co-owned land when applying for permission for land division subject to permission for development acts under the former National Land Planning and Utilization Act

In light of the purport and purpose of the permission system for division of land under the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”), the scope of discretion of the permission authority for development activities, and the purport of the provisions of the Act on the Cadastral Records, etc., the permission authority for development activities may render a disposition of refusal taking into account the criteria for permission for development activities under the National Land Planning and Utilization Act even if an applicant files an application for permission for division of land and submits a final and conclusive judgment, etc.,

Article 56(1)4 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 51 subparag. 5(a) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 23718, Apr. 10, 2012); Article 79 of the Act on Land Survey, Waterway Survey and Cadastral Records; Article 65(2) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 83(1) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Act No. 3899, Oct. 10, 2011)

Plaintiff 1 and one other (Law Firm Robs, Attorneys Kim Jong-san et al., Counsel for the plaintiff-appellant)

South Ocean Market

Seoul High Court Decision 2012Nu24209 decided December 11, 2012

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the fourth ground for appeal

A. According to Article 56(1)4 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”) and Article 51 subparag. 5(a) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 23718, Apr. 10, 201); the division of land conducted without obtaining permission, authorization, etc. under the relevant statutes within a green area, control area, agricultural and forest area, and natural environment conservation area should be subject to permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of a Si/Gun (hereinafter “person entitled to permission for development acts”).

The purpose of the National Land Planning and Utilization Act to regulate land division as development activities is to prevent land from being developed indiscreetly and to achieve the purpose of promoting public welfare by managing land use in a rational and efficient manner. As such, the person entitled to permission for development activities may decide on whether to grant permission at a discretion, taking into account whether there is a concern over impeding the rational use of the relevant land and the promotion of

B. Meanwhile, Article 79 of the Act on Land Survey, Waterway Survey and Cadastral Records, which was enforced at the time of the instant disposition, and Article 65(2) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (amended by Presidential Decree No. 24443, Mar. 23, 2013) and Article 83(1) of the former Enforcement Rule of the Act on Land Survey, Waterway Survey and Cadastral Records (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 389, Oct. 10, 201), in order for a landowner to divide land, a written application stating the grounds for subdivision shall be submitted to the competent cadastral authority, and a copy of a written permission shall be accompanied by a final judgment or a copy of a final judgment where land is divided according to a final judgment of a court.

As can be seen, the legislative purpose of efficient management of the national land and the protection of ownership of the people is to achieve harmoniously by examining whether the requirements for regulation, such as permission for development activities, and requirements for change of rights under the private law, such as final and conclusive judgments, are met at the time of filing an application for land division. Thus, in order to apply for partition of land subject to permission for development activities under the National Land Planning Act, a copy of the permission must be submitted, and it does not change solely on the ground that there

In light of the purport and purpose of the land division permission system under the National Land Planning Act, the scope of discretion of the development permission authority, and the purport of the provisions of the Act on Cadastral Records, etc., the development permission authority may render a rejection disposition taking into account the development activities permission standards, etc. under the National Land Planning Act even when an applicant files an application for land division permission and submits a final judgment, such as

C. According to the reasoning of the lower judgment, the lower court determined the legality of the instant disposition rejecting the Defendant’s application for permission for division of land under the National Land Planning Act regarding the instant forest that belongs to an agricultural and forest area and management area under the National Land Planning Act, and did not consider the circumstance in which the Plaintiffs received the judgment on partition of co-owned property as to the instant forest, and did not consider the circumstance in which the said judgment became final

In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to land division based on a final judgment and land division relationship subject to permission under the National Land Planning Act.

The Supreme Court precedents cited by the Plaintiff in the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

2. As to the grounds of appeal Nos. 1 and 2

In the case of a discretionary rule on internal affairs of an administrative agency, there is no legal effect that externally binds citizens or courts. Thus, the legality of administrative disposition based on such discretionary rule is not determined depending on whether the disposition conforms to the provisions of the discretionary rule, but on whether the disposition is in accordance with the provisions of the relevant law, and there is no illegality of deviation from or abuse of discretionary power such as violating the principle of proportionality and equality under the Constitution (see, e.g., Supreme Court Decisions 93Nu21958, Mar. 8, 1994; 97Nu20236, Mar. 27, 1998).

According to the reasoning of the judgment below, the court below determined the legality of the disposition of this case based on the Guideline on the Operational Restrictions on Real Estate in Namyang-si (hereinafter “Operational Guideline”), on the premise that the Operational Guideline in this case cannot be the basis for the determination of the legality of the disposition of this case because it has no legal effect as a rule on administrative affairs inside the defendant, a local government, but did not proceed to the determination of unconstitutionality, etc. of the Operational Guideline in this case under the relevant laws, such as the National Land Planning Act.

In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the legality of administrative disposition based on the administrative disposition rules inside a local government, or the unconstitutionality of the operating guidelines of this case.

3. As to the third ground for appeal

The lower court determined that the instant disposition did not err by deviating from or abusing discretion, such as violating the principle of proportionality and equality under the Constitution, in light of the following: (i) the instant forest is an area necessary to promote the agriculture and forestry industry and preserve forests as an agricultural and forest area and conservation and management area under the National Land Planning Act; (ii) Hof F&C, including the instant forest, has been divided into several parcels of land in a small scale, while maintaining a small-scale square system for each owner; and (iii) the Plaintiffs’ application for division of forest land in this case is deemed to have been completed by the said company; and (iii) even if the Defendant is a land division subject to permission for development activities, it is insufficient to deem that the practice that the application for subdivision was accepted upon the application for subdivision in accordance with the final judgment of the court or the decision of recommending reconciliation, etc.

Such determination by the court below is just on the basis of the legal principles as to discretionary action of permission for development activities under the National Land Planning Act, and there is no error of law by misunderstanding the legal principles as to deviation from and abuse of discretion of the disposition of refusal to grant permission for land division under the National Land Planning Act, and on the other hand, such determination by the court below is also deemed to include the determination as to the absence of other grounds for deviation

4. Conclusion

Therefore, all appeals are 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 Kim So-young (Presiding Justice)