Suwon Co., Ltd. (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Head of Gun

april 3, 1991

The disposition of non-permission of a contract for each land on August 17, 1990 with respect to each land listed in the separate sheet against the plaintiff shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

According to the above-mentioned Ordinance No. 1, No. 6 of the Ministry of Construction and Transportation No. 1, No. 2 of the Ministry of Land, Infrastructure and Transport No. 2 of the Ministry of Land, Infrastructure and Transport No. 8 of the Ministry of Land, Infrastructure and Transport, and the Ministry of Land, Infrastructure and Transport No. 2 of the Ministry of Land, Infrastructure and Transport No. 5 of the Ministry of Land, Infrastructure and Transport No. 2 of the Ministry of Land, Infrastructure and Transport No. 8 of the Ministry of Land, Infrastructure and Transport, and the Ministry of Land, Infrastructure and Transport No. 9 of the Ministry of Land, Infrastructure and Transport No. 2 of the Ministry of Land, Infrastructure and Transport No. 2 of the Ministry of Land, Infrastructure and Transport No. 8 of the Ministry of Land, Infrastructure and Transport No. 4 of the Ministry of Land, Infrastructure and Transport, and the Ministry of Land, Infrastructure and Transport No. 5 of the Ministry of Land, Infrastructure and Transport No. 2 of the Ministry of Land, Infrastructure and Transport No. 5 of the Ministry of Land, Infrastructure and Transport and Transport No. 2 of the Ministry of Land,

2. Both claims;

The defendant asserts that not only the land in this case 2, 3, and 4 but also the land in Serial 6 belongs to the Geum River basin and is owned by the State, and thus, it is not subject to land transaction permission. Furthermore, all of the land in this case is subject to compensation purchase to be incorporated into the Geum River Purification Project Zone, and the installation of structures is restricted by Article 45 of the River Act and it cannot be subject to building permission. Thus, the non-permission disposition in this case is lawful.

As to this, the Plaintiff did not belong to the river area, and the Plaintiff’s land use plan does not cause any danger and disaster, and according to Article 21-4(1)2 of the Act on the Utilization and Management of the National Territory, even if the purpose of use of the land falls under any of the items of Article 21-4(1)2 of the Act on the Utilization and Management of the National Territory, the land transaction contract should be permitted. Despite the Plaintiff’s purpose of use for each of the land of this case falls under items (e) and (g) of the same subparagraph, the Defendant rejected the transaction contract on each of the land of this case on the ground that the Defendant does not fall under items (c) and (d) of the same subparagraph. Thus, the non-permission disposition is unlawful, and the Geum River Purification Project Plan is not only the plan at the drafting stage, but also it is not possible to assert the legitimacy of the non-permission disposition

3. The nature of the non-permission disposition in this case

Article 21-2 of the Act on the Utilization and Management of the National Territory provides that the use of the land is a limited resource for the promotion of the welfare of all citizens, public welfare shall take precedence over the use of the land, preserving the natural environment, reasonably taking into account the regional conditions, and ensuring the balanced development of the national land by ensuring the proper use of the land. Accordingly, Article 21-2 (1) provides that the Minister of Construction and Transportation may designate a zone where speculative land transactions are likely to be character and conduct, where land prices rapidly increase or increase, as a regulatory zone for a specified period of five years, and Article 21-3 (1) provides that the contract contract for land, etc. concluded within the regulatory zone shall not take effect, but Article 21-2 (6) provides that the Minister of Construction and Transportation shall issue a permit without permission or notify the applicant of the reasons for non-permission within the specified period of five days, and the Governor shall not issue a permit or permit within the specified period of one of the following provisions of Article 21-3 (1) provides that the reasons for non-permission shall be cancelled or within the specified period of three years.

The purport and contents of these provisions are the guarantee of property rights of the people under Article 23(1) of the Constitution and the economic order of the Republic of Korea under Article 119(1) are based on the respect for freedom and creative initiative of individuals and enterprises. In consideration of the fact that the free economic system or the capitalistic system is the basis of the economic order of the Republic of Korea, and the permission system of land transaction contracts is a serious limitation on the freedom of contract, which is the basic principle of the free economic system, the basic principle of the free economic system, the permission of land, etc. is also a disposition to grant permission or non-permission to land transaction contracts, etc., the discretion of the disposition authority is excluded in relation to the requirements of disposition, especially the existence of non-permission grounds, and the discretion is limited to the determination on the existence of non-permission grounds, which is bound strictly by the purport of the law. The application for permission without any legal permission must be permitted, and the disposition of non-permission is unlawful as a disposition infringing upon the rights and interests of the people who can obtain permission unless there is any grounds for non-permission (see Supreme Court Decision 86Nu6579, Feb.

4. Whether the non-permission disposition in this case is legitimate

By examining the grounds for non-permission in order, it is to determine the legitimacy of the non-permission disposition in this case.

(1) Determination on the grounds of non-permission on the grounds that the river area belongs to a river area

First of all, we examine the argument that the land of this case is owned by the State in a river area under which part of the land is directly owned, and is not subject to permission of land transaction contracts

Article 2 (1) 2 of the River Act provides that the term "river area" refers to the area stipulated in any of the following items, and Article 2 (1) 2 of the same Act provides that the term "river area" refers to the area of land where water flows continuously and the flow of water flows continuously and the area of land where water flows continuously at least once a year, (b) the area of land which is the site of river appurtenances, (c) the area of land which is the site of river appurtenances, and (c) the area of land which needs to be managed together with the area stipulated in item (a) from among the land which is the land which is the land which is the land of river appurtenances and the area similar to the area that is excluded from the river as prescribed by Presidential Decree, and Article

Therefore, according to the evidence of evidence No. 1, No. 7, No. 15, and No. 1 of this case, the head of Busan Regional Construction and Management Office, which is the river management agency of the Nakdong River and Geum River, did not belong to the river area, but did not belong to the river area, and the land of No. 1, 5, and 6 was determined as the river area pursuant to Article 2 (1) 2 (a) of the River Act and was registered as the river area register of No. 1, No. 7 of this case, and there was no possibility that part of the land of this case belongs to the river area No. 2, No. 1, 3, and 4 of this case. According to the records No. 8 of this case's river basin, the land of this case was entered into the river area No. 1, 7 of this case's river basin and the river area No. 9 of this case's river basin No. 8 of this case's river basin.

Next, in the case of the construction of structures on each of the land of this case, there is a risk of disaster and thus, the plaintiff's assertion that the purpose of the use of each of the land of this case is inappropriate, and each of the statements in Eul evidence 1-2 and Gap evidence 14, as seen above, each of the land of this case, as seen in the above, is not believed in light of the fact that the land of this case is higher than the adjacent light line, so it does not affect the water flow of Geum River, and there is no other evidence to acknowledge it at the time of flood, and it cannot be a ground for non-permission of the land transaction contract even if it can not be a ground for limiting the building permit. Thus, the defendant's assertion on this point is also without merit.

(2) The grounds for non-permission are marked on the grounds that the act does not fall under Article 21-4(1)2(c) and (d) of the Act on the Utilization and Management of the National Territory.

Article 21-4 of the Act on the Utilization and Management of the National Territory shall not apply to cases where an application for permission for the land, etc. contract within a regulated zone falls under any of the following subparagraphs under paragraph (1) of the same Article. subparagraph 2 of the same Article provides that the purpose of the use of the land, etc. which is acquired by an applicant for land, etc. shall not fall under any of the following subparagraphs. The item (c) provides that "where a person who resides within the regulated zone intends to use the land for the purpose of agriculture, livestock industry, forestry or fishery within the controlled zone," the item (d) provides that "where the person who carries on the business which is entitled to expropriate or use the land under the Land Expropriation Act or other Acts intends to do so for the purpose of his own business," the item (e) provides that "where the person who intends to carry on the business, or who intends to carry on the business, intends to use the land for any of the permitted purposes of the above Article 2 (g) provides that the person intends to use the land for the same purpose as prescribed in the Act;

Therefore, as seen earlier, the plaintiff is a transportation company that takes exclusive charge of transporting fluort coal for a Dam Corp Co., Ltd. located and is in operation by approximately 120 companies, and sells and purchases each of the land in this case to replace the 55-3.3. Dansan-ri, Jinsan-gun, Gyeongnam-gun, Gyeongnam-do, which was used as a garage, and purchased each of the land in this case to provide it as substitute. In addition, the defendant expressed the purpose of use of each of the land in this case, as well as each of the land in this case, and the previous garage and Mamp-si also belong to the regulation zone designated and publicly announced by the Construction Notice No. 121 on September 7, 198. Thus, the plaintiff's purpose of use of each of the land in this case can be deemed to fall under item (g) of the same subparagraph, but it does not constitute the plaintiff's application for permission for use of each of the land in this case.

(3) Determination as to the allegation that the non-permission disposition of this case is legitimate since it belongs to the Geum River Purification Project Zone

In a lawsuit seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of trust in the people who are the other party to the disposition (in particular, in the case of this case, the grounds for non-permission are required to be notified in writing by the law, and the separate procedures for filing an objection against the non-permission are also the same), the disposition agency may add or change a new ground for disposition only to the extent recognized as identical with the original grounds for disposition and basic facts, and it is not allowed to assert a ground for disposition on the ground of non-existence of basic facts (see Supreme Court Decision 85Nu694 delivered on July 21, 1987). Whether an administrative disposition is legitimate shall be determined based on the grounds and circumstances at the time of the disposition, and it shall not be able to remedy the defects of the original disposition because the disposition agency did not contain any new ground after the disposition (see Supreme Court Decision 87Nu49 delivered on August 18,

Therefore, in the case of this case, the defendant's application for permission for each land transaction contract of this case for reasons of non-permission as seen above is identical to the fact that the plaintiff's application for permission does not fall under Article 21-4 (1) 2 of the Act on the Utilization and Management of National Territory. According to the whole purport of the plaintiff's written evidence No. 9-2 (examination decision) without dispute over the establishment of this case's non-permission disposition and the whole purport of oral argument, since each land of this case is subject to the compensation purchase to be incorporated into the Geum River Purification Project Zone, the defendant's assertion that it cannot be permitted to install a dental notice or its incidental facilities at the time of the time of the completion of the plaintiff's objection against the non-permission disposition, and therefore, it can not be seen that there is a separate ground for non-permission as stated in the original plan for non-permission plan or the plan for public facility No. 1 of Article 21-4 (1) 3 or 4 of the Act on the Utilization and Management of National Territory, and thus, the plan or the plan No. 4 of the above.

5. Conclusion

Ultimately, the non-permission disposition of this case should be revoked due to its illegality. Accordingly, the plaintiff's claim of this case seeking its revocation is justified, and the lawsuit costs are assessed against the defendant who has lost the lawsuit costs as per Disposition.

May 8, 1991

Judges Song Jin-hun (Presiding Judge)

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