[1] In a case where a basic plan for the development of an apartment zone is publicly announced under Article 20 (2) of the former Housing Construction Promotion Act, whether a decision on urban planning to install a park, which is an urban planning facility under the Urban Planning Act, for a park in an apartment zone included in the content

[2] Whether a decision to revise an urban planning can be made to retain a site for park facilities in an apartment zone as a site for park facilities while releasing it from the apartment zone (affirmative)

[1] According to Article 22(1) of the former Housing Construction Promotion Act (amended by Act No. 5116 of Dec. 29, 1995), Article 5(7) of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995), in a case where a basic plan for development of an apartment zone is publicly announced pursuant to Article 20(2) of the former Housing Construction Promotion Act, matters to be determined by an urban planning under the Urban Planning Act among the publicly announced contents shall be deemed to have been determined by an urban planning decision under the Urban Planning Act. Since a park in an urban planning zone can be constructed only by an urban planning under Article 2(1)1(b), 3, or 16 of the Urban Planning Act, if the basic plan for development of an apartment zone is publicly announced, with respect to a park in an apartment zone included in the publicly notified contents, it shall be deemed that there was a decision of urban planning to install an urban planning facility, which

[2] Construction and alteration of park facilities under Article 2 (1) 1 (b) and 3 of the Urban Planning Act and designation and alteration of apartment zone under Article 18 (2) of the same Act and Article 16 subparagraph 2 of the Enforcement Decree of the same Act are all the urban planning determination and alteration under Article 12 of the same Act, so it is also possible to decide to revise urban planning that maintain park facilities in apartment zone as site for park facilities while cancelling designation from apartment zone, and such decision to revise urban planning alone cannot be deemed unlawful.

[1] Articles 20(2) and 22(1) of the former Housing Construction Promotion Act (amended by Act No. 5116 of Dec. 29, 195); Article 5(7) of the former Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 1995); Article 2(1)1(b) and 3, and Article 16 of the Urban Planning Act / [2] Article 2(1)1(b) and 3, and Article 16 of the Urban Planning Act; Article 16 subparag. 2 of the Enforcement Decree of the Urban Planning Act

Plaintiff (Attorney Lee Jae-il et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City Mayor (Attorney Park Young-ok, Counsel for the plaintiff-appellant)

Busan High Court Decision 96Gu966 delivered on September 9, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal (for supplemental appellate brief, to the extent of supplement in case of supplemental appellate brief) are classified as follows for convenience:

1. As to the validity of the master plan for the development of the village apartment zone of this case

According to Article 22(1) of the former Housing Construction Promotion Act (amended by Act No. 5116, Dec. 29, 1995; hereinafter the same), and Article 5(7) of the former Urban Redevelopment Act (amended by Act No. 5116, Dec. 29, 1995; hereinafter the same), in a case where a notice of the basic plan for development of an apartment zone is given under Article 20(2) of the former Housing Construction Promotion Act, matters to be determined by the urban planning under the Urban Planning Act, among the contents of the notice, shall be deemed to have been determined by an urban planning decision under the Urban Planning Act. Since a park in an urban planning zone may be constructed only by urban planning under Article 2(1)1(b) and 3, and Article 16 of the Urban Planning Act, if the basic plan for development of the apartment zone is publicly notified, with respect to a park in the apartment zone included in the contents of the notice, it shall be deemed that there was an urban planning decision to install

According to the reasoning of the lower judgment, the lower court, based on the evidence of Si, determined on December 26, 1978, as the construction section 419, which was 258,720 square meters of a lot, including 17,67 square meters of the instant land owned by the Plaintiff, as an euthan apartment zone. The lower court publicly notified the determination of urban planning by the Busan Metropolitan City public notification No. 1868, Jan. 13, 1979, and publicly notified the cadastral approval in accordance with the above urban planning decision. The lower court, on April 7, 1982, which was 70, the Busan Metropolitan City public notification No. 70, which was 225,578 square meters of the remaining land within the said euthan apartment zone, was 26,578 square meters of a neighboring apartment zone under the Housing Construction Promotion Act, and there were no errors in the construction of urban planning facilities under the former Housing Construction Promotion Act, which were 8,805 square meters of a neighboring apartment zone among the above land.

Meanwhile, in the process of fact-finding by the court below, the part that "the defendant designated the original place incorporated into a park as a site for park facilities on December 26, 1978 and then ....." (the 6th part of the court below) is identical to the theory of lawsuit. However, on December 26, 1978, the above part appears to be a clerical error on April 7, 1982 (this point is obvious according to the first clause of Paragraph (1) (a) of the court below's judgment), and there is no reason for all arguments on the above part under the premise that the above part is a mistake of fact.

2. As to the content and invalidity of the first disposition in this case

Construction and alteration of park facilities under Article 2 (1) 1 (b) and 3 of the Urban Planning Act and designation and alteration of apartment zone under Article 18 (2) of the Urban Planning Act and Article 16 subparagraph 2 of the Enforcement Decree of the same Act are all determined or modified under Article 12 of the Urban Planning Act. Thus, it is possible to decide to change urban planning to preserve park facilities in apartment zone as site for park facilities when cancelling designation from apartment zone, and such decision to change urban planning alone cannot be deemed unlawful.

Based on the evidence of Si, the lower court: (a) excluded the area of the apartment zone from 3,60 square meters of the previous 25,114 square meters; (b) reduced the remaining area of the apartment zone to 26,00 square meters of the previous 60 square meters; and (c) excluded the area of the apartment zone from 10,00 square meters of the previous 225,114 square meters and 125,14 square meters of the remaining area of the apartment zone from 15,169 square meters; and (d) excluded the area of the remaining 16,00 square meters of the previous 16,000 square meters from the previous 16,000 square meters of the previous 16,000 square meters of the previous 16,000 square meters of the previous 36,000 square meters of the previous 36,000 square meters of the previous 36,000 square meters of the previous 36,000 square meters of the previous 16.

3. Whether the first disposition of this case goes against the second disposition of this case and is abolished

Furthermore, the court below acknowledged the fact that the decision to revise the master plan for the development of the apartment zone (hereinafter the instant second disposition to revise the master plan for the development of the apartment zone) was publicly announced on May 8, 1996, as the area of the apartment zone was reduced to 141,256 square meters due to the cancellation of a part of the land including the site for the first neighborhood park facilities in the apartment zone, including the site for the first neighborhood park facilities, in accordance with the determination on the alteration of urban planning under the foregoing paragraph (2) and the area of the apartment zone was reduced to 26,578 square meters from 26,578 square meters (the total area of the apartment zone was increased to 8,629 square meters under the existing master plan for the development of the apartment zone).

Therefore, based on Articles 12 and 13 of the Urban Planning Act, Article 18(2) of the same Act and Article 16 subparag. 2 of the Enforcement Decree of the same Act shall be reduced, but the remaining park among the land excluded from this case is still left as a neighboring park site. Article 20(2) of the Housing Construction Promotion Act and Article 23(3) of the Enforcement Decree of the same Act are determined to revise the basic plan for the development of the apartment zone with respect to the reduced apartment zone pursuant to the above urban planning modification, and Article 20(2) of the Housing Construction Promotion Act and Article 23(3) of the Enforcement Decree of the same Act. Since the Disposition No. 2 of this case is limited to the part remaining as an apartment zone after the Disposition No. 1 of this case and the Disposition No. 2 of this case are made only after the Disposition No. 1 of this case and the Disposition No. 1 of this case are mutually contradictory, and the part of the 1000 green park excluded from the Disposition No. 1 of this case cannot be considered as the Disposition No. 2 of this case.

In addition, the No. 4-3, as the amendment proposal for the basic plan for the development of the Ansan Apartment Zone as of May 3, 1996, which was asserted by the theory of lawsuit, was the amendment proposal for the basic plan for the development of the apartment zone as to the remaining part of the apartment zone after the land of this case was already excluded from the apartment zone as of March 13, 1996. Thus, the land utilization plan attached thereto cannot serve as the ground for the cancellation of the remaining land incorporated into the park of this case from the site of park.

In addition, even if the purport of the preliminary claim seeking confirmation of the validity of the disposition No. 2 in this case is deemed to be "the remaining park acquisition price of this case designated as the No. 1 in the Disposition No. 1 in this case was excluded from the neighboring park site by the Disposition No. 2 in this case", it is obvious that the above ground is groundless. Thus, the court below did not request the preliminary claim to the above purport and it did not err in the incomplete hearing in rejecting the lawsuit. All arguments are without merit.

4. Therefore, the appeal is dismissed and all 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 Lee Jae-soo (Presiding Justice)