The case holding that there is no benefit in litigation in case where Party A sought revocation of a return of a modified draft plan, on the grounds that Party A’s disposition seeking revocation of a return of a modified draft plan, on the ground that Party A’s disposition seeking revocation of a return of a modified draft plan is not a case where Party A’s disposition seeking revocation of a return of a draft plan, on the grounds that Party A’s disposition seeking revocation of a return of a modified draft plan is not a benefit in litigation.

In a case where Party A returned to the competent mayor of defects a proposal to revise a park building plan to allow the installation of a golf range on the land owned by wife and children (hereinafter referred to as “project site”) located in a park site, which is an urban planning facility under the former Urban Park Act (wholly amended by Act No. 7476, Mar. 31, 2005); and thereafter, according to a modified urban management plan for modification, the determination of urban planning facilities that all parks have been abolished, and sought revocation of the rejection of a modified urban park plan, the case holding that Party A’s proposal was no longer a park that is an urban park facility subject to a park building plan, and the park building plan was abolished and no longer exists, and thus, seeking revocation of a return plan for modification has no interest in filing a lawsuit seeking modification of a park building plan.

Article 4(1) and (5) (see current Article 16(1) and (2) of the former Urban Parks Act (wholly amended by Act No. 7476, Mar. 31, 2005); Article 2 subparag. 3, 16(1), and 16-2(1) and (2) of the former Urban Parks, Greenbelts, etc. Act (wholly amended by Act No. 11581, Apr. 14, 201); Article 7(2) of the former Urban Parks, Greenbelts, etc. Act (wholly amended by Act No. 11581, Dec. 18, 201); Article 7(2) of the former Urban Parks, Greenbelts, etc. Act (wholly amended by Act No. 11581, Mar. 31, 2005); Article 38-2 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 2011)

Plaintiff (Attorney Lee Han-hee et al., Counsel for the plaintiff-appellant)

Daegu Metropolitan City Mayor (Law Firm Sejong, Attorneys Lee Gyeong-hee et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2012Nu2635 decided June 14, 2013

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

ex officio, the determination of the lawfulness of the instant lawsuit is made.

1. According to the reasoning of the lower judgment and the record, the Minister of Construction and Transportation, at the time of February 2, 1965, determined and publicly announced an urban planning of 20, Daegu-dong, Daegu-dong, which is an urban planning facility (title 1387) pursuant to the former Urban Planning Act (amended by Act No. 655, Feb. 4, 2002); 2. On February 10, 2004, the said 2. The instant land was modified to 10, 30,000 square meters and 2. The instant land was modified to 30,000 square meters and 14,000,000,000,000,000 2,000,000,000 five square meters and 2,00,000,000,000,000,000,000,01,000,00.

2. However, Article 4(1) of the former Act provides that when an urban park management plan is determined under Article 4(1), a Metropolitan City Mayor, etc. having jurisdiction over the administrative district where the relevant urban park is located shall formulate a creation plan for the relevant urban park; while Article 4(5) of the same Act provides that where a creation plan is determined or a creation plan is to be determined, a creation plan for the relevant urban park shall be determined by the urban management plan. Article 16(1) of the former Act provides that when an urban management plan concerning the construction of the relevant urban park is determined under Article 16(1), a Metropolitan City Mayor, etc. having jurisdiction over the administrative district where the relevant urban park is located shall formulate a creation plan for the relevant urban park; while Article 16-2(1) and (2) of the former Act provides that a creation plan for the former Act and a park building plan for the parks and greenbelts Act are not different in terms of the legal nature, formulation and determination methods, and subject matter of regulation before and after the establishment of a park development plan under Article 30 of the former Act.

Meanwhile, Article 38-2 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”) provides that, under Article 38-2 of the same Act, the designation or alteration of an urban natural park area may be determined by an urban natural park planning plan if a Metropolitan City Mayor, etc. deems it necessary to restrict the development of a mountainous district with excellent vegetation in order to protect the natural environment and scenery of the city and to provide sound leisure and resting space for urban citizens, and to protect urban citizens, the designation or alteration of an urban natural park area may be determined by an urban natural park plan. Accordingly, Article 2 Subparag. 3 of the former Act provides that matters necessary for the designation or alteration of an urban natural park area shall be separately prescribed by an Act. Accordingly, with respect to an urban natural park area determined by an urban management plan pursuant to Article 38-2 of the National Land Planning and Utilization Act, Article 16 and Article 16-2 of the former Act on the formulation, determination, etc. of a park building plan shall not apply.

3. Examining the aforementioned factual relations in light of the structure and content of each of the above statutes, it is reasonable to view that the determination of urban planning facilities as to the whole park site including the instant proposal site was abolished by the instant modified determination made on October 20, 201, prior to the Plaintiff’s filing of the instant lawsuit, and at the same time, the instant proposal site was designated as an urban natural park zone, and thus, the instant proposal site became no longer an urban planning facility subject to the park building plan, and accordingly, the instant park building plan as to the instant proposal site was abolished and nonexistent.

(1) Therefore, the lawsuit of this case is nothing more than disputing the illegality of the disposition rejecting the drafting proposal of this case seeking the alteration of the park building plan of this case, which does not exist, and thus, there is no interest in the lawsuit. (2) In addition, as long as the park building plan of this case is abolished, even if the plaintiff was rendered a final judgment revoking the disposition of this case, it is reasonable to deem that there is no legal interest in maintaining the lawsuit of this case to the plaintiff.

Nevertheless, the court below deliberated and judged on the merits under a false premise that there is a benefit in the lawsuit of this case. Thus, the court below erred by misapprehending the legal principles on the benefit in the lawsuit, which affected the conclusion of the judgment.

4. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the grounds of appeal. Since this case is sufficient for the Supreme Court to directly render a judgment, the judgment of the court of first instance, which judged on the merits as well as the judgment of the court of first instance, is obvious to be unlawful, and thus, the lawsuit of this case is dismissed. The total costs of the lawsuit are borne by

Justices Kim Chang-suk (Presiding Justice)