(영문) 대구고등법원 2017.4.21. 선고 2016누6017 판결

The judgment of the first instance is revoked. It is confirmed that the Defendant’s failure to apply to the Daegu Metropolitan City Mayor for a change in the content of the improvement zone, which excludes the site from the development plan, such as a change in the content of the improvement zone, such as a change in the 89-1 forest and fields of origin 839m, Daegu North-gu, Daegu-dong, located within a district 1-3 construction district development master plan for the Gandong apartment zone.

Reasons

1. Case history

A. The Plaintiff is the owner of a plan for the development of the Ganun apartment district (hereinafter referred to as the “instant development plan”) in Zone 1 in Zone 1-3 (hereinafter referred to as the “instant development plan”) of the 89-1 forest land in Seo-gu, Daegu-gu, Daegu-gu, which is located within Zone 1-3 (hereinafter referred to as the “Seoul-gu development plan”), of a square plan of 89-3 large 326 meters (hereinafter referred to as the

B. The instant development plan was established in accordance with the provisions of July 20, 1979 and Article 20 of the former Housing Construction Promotion Act (wholly amended by Act No. 6916, Apr. 13, 2002). It was approved and announced as of April 13, 2002, and was maintained to the extent that some contents were modified thereafter.

C. On February 3, 2016, the Plaintiff filed a petition with the Defendant for designation of modification of the content of the rearrangement zone (hereinafter referred to as “instant application”), which states that each of the instant land should be excluded from the instant development plan, but filed the instant lawsuit seeking confirmation that the Defendant’s omission was illegal on April 25, 2016.

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 7, and Eul No. 8 (including virtual numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Relevant legal principles

A lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system aimed at removing a passive state of omission or non-compliance with an administrative agency's response promptly by ascertaining that the omission is illegal if the administrative agency fails to comply with a legal obligation to respond, such as accepting, rejecting, or rejecting an application based on a party's legal or sound right within a reasonable period of time. Such a lawsuit can be instituted only by a person who has filed an application for a disposition and has a legal interest in seeking confirmation of illegality of omission. Thus, in cases where a party does not have a legal or sound right to request an administrative agency to take any administrative disposition, or there is no legal interest in seeking confirmation of illegality of omission, it cannot be deemed that there is an illegal omission subject to an appeal litigation, or there is no standing to sue, and thus, the lawsuit for confirmation of illegality of omission is unlawful (see, e.g., Supreme Court Decision 9Du11455, Feb. 25, 200).

B. Determination

1) Article 5 (3) of the Addenda (Article 6852, December 30, 202) to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Areas and Dwelling Conditions for Residents") provides that "the basic plan for the development of an apartment district established under Article 20 of the Housing Construction Promotion Act shall be deemed an improvement zone designated under Article 4 of this Rule." Article 4 (1) of the Urban Improvement Act provides that "the head of an autonomous Gu or the head of a Gun of a Metropolitan City (hereafter referred to as the "head of a Gu, etc." in this Article, Articles 4-3 and 4-4) shall establish an improvement plan for an area meeting the requirements prescribed by Presidential Decree, such as the concentration of old and inferior livestock products, etc. within the scope consistent with the basic plan and provide it to residents for presentation, and shall present his/her opinion within 60 days from the notification date of the improvement plan to the head of a Si/Gun/Gu, and the following provisions shall be prescribed in Article 4 of the Special Self-Governing City Mayor Act:

1. Where the rearrangement plan has not been formulated despite the lapse of at least one year (in cases prescribed by municipal ordinance of a City/Do, referring to training thereof) after the date when the rearrangement plan was formulated under Article 3 (1) 9; 2. Where the owner of a plot of land, etc. intends to request the Housing Corporation, etc. to a project implementer under Article 8 (4); 3. Where the owner of a plot of land, etc. intends to supply commercial rental housing through a rearrangement project or entrust a housing rental management business entity with the purpose of leasing housing; 4. Where he/she intends to request the formulation of an improvement plan including the items of paragraph (1) 7-2;

2) According to the relevant provisions of the Urban Improvement Act, the right to propose the formulation of a rearrangement plan is recognized to the owners of land, etc. in certain cases. However, in the case of the instant application, the Plaintiff cannot be deemed to have the right to request the formulation of the instant development plan, such as modification of the details of the designation of the rearrangement zone, since it does not fall under any of the subparagraphs of Article 4(4) of the Urban Improvement Act that recognizes the right to propose the formulation of a rearrangement plan, and there is no other ground to recognize that the right

3) Even if the Plaintiff has the right to request the formulation of the instant development plan, such as the modification of the content of the designation of the rearrangement zone, based on the following circumstances revealed by adding the entire purport of pleadings to the relevant provisions and the written evidence Nos. 7-1, 2, 9, and 11 through 14, it cannot be said that there is an illegal omission subject to an appeal litigation.

(1) Article 13-2 (1) of the Enforcement Decree of the Act on the Improvement of Urban Areas provides that "when proposing the formulation of a rearrangement plan to the head of a Si/Gun pursuant to Article 4 (4) of the Act, he/she shall submit a proposal to the head of a Si/Gun along with the rearrangement plan documents, specifications of the plan and other necessary documents after obtaining consent from the owners of land, etc., as prescribed by ordinance of a City/Do." Paragraph (2) provides that "the head of a Si/Gun shall notify the proposer of whether the proposal under paragraph (1) is reflected in the rearrangement plan within 60 days from the date of proposal: Provided, That in extenuating circumstances, 30 days may be extended only once, if the proposal of this case is made." On March 4, 2016, the development plan of this case can be determined by the residents' request for the modification of the old Housing Improvement Zone and the 30th anniversary of the Urban Planning Committee's request for the modification of the Urban Planning Plan to be reflected in the 30th anniversary of the Urban Planning Committee.

② The Daegu Metropolitan City ordered the establishment of the 2030 Daegu Basic Urban Planning, which is the upper-level plan of the instant development plan. On February 24, 2017, the 2025 Daegu Urban Management Plan, which includes the amendment, etc. of the instant development plan, entered into a contract on the maintenance services of the 2025 Daegu Urban Management Plan. As of the date of closing argument in the instant development plan, services

③ Since the Defendant’s application for modified designation of the Defendant’s improvement plan under Article 4(1) of the Urban Improvement Act should be made within the scope consistent with the basic plan formulated by the Daegu Metropolitan City Mayor, the Defendant did not make an application for modified designation of a specific improvement zone that conforms to the Plaintiff’s request after the Defendant’s response to the instant application on March 4, 2016, to the Daegu Metropolitan City Mayor, which is the authority designating improvement zones, and did not comply with the obligation to respond to the instant application after

4) Therefore, the instant lawsuit cannot be deemed unlawful because it does not have standing to sue, or there is an illegal omission that is the subject of the appeal lawsuit.

3. Conclusion

Therefore, the lawsuit of this case is dismissed as it is unlawful, and the judgment of the court of first instance is justified as the conclusion is consistent with this, so the plaintiff's appeal is dismissed. It is so decided as per Disposition.