In a lawsuit disputing the validity of an act of accepting or rejecting a proposal for designation of an implementer of an urban or Gun planning facility project or an act of designating a specific proposer as a preferential negotiating party after a more than one private park promoter receives a proposal for designation of an implementer of a park planning facility project and concluding an agreement, whether the court shall examine only whether the administrative agency’s interpretation of the criteria for examination prepared by the administrative agency to determine whether to accept a proposal for the preparation of a park building plan has exceeded and abused discretion (affirmative), and whether the administrative agency’s determination on the criteria for examination by the administrative agency is deemed unlawful based on the independent interpretation of the court (negative)

In full view of the contents and purport of Articles 16(3) and (4), 21(1), and 21-2(1) and (8) and (12) of the Act on Urban Parks, Greenbelts, Etc. (hereinafter “Urban Parks and Greenbelts Act”), that the Act on Parks and Greenbelts does not have any special provisions on the examination standards, etc. for the draft park building plan; that is, the Act on Parks and Greenbelts does not have any special provisions on the examination standards, etc. for the draft park building plan; that is, the Act on Parks and Greenbelts, etc. to create a pleasant urban environment and contribute to securing a sound and cultural urban life and promoting public welfare by creating a pleasant urban environment, an administrative agency shall be deemed a discretionary act to designate an implementer of an urban or Gun planning facility project at his/her own expense and responsibility and designate an implementer of the urban or Gun planning facility project, or designate a specific proposer as a preferential negotiating.

In addition, determination of the criteria for examination necessary to determine whether to accept proposals made by an administrative agency upon receipt of a proposal for park building plan and the designation of the priority bidder is, in principle, a matter belonging to a wide range of discretion that is entrusted to autonomous policy decisions by the mayor, the authorized administrator, etc. of a city park. Thus, barring any special circumstance, barring any special circumstance where the established criteria are objectively unreasonable or unreasonable, the administrative agency’s intent shall be respected as far as possible. The interpretation of the criteria for examination by an administrative agency that has formulated the criteria for examination shall also be respected unless there are special circumstances, such as exceeding the limit of

Therefore, without drawing an independent conclusion as to the interpretation of the relevant criteria, the court shall examine only whether the interpretation of the administrative agency’s standard has deviates from and abused discretion by lack of objective rationality, and shall not readily conclude that the judgment of the administrative agency on the basis of the independent interpretation of the court’s standard for review by the administrative agency is unlawful. Meanwhile, with respect to the deviation and abuse of discretion, the person who disputes the validity of such administrative act bears the burden of assertion and certification.

Articles 16 (3) and (4), 21 (1), 21-2 (1), (8) and (12) of the Urban Parks, Greenbelts, etc. Act

Supreme Court Decision 2017Du48956 Decided October 12, 2017 (Gong2017Ha, 2128)

Has Integrated Construction Corporation

The astronomical Market

APP Co., Ltd. (Attorneys Lee Jae-de et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2016Nu12934 decided April 6, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. A. According to the Act on Urban Parks, Greenbelts, Etc. (hereinafter “Urban Parks and Greenbelts Act”), a person, other than a Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun (hereinafter “private park promoter”) may propose that the head of a Si, etc. formulate a park building plan with respect to any urban park for which an urban or Gun management plan regarding the building of an urban park has been determined, on his/her own cost and responsibility (Article 16(3)). Furthermore, the head of a Si, etc., in receipt of a proposal for a park building plan, shall notify the proposer of whether he/she accepts the proposal within the period prescribed by Presidential Decree after consultation with the urban park committee established in the relevant local government, and if he/she intends to accept the proposal, it shall be reflected in the formulation of

In addition, as prescribed by Presidential Decree, a private park promoter may construct and manage an urban park or park facilities after designating an implementer of an urban or Gun planning facility project pursuant to Article 85(5) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and obtaining authorization of an implementation plan pursuant to Article 88(2) of the same Act (Article 21(1)). In cases where a private park promoter donates an urban park to a park management agency and satisfies certain standards, he/she may install facilities, other than park facilities, on the remaining site or underground space after donation (Article 21-2(1)), or implement incidental projects pursuant to Article 21 of the Act on Public-Private Partnerships in Infrastructure (Article 21-2(8)). In addition, when a private park promoter constructs an urban park pursuant to Article 21-2(1), he/she shall enter into an agreement with the Mayor, etc. on certain matters (Article 21-2(1)).

B. In full view of the content and purport of such relevant provisions, the fact that parks and greenbelts statutes do not have any special provision on the examination standards, etc. for proposal proposal, and the purpose of the Park Park Act to contribute to securing a healthy and cultural urban life and promoting public welfare by creating a pleasant urban environment, etc., an administrative agency’s act of receiving or refusing a proposal by setting the priority for designating and concluding an urban/Gun planning facility project implementer after receiving a proposal from multiple private park promoters to create a park at his/her own expense and responsibility, or an act of designating a specific proposer as a priority bidder shall be deemed discretionary act.

In addition, determination of the criteria for examination necessary for an administrative agency to decide whether to accept a proposal which has been drafted for a park building plan and the designation of the priority bidder accordingly belongs to a wide range of discretion to decide on autonomous policies of the market, etc. which is the person who is the authority to build and manage an urban park. Thus, barring any special circumstance where the established criteria are objectively unreasonable or unreasonable, the administrative agency’s intent shall be respected as far as possible. The interpretation of the criteria for examination by an administrative agency that has formulated the criteria for examination shall also be respected unless there are special circumstances, such as exceeding the bounds of language and text, or lacking objective

Therefore, without drawing an independent conclusion as to the interpretation of the relevant criteria, the court shall examine only whether the interpretation of the administrative agency’s standard has deviates from or abused discretion due to lack of objective rationality, and shall not readily conclude that the judgment of the administrative agency on the basis of the independent interpretation of the court’s standard for review by the administrative agency is unlawful. Meanwhile, with respect to deviation from or abuse of discretion, the person who disputes the validity of such administrative act bears the burden of assertion and certification (see, e.g., Supreme Court Decision 2017Du48956, Oct. 12, 2017).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Nowon-gu Seoul Special Metropolitan City is a Nowon-gu Special Metropolitan City Park (hereinafter “instant park”) located in the Sung-dong 160-13 Sung-dong Special Metropolitan City, which is a park under Article 2 subparag. 6(b) of the National Land Planning and Utilization Act, and is a park under Article 2 subparag. 3(a) of the Act on Parks and Greenbelts, which is determined as a park under the urban management plan around 193.

B. On May 28, 2015, the Defendant publicly announced a proposal period for a private park development project. Accordingly, the Plaintiff, a limited liability company, a MoB International Co., Ltd., and the Intervenor’s supplementary intervenor (hereinafter “ Intervenor”) submitted the proposal, respectively, and the Intervenor submitted the proposal as a joint proposer with the Korea Investment Securities Co., Ltd. (hereinafter “Korea Investment Securities”).

C. According to the evaluation items list prepared by the Defendant, the items of financing capacity are 6 points in the case of one company based on the number of participating companies that submitted a letter of intent to participate, a letter of commitment, etc., 7 points in the case of two companies, 8 points in the case of three companies, 9 points in the case of four companies, 9 points in the case of five companies, and 10 points in the case of five companies.

(d)The main contents of the Joint Project Agreement submitted by the Intervenor are:

(1) An intervenor shall provide and secure funds necessary for the implementation of a project as a joint representative proposer, and Korean investment securities as a joint representative proposer or a financial intermediary, and shall play a role in raising necessary funds and extending credit through internal deliberation.

(2) The Grand Forest Industry Co., Ltd. (hereinafter referred to as the "Large Forest Industry") and the Scco Construction (hereinafter referred to as the "Scco Construction") shall perform the obligation to complete the responsibility as an intention to participate in the construction, and shall determine whether to participate in the project in consultation with the Korean investment securities and intervenors, separate from the participation as a contractor.

(3) Asian Trust Co., Ltd. (hereinafter referred to as " Asian Trust") shall, in addition to the participation as a trust administrator, participate in the business shares in consultation with the Korea Investment Securities and Participants after internal deliberation.

E. On July 30, 2015, the Defendant’s employee evaluated the items of “fund procurement capacity” of the Intervenor and the Korea Investment Securities as seven points on the premise that the number of financial participants is two, and announced that the Plaintiff was higher than that of the Intervenor. On July 30, 2015, among the companies that submitted the proposal to the Plaintiff by wire, the Plaintiff was issued the highest points.

F. On July 31, 2015, the Intervenor stated that the Defendant should calculate the “fund procurement capacity” of the Intervenor and the Korea Investment Securities as a financial participant. The Defendant accepted this and adjusted the score of the “fund procurement capacity” of the Intervenor and the Korea Investment Securities to nine points. Accordingly, the Intervenor and the Korea Investment Securities received the highest score among the companies that submitted the proposal with 86.56 points, and the Plaintiff was aggregated with the second highest score of 86.33 points.

G. On August 4, 2015, the Defendant notified the Intervenor that the proposal was accepted by the Intervenor and the Korean Investment Securities. On the same day, the Plaintiff’s proposal was evaluated as a result of the Plaintiff’s evaluation, and the Plaintiff’s proposal was deemed as a plan to review the Plaintiff’s acceptance of the proposal where the Plaintiff’s ground for disqualification, such as procedural defects, such as the Convention on

3. As to the Intervenor’s assertion of deviation from and abuse of discretion regarding evaluation of items of financing ability on the part of the Intervenor

(a) Whether the large forest industry and the Spanco Construction are included in the intervenor's financial participating enterprise;

(1) Under the premise that an investor’s intent to invest in a financial participating company is not required to be confirmed, but should be explicitly indicated, the lower court determined that, on the sole basis that the Intervenor’s joint project agreement on the joint project, stating that “the large forest industry, sco construction, included in the participating company, shall decide whether to participate in the project under consultation with the Korean Investment Securities and the Intervenor,” cannot be deemed to have explicitly expressed the intent that the large industry and sco construction will provide funds or invest in the participant, the large industry and sco construction should be excluded from the participating company.

(2) However, we cannot agree with the judgment of the court below for the following reasons.

Examining the reasoning of the lower judgment and the following circumstances that can be recognized by the record in light of the legal principles as seen earlier, it is difficult to view that the said company’s evaluation of which the Defendant decided whether to participate in consultation with the Intervenor is included in the financial participating enterprise is beyond the reasonable scope of discretion judgment.

(1) Even if a proposing company is designated as a priority negotiation subject, the administrative agency shall not be bound by the details of the proposal, and the detailed details of the project may be changed in the future consultation process.

② Therefore, it is difficult for financial participating companies to clearly and explicitly express their intent to participate in the proposal stage in which the contents of business are not finalized. It is also stated that there is no legal binding force in terms of Plaintiff’s intent to invest in the financial investment company.

(3) As long as temporary participation in the proposal stage is possible, it is difficult to deem that there is an essential difference between participating without legal binding and determining whether to participate in future consultations.

(4) The examination of the number of financial participating enterprises at the proposal stage is focused on ascertaining that the enterprise that is likely to participate in the future project is certain.

(3) Nevertheless, the lower court determined that the Plaintiff should be excluded from a financial participating enterprise on the grounds that it cannot be deemed that the Plaintiff explicitly expressed its intent to provide funds or invest in the Intervenor. In so determining, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretion, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

(b) Whether Korean investment securities are included in a financial participating enterprise;

(1) Under the premise that a financial participating company should be a third-party company, not a proposing company, the lower court determined that the Korean Investment Securities should not be evaluated as a financial participating company since it cannot be seen as an external company as a joint proposal of the instant project with an intervenor and the instant company.

(2) However, we cannot agree with the judgment of the court below for the following reasons.

Examining the reasoning of the lower judgment and the following circumstances that can be recognized by the record in light of the legal principles as seen earlier, it is difficult to view that the Defendant’s evaluation of the investment securities as included in the financial participating company is beyond the reasonable scope of discretionary judgment.

(1) The language and text of a financial participating company shall not necessarily lead to an interpretation that it must be a third party, not a proposing company.

(2) As long as the proposing company has no condition to directly implement the project, the proposing company and the special purpose corporation established by the remaining participating companies may implement the project, it is difficult to deem that the proposing company is the proposing company or the third party has a big meaning in calculating the number of participating companies in the evaluation of the items of financing.

③ If the purpose of encouraging participation in finance by multiple companies is to encourage participation in finance, it is unnecessary to treat the proposal company more favorably than simply participating as a third party.

④ According to the joint project agreement attached to a proposal submitted by an intervenor, the Korea Investment Securities shall serve as a joint representative proposer and a financial intermediary.

(3) Nevertheless, the lower court determined that the Korea Investment Securities should be excluded from a financial participating enterprise on the ground that it cannot be deemed as a joint proposal company because it cannot be deemed as an external company. In so determining, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is

4. As to the assertion of deviation or abuse of discretionary power

A. Items related to the intervenor's financial structure status

The lower court determined that the Plaintiff did not err in granting the relevant item as six points to the intervenors on the ground that it is difficult to view that the proposing company that proposed the instant project as materials for evaluating the capacity to implement the proposing company’s project, including financial statements, should sufficiently anticipate the submission of objective evidence, and that it is difficult to view that the Defendant’s evaluation of the instant project proposal should reflect the materials disclosed to the Financial Supervisory Service, such as the electronic disclosure system, in addition to the materials submitted by the proposing company, etc. in assessing the project proposal of this case.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretion, contrary to what is alleged in the grounds of appeal.

B. Items to verify the feasibility of data on appraisal of revenues of non-park facilities on the Plaintiff’s side, and relevant items to determine the purchase cost of land

In full view of the circumstances as indicated in its reasoning recognized by the adopted evidence, the lower court determined that it was justifiable for the Defendant to award points to the Plaintiff on the premise that the assessment of revenues and the calculation of purchase costs of non-park facilities among the Plaintiff’s proposal was verified.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretion, contrary to what is alleged in the grounds of appeal.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)