The meaning of the administrative plan and the limit of the freedom to form when the administrative body establishes and determines a specific administrative plan.

Article 27 of the Administrative Litigation Act

Supreme Court Decision 2012Du2467 Decided July 10, 2014

Plaintiff (Law Firm Woo, Attorneys Lee Ho-ju et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Yang Hun-Ga, Attorneys Lee Han-soo et al., Counsel for defendant-appellant

Seoul High Court Decision 2014Nu69251 decided September 15, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The lower court acknowledged the fact that, on January 16, 1968, the land of Geumcheon-gu Seoul Metropolitan Government, including the instant land, was determined and publicly announced as the “Gwanaksan Urban Natural Park,” which is an urban planning facility, and the Plaintiff, on April 10, 1985, obtained permission from the Defendant for an urban planning project (construction of park facilities) to install and operate the tennis on the instant land on January 20, 1986, and completed the tennis. The Plaintiff’s proposal for drafting the instant land was operated from around that time to August 7, 2011, and the Defendant rejected the instant disposition on the grounds that it is necessary to maintain the instant land as a park in order to protect the urban environment and natural landscape on March 27, 2014.

Based on the above facts, the lower court determined that: (a) the land of this case was determined as an urban planning facility (park) around 1968 and the park building plan was not constructed as a park; (b) the Plaintiff operated the tennis on the land of this case from January 20, 1986 to August 7, 201 with the permission for the urban planning project; (c) the Plaintiff was neglected to use the land of this case for any purpose without using it for the purpose; and (d) the land of this case was not likely to be used for another site of the urban natural park (the land of this case was located within approximately 1 km from the land of this case; (e) the land of this case was not likely to be used for the land of this case for the purpose of the urban park planning facility of this case; and (e) the land of this case was not located for the purpose of the urban park planning facility of this case, which was located within the boundary of approximately 1 km and its neighboring residents; and (e) the land of this case was likely to be used for the urban park of this case.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. An administrative plan refers to an activity criteria established to realize a certain order at a certain point in the future by integrating and coordinating relevant administrative means based on a professional and technical judgment regarding administration to achieve a specific administrative objective. An administrative agency has relatively broad freedom of formation in formulating and determining a specific administrative plan. However, an administrative agency’s freedom of formation cannot be deemed unlimited; however, there is a limitation that the interests of the parties concerned should be fairly compared and compared not only between the public interest and private interest, but also between the public interest and private interest. Thus, in the event that an administrative agency’s formulation and determination of an administrative plan did not perform the profit balancing at all, or omitted matters to be included in those subject to consideration of the profit balancing, or where there is a lack of legitimacy and objectivity, such administrative plan’s decision may be deemed unlawful as it is defective in the profit balancing (see, e.g., Supreme Court Decision 2012Du2467, Jul. 10, 2014).

B. However, according to the facts acknowledged by the court below, considering that ① the Plaintiff had already been designated as an urban natural park facility (park) at the time of acquiring the ownership of the instant land, the Plaintiff acquired ownership with the knowledge of the fact that the exercise of ownership would be limited to the extent, ② as the Plaintiff was established and operated in the instant land by not later than 2011 in accordance with the implementation plan established and authorized by himself, the period during which the instant land was not used for the purpose stipulated in the said plan is limited to 2 years and 7 months before the instant disposition, and even if considering that the Plaintiff’s operation of the tennis was inevitable choice due to the fact that the instant land was included in the site of an urban natural park, it is difficult to view that the Plaintiff had been remarkably restricted from exercising the right of property for a long time, ③ as to the instant land for which the Defendant had already installed and operated the park facility, the Defendant did not prepare a new plan to install the tennis or to develop a new plan to use the park directly or through another project implementer, and ④ it is not necessary for the public interest of the Defendant to use of the instant land.

Therefore, solely on the circumstances cited by the court below, it is difficult to view that the land in this case has become necessary for the public interest to maintain it as an urban natural park, or that it has excessively restricted the Plaintiff’s exercise of property rights in light of the degree of necessity for such public interest. Therefore, it cannot be readily concluded that there was an error of law by failing to pay a balance of interest at all or omitting matters to be considered in the disposition in this case, or by

C. Nevertheless, the lower court determined otherwise on the grounds stated in its reasoning, and thus, it erred by misapprehending the legal doctrine on comparative balancing and balancing public and private interests in the administrative plan, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)