In a case where the Korea Rehabilitation Agency, a public institution under the jurisdiction of the Ministry of Justice supporting rehabilitation recipients, including prisoners, applied for a building permit of educational and research facilities to provide support for persons eligible for protection, but the competent mayor rejected the above application in accordance with the result of deliberation by the Urban Planning Commission, the case holding that the above disposition should be revoked on the ground that there was an error of deviation from and abuse of discretionary authority in violation of the principle of proportionality, since the disadvantage to be suffered by the Korea Rehabilitation Agency is much more than

The Korea Rehabilitation Agency, which is a public institution affiliated with the Ministry of Justice supporting rehabilitation recipients, including prisoners, applied for a building permit of educational and research facilities to provide support for persons eligible for protection, but the competent Mayor has rejected the above application according to the results of deliberation by the Urban Planning Commission.

In light of the fact that there is no need to undergo deliberation by the Urban Planning Committee on an application for the above building permit, but it cannot be deemed to be the purpose of prohibiting deliberation by the Urban Planning Committee on the development activities that do not fall under the provisions stipulated by the National Land Planning and Utilization Act and the Enforcement Decree of the same Act, there is no procedural error in the above disposition prior to deliberation by the Urban Planning Committee. However, it is difficult to conclude that the existence of the above building could lead to congested traffic or parking space in the village, but it is difficult to conclude that the existence of the above building is difficult to hold a briefing session, and neighboring residents oppose the above building on the ground that it is a "educational facility for the protection of confinement facilities" as the "facilities for confinement facilities," but the resident briefing session is not a procedure required by Acts and subordinate statutes, and there is no evidence to know that the opposition itself does not have any specific harm to neighboring residents or the surrounding environment by the construction of the above facilities, and therefore, it is more likely that the above disposition would have been suffered by the Korea Urban Welfare Corporation than the public interest to be achieved.

Article 11 of the Building Act, Articles 56(1) and 59(1) of the National Land Planning and Utilization Act, Article 57(1) of the Enforcement Decree of the National Land Planning and Utilization Act, Article 27 of the Administrative Litigation Act

Korea Rehabilitation Corporation (Attorney Choi Jong-ho, Counsel for the defendant-appellant)

Gwangju Market

April 3, 2018

1. On July 4, 2017, the Defendant’s disposition of accepting applications for building permission against the Plaintiff on July 4, 2017 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The text of paragraph (1) is as follows.

1. Details of the disposition;

A. The Plaintiff is a public institution affiliated with the Ministry of Justice that supports rehabilitation of rehabilitation recipients, including those released from prison.

B. The Plaintiff intended to establish a branch office of the Gyeonggi-do Dong-dong branch in order to carry out the business of supporting persons eligible for protection. On November 29, 2016, the Plaintiff purchased, as its site, the land of Gwangju Metropolitan City, Dayang-ro 418-1 large scale 698 square meters (hereinafter “instant land”).

C. On December 30, 2016, the Plaintiff filed an application with the Defendant for permission for the construction of three stories on the instant land, the building area of 277.95 square meters, and one unit of educational and research facilities of 696.45 square meters on the instant land (hereinafter “instant building”) (hereinafter “instant application”).

D. The Defendant had the Urban Planning Committee deliberate on the instant application. On March 9, 2017, the Urban Planning Committee demanded the submission of a plan for the installation of convenience facilities for facility users and landscaping green zone with the consent of neighboring residents by means of resident briefing sessions, etc. on the detailed project plan.

E. On July 4, 2017, the Urban Planning Committee rejected the Plaintiff’s briefing session to the effect that “The instant land is located on the side of the entrance of the access road to the village, affecting the residential environment of village residents entering the entrance and exit due to the relevant road, and the size of the site is narrow on the site that consists of shielding green areas for preventing civil petitions, resting areas, parking lots, etc., and thus, it is inappropriate to be located as educational and research facilities.”

F. On July 4, 2017, the Defendant rendered a disposition rejecting the instant application (hereinafter “instant disposition”) on the ground that deliberation was rejected due to the same reason as the above deliberation result by the urban planning committee under Article 59 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and Article 57 of the Enforcement Decree of the same Act.

G. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Gyeonggi-do Administrative Appeals Commission under the Gyeonggi-do Administrative Appeals Commission as 2017 Gyeonggi-do Administrative Appeals Commission, and the said commission dismissed the Plaintiff’s claim on December 18, 2017.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to 5, Eul evidence 1, the purport of the whole pleadings

2. Determination

A. The parties' assertion

1) The plaintiff's assertion

The application of this case is about the construction of a building without changing the form of land on the ground within a planned control area, not where deliberation by the urban planning committee under the National Land Planning and Utilization Act is required, but it cannot be deemed that there is a need for a significant public interest to deny the application of this case. Thus,

2) The defendant's assertion

The instant application constitutes subject to deliberation by the urban planning committee, even if it does not involve any change in the form and quality of land in the construction process, and does not fall under any of the items of Article 57 (1) 1-2 (c) of the Enforcement Decree of the National Land Planning Act, and thus, constitutes subject to deliberation by the urban planning committee, and the result of deliberation by the urban planning committee was rejected. According to the Enforcement Decree of the National Land Planning Act (Attachment 1-2), the details concerning shielding green areas and resting spaces are the details of deliberation by the urban planning committee, and the relationship with surrounding areas at the time of development activities are comprehensively examined, the instant disposition that rejected the instant application

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Determination as to whether deliberation by the urban planning committee is necessary

To obtain permission for development activities on certain acts among the acts falling under the construction of buildings, installation of structures, alteration of the form and quality of land, and collection of soil and rocks among the development activities (Articles 56(1)1 through 3, and 59(1) of the National Land Planning and Utilization Act). Each subparagraph of Article 57(1) of the Enforcement Decree of the National Land Planning Act provides for such acts as “where the form and quality of land for the construction of a building or the installation of a structure is above a certain size (Article 1)” (Article 57(1) of the Enforcement Decree of the National Land Planning and Utilization Act, “where the form and quality of land for the construction of a building or the installation of a structure in a control area, etc. is above a certain size” (Article 1-2), “where

However, the instant application is for the construction of a building, and there is no evidence to deem that a separate form and quality alteration is necessary for the construction of a building as a site, and thus, it cannot be deemed that deliberation by the National Land Planning Committee under the National Land Planning Act is necessary to obtain permission

Therefore, although the application in this case is not necessarily required to undergo deliberation by the urban planning committee, it cannot be deemed to the purport to prohibit deliberation by the urban planning committee on development activities that do not fall under the provisions that stipulate certain development activities to be deliberated by the urban planning committee under the National Land Planning Act and the Enforcement Decree thereof, and according to Article 113(2)4 of the National Land Planning Act and Article 110(2)3 of the Enforcement Decree of the National Land Planning Act, it cannot be deemed that the defendant has procedural errors in going through deliberation by the urban planning committee prior to making the disposition in this case.

2) Determination as to whether discretionary power has been exceeded or abused

A) Relevant legal principles

Article 56(1)1 of the National Land Planning and Utilization Act provides that a person who intends to engage in development activities shall obtain permission for development activities from an administrative agency. Thus, a person who intends to obtain a building permit shall obtain permission for development activities at the same time as a building permit under the Building Act. However, as Article 58(1) of the National Land Planning and Utilization Act and Article 56(1) [Attachment Table 1-2] of the Enforcement Decree of the same Act provide for the standards for permission for development activities by using various indefinite concepts, permission for development activities is a discretionary act. According to Article 11(5)3 of the Building Act, permission for development activities is deemed a legal fiction of permission for development activities under Article 56 of the National Land Planning and Utilization Act, and ultimately, permission for development activities is deemed a discretionary act (see Supreme Court Decision 2009Du19960, Feb. 25, 2010).

However, even if an administrative disposition is a discretionary act, where the act was conducted based on misunderstanding of facts, etc. or in violation of the principle of proportionality or the principle of equality, etc., it is illegal that the discretionary authority was abused or abused (see Supreme Court Decision 2007Du18215, Dec. 11, 2008, etc.).

B) Determination

In light of the following circumstances acknowledged by comprehensively taking account of the overall purport of pleadings as to the descriptions or videos stated in Gap evidence 6 through 9, 14 (including paper numbers), and Eul evidence 3, the instant disposition is far more unfavorable than the public interest to be achieved thereby, so there is an error of deviation from and abuse of discretion in violation of the principle of proportionality. Accordingly, the instant disposition must be revoked.

① In light of the fact that at least 11 employees are expected to stay in and work for the instant building, and that at least 1,000 persons annually are expected to visit the instant building, and other road conditions in neighboring areas, it is difficult to readily conclude that the existence of the instant building could lead to congested traffic or parking spaces in the village.

② The Plaintiff has an agency for the same use as the instant building across the country and among them, there are many cases where the Plaintiff is located in a residential area, and there is no case reported that there was any damage to the residents.

③ The Plaintiff design the construction of a parking lot in a larger area than the parking space required by the law. Unlike the requirements prescribed by the law, there seems no specific circumstance to deem that additional facilities, such as shielding green areas, resting spaces, and parking lots, are needed.

④ The facts that the Urban Planning Commission did not hold a briefing session for the Plaintiff are as seen earlier, and neighboring residents oppose the instant building to enter the village on the ground that the instant building is an “educational facility for the protection of confinement facilities” as an “facilities for the protection of confinement facilities.” However, the resident briefing session is not a procedure required by any statute, but cannot be a legitimate basis in determining whether the opposition of neighboring residents is a building permit (see Supreme Court Decision 2000Du9762, Jul. 26, 2002, etc.). There is no evidence to find out which the construction of the said facilities may cause specific harm to neighboring residents or the surrounding environment.

3. Conclusion

If so, the plaintiff's claim shall be accepted with due cause, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Man Certificate (Presiding Judge)