Where the head of the Gu rejected an application for a building permit for a facility project to establish a medical welfare facility for the green area within the Gyeyang Special Research and Development Zone on the ground that the development project not in compliance with the procedures of the former Special Act on the Promotion of the Taeduk Special Research and Development Zone, etc. is inappropriate, the case holding that the applicant’s application for building permit violates the procedures and methods for the special zone development project prescribed in the above Act, and thus the disposition rejecting the application for

Articles 6, 26, and 27 of the former Special Act on the Promotion of Seoul Special Research and Development Zone, etc. (Amended by Act No. 9401, Jan. 30, 2009); Article 7 of the Enforcement Decree of the Special Act on the Promotion of Taeduk Special Research and Development Zone, etc.; Article 11 of the Building Act

[Defendant-Appellant] Korea Social Welfare Corporation (Attorney Park Ho-ho, Counsel for defendant-appellant)

The head of Si/Gun/Gu in Daejeon Metropolitan City

Daejeon High Court Decision 2009Nu2304 decided January 28, 2010

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

We examine the grounds of appeal.

1. The lower court determined that: (a) the Plaintiff proposed installation of medical welfare facilities (hereinafter referred to as “instant social welfare facilities”) in the Daejeon-dong Special Research and Development Zone (hereinafter referred to as the “Special Zone”) designated by the former Special Act on the Promotion of the Seoul Special Research and Development Zone, etc. (amended by Act No. 9401, Jan. 30, 2009; hereinafter referred to as the “former Special Zone Act”); and (b) the Plaintiff did not request the Defendant to cancel the construction permission of the instant social welfare facilities under the former Special Zone Act on the grounds that the Plaintiff failed to comply with the procedures for the establishment of the Seoul Special Zone Act, including the withdrawal of the construction permission of the instant special zone and the cancellation of the construction permission of the instant social welfare facilities under Article 6 of the former Special Zone Act on the grounds that the application is unreasonable on October 8, 2008; and (c) the Defendant did not request the Plaintiff to cancel the construction permission of the instant social welfare facilities under the former Special Zone Act on the grounds that it did not comply with the construction permission of the latter Act on the grounds.

2. However, it is difficult to accept the judgment of the court below for the following reasons.

According to the former Special Zone Act, the Minister of Knowledge Economy shall formulate and implement a comprehensive plan to promote a special zone every five years in order to efficiently achieve the objectives of the former Special Zone Act. A comprehensive plan to promote special zones shall include matters concerning basic direction-setting for the promotion of special zones, installation of infrastructure, such as roads and water supply, research institutes, and support for the management of intellectual property rights in universities, research institutes, and special zones (hereinafter referred to as "special zone development project"), development projects including the creation of sites for industries and research facilities (including the selection of implementers) and methods of implementation thereof (Article 6 of the former Special Zone Act), and matters concerning the special zone development project and the method of implementation thereof shall include the name, location and size of the special zone, methods and period of implementation of the special zone development project, land use plan and major infrastructure plan, transportation plan, plan for inducement of universities, research institutes and enterprises, plan for environmental conservation, plan for inducement of land and plan for creation of environment for foreigners, etc., and an implementer designated by the Minister of Knowledge Economy under Article 26 of the former Special Zone Act shall be included in the implementation plan and approval of the same Act (Article 7).

In full view of the legislative purpose of the former Special Zone Act that intends to contribute to the innovation of national technology and the development of the national economy by facilitating research and development projects of universities, research institutes, and companies located in the relevant region through promotion of a special research and development zone, promoting mutual cooperation, and supporting commercialization of the outcomes of research and development projects and the establishment of a new special research and development zone, the special zone development project within the special development zone designated by the former Special Zone Act shall be implemented by the Minister of Knowledge Economy or the implementer of the special zone development zone designated by the Minister of Knowledge Economy in compliance

According to the records, the establishment project of social welfare facilities of this case constitutes a special zone development project, which establishes welfare facilities stipulated in Article 6 of the former Special Zone Act and Article 7 of the Enforcement Decree of the same Act, and the plaintiff applied for the building permit of this case without complying with the procedure and method for the special zone development project stipulated in the former Special Zone Act.

Examining the above circumstances in light of the legal principles as seen earlier, the Plaintiff’s application for the instant building permit violates the procedure and method prescribed by the former Special Zone Act, and accordingly, the Defendant’s disposition that rejected the instant application for the building permit is lawful.

Nevertheless, the lower court determined that the instant disposition was unlawful solely on the ground that the instant application site is land for which welfare facilities for the aged can be established under the Special Zone Management Plan. In so doing, it erred by misapprehending the legal doctrine on the former Special Zone Act, thereby adversely affecting the conclusion of the judgment

3. 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 Kim Young-ran (Presiding Justice)