Plaintiff (Attorney Kim Yong-mun, Counsel for plaintiff-appellant)

The head of Gangseo-gu Busan Metropolitan Government (Law Firm Gangnam General, Attorney Kim Ho-ho, Counsel for defendant-appellant)

April 18, 2013

1. The Defendant’s disposition not to select an operator of a gas station in a development restriction zone against the Plaintiff on August 22, 2012 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 3, 2012, the Defendant: (a) revised the plan for the placement of gas stations within the development restriction zone so that two gas stations may be installed additionally between the Dobong-dong in Gangseo-gu in Busan and the basement road in the city of Kimhae-si; (b) on the same day, the Defendant published the plan for the placement of gas stations within the development restriction zone; (c) pursuant to the above alteration announcement, the recruitment announcement recruiting the operators of gas stations (hereinafter “instant recruitment announcement”); (d) the person who was residing in the relevant area at the time of designation of the development restriction zone (i) was located in the development restriction zone and owned the housing or land in the development restriction zone (resident at the time of designation), and (ii) was defined as “the period during which he resided outside the development restriction zone for entering the development restriction zone, including the head of household, lineal descendant, etc. who resided outside the development restriction zone for the purpose of living outside the development restriction zone.”

B. On the same day, the Plaintiff filed an application with the Defendant to select an operator of the gas station, and on August 22, 2012, the Defendant rendered a disposition to not select an operator of the gas station (hereinafter “instant disposition”) on the ground that “the Plaintiff transferred the gas station to outside of a development-restricted zone and does not comply with the application conditions for the public notice of the instant recruitment.”

C. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission, but the claim was dismissed on December 11, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3-2, Eul evidence 1, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The requirements for application for the instant recruitment notice are unclear and incomplete, as well as are inconsistent with the purport of Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones, and the instant disposition based on such requirements is unlawful.

2) Even if the recruitment notice of this case is valid, ① the Defendant did not request the Plaintiff to supplement whether the qualification requirements for the recruitment notice of this case are met, and the instant disposition is unlawful in violation of the Administrative Procedures Act, and ② the Plaintiff satisfies the above qualification requirements, and thus, the Defendant’s disposition of this case on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the Plaintiff’s first argument

Article 18(2)3 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter referred to as the “Enforcement Decree”) provides that “a person who is residing in the relevant development restriction zone from the time of designation of the development restriction zone (including a person who was residing in the relevant development restriction zone as at the time of designation of the development restriction zone and was residing outside the development restriction zone for not more than three years for living, and who owned a house or land in the development restriction zone and resided outside the development restriction zone for not more than three years for living, but the period during which he/she resided outside the development restriction zone for attending the development restriction zone shall be deemed the period during which he/she resided in the development restriction zone; hereinafter referred to as “resident at the time of designation”).

In light of the above, the public offering notice of this case provides the same contents as the general provision among the provisions of Article 18 (2) 3 of the Enforcement Decree of the Act as the qualification requirements for application, while the phrase "resident at the time of designation" is also stipulated within the general provision, the defendant seems to meet the qualification requirements for application for the public offering notice of this case. The above provision of the Enforcement Decree provides that "a person who resides in the development restriction zone at the time of designation of the development restriction zone" as the principle of "a person who resides in the development restriction zone at the time of designation of the development restriction zone" and exceptionally recognized qualification requirements within the general provision. The public offering notice of this case does not stipulate the part concerning the principle of application,

However, Article 12 (1) 1 (e) of the Act, Article 13 (1) [Attachment 1] 5 (e) [Attachment 1] 10] of the Enforcement Decree provides that a gas station may be established only for residents at the time of designation within a development restriction zone with permission from the head of a Si/Gun/Gu. At the time of designation, the meaning of residents at the time of designation shall be deemed as defined in Article 18 (2) 3 of the Enforcement Decree. The public notice of recruitment of this case is based on the qualification for application, "a person residing in the development restriction zone from the time of designation of the development restriction zone," and it is reasonable to deem that the plaintiff also applied for the selection of the gas station operator with knowledge of such fact. Thus, it is difficult to deem that the public notice of recruitment of this

Therefore, this part of the plaintiff's assertion is without merit.

2) Judgment on the second argument by the Plaintiff

In full view of the purport of the entire pleadings in the statement No. 6-1 and No. 6-2, the defendant demanded on June 7, 2012 that the plaintiff, on the part of June 7, 2012, "as the defendant had access to a restricted development zone outside of the restricted development zone for a period of not more than three years, the documents proving whether he/she has resided outside the restricted development zone due to his/her occupation, etc., shall be shipped out." Accordingly, the plaintiff submitted a written confirmation on June 15, 2012. According to the above facts of recognition, the defendant appears to have given sufficient opportunity for the plaintiff, and further, it is difficult to deem that the defendant has the obligation to

Therefore, the plaintiff's assertion on this part is without merit.

3) Judgment on the third assertion by the Plaintiff

Article 18(2)3 of the Enforcement Decree provides that "resident at the time of designation of a development restriction zone" shall be construed as a requirement that resident shall continue to reside in a development restriction zone as well as at the time of designation of a development restriction zone and until the date of application for permission (see Supreme Court Decision 2005Du3165, Jul. 8, 2005). In principle, determination of whether the above requirements are met shall be based on public records, such as resident registration record cards. However, if the resident record card is recognized as having other contents than the resident registration record card, determination of whether the requirements

In full view of the purport of the argument in the statement No. 4 and No. 5-1, the plaintiff moved to the address No. 1 in Gangseo-gu (hereinafter "the address of this case") located within the development restriction zone of Gangseo-gu (hereinafter "the address of this case") on December 29, 1971. The plaintiff moved to the domicile of this case (hereinafter "the first transfer") on August 1, 1989. On January 5, 1991. The plaintiff moved to the domicile of this case No. 9 for the first time on August 1, 1991. The plaintiff moved to the domicile of this case No. 9 for the second time on August 29, 191 and moved to the domicile of this case No. 9 (hereinafter "the second transfer") for the second time on August 14, 1991. It was reasonable to recognize that the plaintiff moved to the domicile of this case for the second time after the second time on August 9, 191.

Therefore, the disposition of this case made by the Defendant on different premise should be revoked as it is unlawful (as long as the disposition of this case is revoked on the same ground, it is not separately determined whether the Plaintiff resided outside the development restriction zone for the purpose of living).

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment Form 5]

Judges Kim Sang-hoon (Presiding Judge)