Requirements for determining urban planning facilities by an administrative agency concerning golf courses and for recognizing the legality of the determination of an implementation plan related thereto, and the standard for determining whether sports facilities are facilities used by the general public in operation methods, etc.

Article 2 Subparag. 6(d), Articles 30, and 88 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 2(1)4, and (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 99 of the former Rules on the Determination, Structure, and Standards for Installation of Urban Planning Facilities (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Nov. 1, 201); Article 3 of the Installation and Utilization of Sports Facilities Act; Article 2 [Attachment Table 1] of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act

Supreme Court Decision 2012Du12884 Decided September 12, 2013 (Gong2013Ha, 1819)

Plaintiff (Law Firm Sejong, Attorneys Kim Young-hee et al., Counsel for the plaintiff-appellant)

Gyeonggi-do Local Land Tribunal and one other (Law Firm New Seoul, Attorneys Gyeong-jin et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu45681 decided June 5, 2012

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Articles 2 subparag. 4(c) and 7, 10, 30, 43, and 95 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter referred to as the “former National Land Planning and Utilization Act”) provide that the facilities determined for the installation, maintenance, or improvement of infrastructure under an urban management plan among infrastructure shall be the urban planning facilities, and the implementer of a project installing, maintaining, or improving the urban planning facilities shall be entitled to expropriate or use the articles or rights necessary for such project. Article 2 subparag. 6(d) of the former National Land Planning and Utilization Act defines the infrastructure that can be determined as the urban planning facilities as mentioned above, and provides that “public facilities, such as schools, playgrounds, public buildings, cultural facilities, and sports facilities prescribed by Presidential Decree,” as one of such infrastructure.

However, on June 30, 201, the Constitutional Court confirmed that Article 2 Subparag. 6(d) of the former National Land Planning Act (hereinafter “instant definition provision”) delegated the Presidential Decree comprehensively without considering the nature and public interest of each sports facility, without limiting the specific scope, and that it goes against the principle of prohibition of comprehensive delegation by deviating from the limit of delegated legislation under the Constitution and goes against the principle of prohibition of comprehensive delegation. However, if a decision of unconstitutionality is rendered with respect to the definition provision of this case, it is anticipated that the sports facilities including the essential sports facilities will be subject to the decision of unconstitutionality, instead of simply making a decision of unconstitutionality to prevent this, it is desirable to apply the definition provision of this case temporarily until the unconstitutionality is removed by new legislation, the Constitutional Court rendered a ruling of unconstitutionality to the effect that the provision of this case does not conform with the Constitution, and that the legislative amendment of Article 2 Subparag. 6(d) of the former National Land Planning Act shall continue to apply until December 31, 2012.

After that, the National Assembly amended the definition clause of this case as “sports facilities deemed necessary for public use” by Act No. 11579 on December 18, 2012, and the amended Act was enforced from January 1, 2013.

In light of the grounds for unconstitutionality of the definition provision of this case and the purport of provisional application, the determination of the urban planning facilities of this case or the authorization disposition of the implementation plan of the urban planning facilities of this case as publicly notified before the provisional application of the above decision shall be deemed to have been applied as well as the definition provision of this case.

The decision of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the scope of the definition provision of this case by erroneous interpretation.

2. Regarding ground of appeal No. 2

A. In full view of the former National Land Planning Act and its Enforcement Decree (amended by Presidential Decree No. 24443, Mar. 23, 2013); the former Rules on the Determination, Structure, and Standards for Installation of Urban Planning Facilities (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Nov. 1, 201); Article 3 of the Installation and Utilization of Sports Facilities Act; the Enforcement Decree thereof; and the form and content of each provision of the Enforcement Decree thereof; and the fact that the authorization of an implementation plan for an urban planning facility project is for realizing a specific urban planning facility project in accordance with the determination of an urban planning facility project, the determination of an urban planning facility project by an administrative agency with respect to a golf course may be deemed legitimate only where it is a sports facility installed for public use, barring any special circumstance. When an administrative agency approves an implementation plan for the determination of the urban planning facility project, it should be deemed that the implementation plan can be approved only when it can be confirmed by examining the standards for the determination, structure, and installation of the urban planning facility (sports) as well.

In addition, whether a sports facility constitutes a facility for the use of the general public in the operating method, etc. shall be determined with a focus on whether the possibility of use of the facility is substantially open to the general public, by comprehensively taking into account the numbers of the general public who conduct sports activities using the type of facility, the operational feasibility of the facility, the economic burden required for the use of the facility, the scale of

B. According to the reasoning of the judgment below, the determination of the instant urban planning facilities is related to golf courses among sports facilities under the aforementioned relevant laws and regulations, and is based on the aforementioned determination, Leecheon-si approved the implementation plan of the instant urban planning facilities project, which is the content of establishing a membership golf course of 18 holes by the project implementer Tae Mandi S&S as the project implementer.

In light of the aforementioned legal principles, the determination of the instant urban planning facility project may be deemed lawful only to the extent that it is recognized as having been conducted with respect to a golf course installed for the use of the general public. However, in light of the general economic level of our society, any membership golf course can be used when anyone obtains membership only in the form of a membership fee, but its use is limited to a person other than the person who has become a member. Therefore, barring any special circumstance to view otherwise regarding its operating method, it is difficult to regard it as “sports facilities installed for the use of the general public.” Therefore, the authorization of the instant urban planning facility project that is a membership golf course as an urban planning facility project exceeds the scope to which the legality of the determination of the instant urban planning facility project, which is the basis thereof,

Nevertheless, the lower court determined to the effect that the instant project approval, which is deemed lawful, based on the premise that a membership golf course under the implementation plan of the instant urban planning facility project conforms to the determination of the instant urban planning facility project, is deemed lawful. In so doing, the lower court erred by misapprehending the meaning of golf courses subject to the determination of the urban planning facility project, and by misapprehending the legal doctrine on whether the implementation plan

C. However, in order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect must be objectively obvious and serious in violation of the relevant laws and regulations (see, e.g., Supreme Court Decision 2002Du12618, Jun. 10, 2004). However, there was no legal principle suggesting that the method of operation, etc. of sports facilities should be determined mainly on the possibility of actual use of the general public, considering not only formal matters such as qualifications for use of facilities, but also the cost of use of facilities, etc., until the time of the instant disposition for authorization of the implementation plan for urban planning facility project in question. Rather, there was no room to interpret that a membership golf course constitutes a sports facility to be installed to provide for use by the general public because it does not impose any restriction on general membership, and there was a possibility that it is a large number of urban planning facility projects with the construction of a membership golf course.

In full view of the foregoing circumstances, at the time of the authorization of the implementation plan of the instant urban planning facility project, it is limited to golf clubs, which are “sports facilities installed to provide the decision of the urban planning facility project to the general public for use,” and it is difficult to deem that there was no room for dispute over the interpretation of the legal principles as to the illegality of a membership-based golf club, as it is clearly stated that it does not comply with such legal principles. Therefore, the instant project approval that is deemed by the authorization disposition of the implementation plan of the instant urban planning facility project or by the said disposition

D. The court below rejected the plaintiff's assertion that the expropriation ruling of this case itself should be revoked as it is unlawful, regardless of whether the project approval of this case based on the definition clause of this case cannot be deemed to be null and void automatically in light of the circumstances indicated in its reasoning, on the ground that the project approval of this case based on the definition clause of this case cannot be deemed to be null and void automatically, although the judgment of the court below is somewhat inappropriate, it is reasonable to conclude that the plaintiff's request for revocation of the expropriation ruling of this case was not affected by the error of the judgment of the court below, since the plaintiff's request for revocation of the expropriation ruling of this case was not affected by the error of the judgment of the court below. The ground for appeal concerning this part of the ground for appeal is without merit.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)