Plaintiff 1 and two others (Law Firm Law, Attorneys Noh Young-dae et al., Counsel for the plaintiff-appellant)

Head of Gun (Attorney Na Jae-ho, Counsel for defendant-appellant)

September 20, 2007

1. Each of the plaintiffs' claims is dismissed.

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

The defendant's disposition of rejecting the application for land category change against the plaintiffs on May 14, 2007 shall be revoked.

1. Details of the disposition;

A. On December 31, 1969, the deceased Nonparty purchased and owned 7,240 square meters of forests and fields (number omitted) 7,240 square meters (hereinafter “instant land”). On August 20, 191, Plaintiff 1, 2, and 3, who were his wife, are co-owned by inheritance of 1/3 shares by agreement division.

B. On February 20, 2007, the Plaintiffs filed an application with the Defendant for the change of the land category of the instant land from “forest” to “the front”. However, on February 22, 2007, the Defendant rendered a disposition against the Plaintiffs on the ground that “a copy of a document certifying the change of use under Article 25(1)3 of the Enforcement Rule of the Cadastral Act is attached to the application form.”

C. On March 30, 2007, Plaintiff 1 filed an application with the Defendant for the change of the land category of the instant land from “forest” to “former” on its own, and explained that the instant land was actually used as “former” from several hundred and sixty years ago, Plaintiff 1 attached the aerial photography taken around April 3, 2007 by the National Land Geographic Information Institute around 1966. As to this, the Defendant demanded Plaintiff 1 to supplement Plaintiff 1 to the effect that “the evidentiary document under Article 25(1) of the Enforcement Rule of the Cadastral Act is shipped by April 11, 2007,” but the Plaintiff 1 failed to implement the supplementary measures, and thus, the Plaintiff 1 issued a disposition for the consideration of the application against Plaintiff 1 on April 12, 2007.

D. On May 9, 2007, the Plaintiffs again filed an application with the Defendant for the change of the land category of the instant land from “forest” to “the front”. However, on May 14, 2007, the Defendant rendered a disposition to return the instant land to the Plaintiffs on the ground that “the instant land did not comply with the prior legal procedure for the change of land category” (hereinafter “instant disposition”).

E. The instant land is each designated as a development restriction zone under Article 3(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones, a natural green area under Article 36(1) of the National Land Planning and Utilization Act, and a preserved mountainous district under Article 5(1) of the Management of Mountainous Districts Act.

[Ground of recognition] The fact that there is no dispute, Gap evidence 1 through 4 (including paper numbers), Eul evidence 13, and Eul evidence 15-2

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Although the land in this case is classified as “forest,” the land category in the public register has been actually used as “the whole,” it shall be deemed as falling under “the case where the land use is changed” under Article 16(1)2 of the Enforcement Decree of the Cadastral Act, the Defendant’s disposition that rejected the Plaintiffs’ application for land category change is unlawful.

(b) Related Acts and subordinate statutes: Attached Form;

C. Determination

(1) “Change in the form and quality of land” refers to a change in the form and quality of land due to cutting, filling-up, or suspension, etc. and reclamation of public waters (Article 51 subparag. 3 of the Enforcement Decree of the National Land Planning and Utilization Act). This is subject to permission for development pursuant to Article 56(1) of the National Land Planning and Utilization Act. In other words, the change in the form and quality of land is not merely a change in the physical state of land, but rather means the change in the legal nature of land (the possibility of use, possibility of development, which is permitted by the Act for individual land) through permission for development activities.

(2) Under the current legal system, regulations on the availability and possibility of development of individual land are implemented at the two levels. The first sources are carried out by the land category registered on the public register for each individual land (under the Cadastral Act), and the second sources are carried out by urban planning for a wide range of areas (under the National Land Planning and Utilization Act).

(3) The major issue is the possibility of development activities to newly construct a building or install a structure. In the event that such development activities are intended, the land category of the land subject to permission must be “large”; in addition to the building permit for new construction of a building, if the land category of the land is not “large”, the construction works to change the form and quality of the land into the site suitable for the new construction of a building upon obtaining permission for development activities to change the form and quality of the land (see Supreme Court en banc Decision 98Du18619 delivered on December 16, 199, supra, even if the form and quality of the land is de facto and the construction works for change of the form and quality of the land are not necessary, permission for change of the land should be obtained for change of the form and quality of the land in question to “large-scale” (see Supreme Court Decision 98Du18619 delivered on December 16, 199). This is to stipulate that “the change of the form and quality of the forest or the surrounding environment” of the said land should be regulated not only the change of the form and quality and quality of the land.

(4) In light of the fact that the land category becomes a basic element in the regulation on “the possibility of land use” as permitted by the Act, “the use of land” under Article 16(1)2 of the Enforcement Decree of the Cadastral Act shall not refer to the actual status of use, but shall be deemed to refer to “the specific use area,” “the specific use district,” “the specific use district,” and “the specific use district” under the National Land Planning and Utilization Act regulating the availability of the entire land in a specific area in an urban management plan under the National Land Planning and Utilization Act. In other words, “the purpose of land use as legally permitted.”

Article 16 (1) 3 of the Enforcement Decree of the Cadastral Act means that, in the event that the procedure of combination of lands between the lands in the area subject to urban development project is inevitable due to the progress of the urban development project, and accordingly the determination by the administrative agency on the appropriateness of development activities in the area subject to urban development project was confirmed by the authorization of the urban development project. For example, even if the land is not the land category in the area subject to urban development project, the urban development project is aimed at the urbanization of the land, so it is unnecessary to obtain permission to change the form and quality of the land separately

In this interpretation, the grounds under each subparagraph of Article 16(1) of the Enforcement Decree of the Cadastral Act are all presented to the case where the “the possibility of using the land permitted by the Act” is changed by means of an administrative disposition, and each subparagraph maintains harmony.

However, if it is interpreted that "where the use of land is changed" under Article 16 (1) 2 of the Enforcement Decree of the Cadastral Act, as alleged by the plaintiffs, the actual use of land is changed, the permission system for changing the form and quality of land, which intends to regulate the availability of individual land in connection with urban planning, cannot be regulated by interested parties to arbitrarily change the form and quality of land, so it is inconsistent with the purpose of the regulation of the relevant system.

(5) Although it is unclear at any time, when the land of this case was unlawfully converted from the place of origin to the “former”, it is not possible to allow the change of land category without implementing the procedure for permission to change the form and quality of land separately on the ground that the Plaintiffs acquired the illegally converted land.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jin-hoon (Presiding Judge) and Kim Young-young