2013du7025 The project executor of the urban planning facility project and the revocation thereof.

SectorRevocation

A Incorporated Foundation A

Gyeonggi-do Sungnam City

Seoul High Court Decision 2012Nu10040 Decided March 14, 2013

July 10, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

(a) Whether ownership requirements are met for designating an implementor of an urban planning facility project;

Article 86 (7) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 2011; hereinafter referred to as the "National Land Planning Act") provides that a person who does not fall under the State or a local government, etc. intends to be designated as an implementer of an urban planning facility project shall meet the requirements prescribed by Presidential Decree concerning the size of the land (excluding State-owned and public land) subject to an urban planning facility project and the ratio of the consent of landowners. Article 96 (2) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter referred to as the "Enforcement Decree of the National Land Planning and Utilization Act") provides that the person owns land equivalent to at least 2/3 of the size of the land subject to an urban planning facility project and the consent

According to the reasoning of the lower judgment, the lower court determined that, in light of the current state of land ownership subject to the instant project, the Defendant could not be deemed to have satisfied the requirements for ownership under the said provision at the time of granting the Plaintiff the designation of an implementor of an urban planning facility project and the authorization of an implementation plan. In light of relevant regulations and records, the lower court’s aforementioned determination is acceptable, and there was no error of law by misapprehending

(b)Criteria timing for determining consent requirements for designating an implementor of an urban planning facility project and methods for calculating consent rates;

Article 86(7) of the National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree thereof provide that the consent of at least 1/2 of the total number of landowners shall be obtained as an implementer of an urban planning facility project, and there is no provision regarding the standard time for determining the consent requirements or the method of calculating the consent rate. However, in light of the purport of the National Land Planning Act, the respect for the right holder’s intent to lose ownership against the intent of the project implementer should be considered as the standard time for determining whether the consent requirement is satisfied, in full view of the following: (a) a private person’s act under public law may be freely withdrawn or revised until an administrative act is prohibited or impossible due to its nature; and (b) a private enterprise designated as a project implementer may expropriate the land subject to an urban planning facility project upon obtaining authorization of the implementation plan; and (c) the consent requirement is meaningful as the basis for justifying the grant of the right to expropriate to such private enterprise; and (d) the respect for the right holder’s intent to lose ownership is consistent with the National Land Planning Act.

In addition, there is no special provision that the co-owners should be calculated as one landowner in the relevant laws, and each co-owner's own interest in the exercise of the right to consent to the designation of a project implementer which is the foundation of the procedure for expropriation. Therefore, in principle, co-owners should be calculated as the landowner.

In the same purport, the court below is just to determine whether each co-owner is a landowner at the time of disposition of designation as a project implementer and whether the project implementer satisfies the requirements for consent. There is no error of law by misapprehending the legal principles on the standard time of determination and method of calculating the consent rate.

2. As to the second ground for appeal, the competent authority that has designated an implementor of an urban planning facility project or authorized an implementation plan may cancel the designation of an implementor pursuant to Article 133(1)21(d) and (e) of the National Land Planning and Utilization Act when the grounds for appeal arise, as well as may cancel the designation of an implementation plan or the disposition to authorize an implementation plan pursuant to Article 133(1)21(d) and (e) of the said Act

In the same purport, the court below is just in holding that the defendant's designation of the implementer of the urban planning facility project against the plaintiff and the disposition of the approval of the implementation plan are defective, and thus, the defendant may revoke the designation of the implementer and the disposition of the implementation plan on the ground of such defect. There is no error of law by misapprehending the legal principles on the designation of the implementer of the urban planning facility project

3. As to grounds of appeal Nos. 3 and 4

A. If a citizen acquires a certain benefit and right through a certain administrative disposition, the administrative disposition to revoke the previous administrative disposition must be a separate administrative disposition that deprives the person who already acquired the existing benefit and right, and the public need to revoke the administrative disposition to be revoked. Furthermore, even if there is a defect in the administrative disposition, the administrative disposition can be revoked only if it is more strong to justify the disadvantage of the party to the public interest due to comparison and comparison with the necessity of the public interest and disadvantage such as the infringement of the right to obtain benefits and the protection of trust and the stability of legal life, etc., and then the burden of proof on the need to revoke the defect and the need to cancel is an administrative agency that has issued the disposition that infringes on the existing interest and right (see, e.g., Supreme Court Decisions 63Nu142, May 26, 1964; 201Du2375, Mar. 29, 2012).

B. According to the reasoning of the lower judgment, the lower court: (a) on October 21, 2009, filed an application with the Defendant for designation of a project implementer and authorization of an implementation plan (hereinafter referred to as “application of this case”); and (b) on December 4, 2009, in order to obtain designation as a project implementer from the Plaintiff on the part of December 4, 2009, the Plaintiff applied for designation as a project implementer under Article 96 of the Enforcement Decree of the National Land Planning Act to obtain designation as a project implementer from the Plaintiff on the part of the Plaintiff.

The plaintiff notified the defendant on December 7, 2009 that he/she shall submit a plan to take measures for the matters of consultation by affiliated department including the matters of consultation in accordance with paragraph (2). The plaintiff submitted a plan to the defendant on December 9, 2009 that he/she shall meet the requirements for designation of a project implementer under Article 96 (2) of the Enforcement Decree of the National Land Planning Act and that other matters of consultation shall be implemented. On December 9, 2009, the defendant designated the plaintiff as the project implementer and at the same time authorized the implementation plan (hereinafter referred to as "the original disposition in this case by adding the designation and authorization of the project implementer) at the same time. However, on August 31, 2010, the defendant acknowledged that on August 31, 2010, the original disposition in this case was revoked on the ground that the requirements for designation of the project implementer under Article 96 (2

Furthermore, the lower court determined that the instant disposition is lawful on the ground that, in light of the following circumstances: (a) the Plaintiff filed the instant application with the Defendant without satisfying the requirements under Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act; (b) the Plaintiff, despite the fact that the Plaintiff satisfied the above requirements and submitted a plan to take measures different from the fact that other agreed matters would be implemented; and (c) the specific meaning of the request for submission of the plan cannot be deemed to have not been sufficiently verified to the public official in charge; and (d) the public interest need to secure the legality of designation of the implementor of the instant original disposition; (b) the need for public interest to secure the legality of the designation of the implementor of the urban planning facility project or the authorization of the implementation plan; and (c) the Plaintiff appears to have been actually suspended after August 2010, even if the Plaintiff trusted that the instant initial disposition was legitimate after the instant initial disposition, the Plaintiff could not be deemed to have any cause to the Plaintiff; and (d) the Plaintiff’s interest infringement caused by the instant disposition may be justified.

C. However, the lower court’s determination is difficult to accept.

1) The lower court determined to the effect that the Plaintiff could not invoke reliance interest due to the Plaintiff’s causes attributable to the defect in the original disposition in this case. However, the lower court determined that the Plaintiff could not invoke reliance interest because of the reasons for the lower judgment and the circumstances revealed by the record, namely, the Plaintiff’s accurate statement to the Defendant on the ownership status of the land, which is the object of the instant project, at the time of the instant application, and the agreement that “to be designated as a project implementer, must meet the requirements of Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act,” rather than pointed out the defect in the requirements for designation of the project implementer, it may be recognized that the Plaintiff’s act was merely nothing more than pointing out the defect in the requirements for designation of the project implementer, and the public official in charge of the instant case was deemed to have satisfied the requirements for ownership prescribed in the Enforcement Decree in light of the current status of land ownership and land ownership. Accordingly, it is difficult to readily conclude that the Plaintiff’s act of the original disposition in this case did not meet the requirements for the Plaintiff’s reliance interest.

2) Furthermore, we examine whether the public interest necessity to cancel the original disposition in this case can be sufficient to justify disadvantages suffered by the Plaintiff. The record reveals that the land amounting to approximately 75% of the size of the land at the time of the original disposition in this case excluding state-owned land at the time of the original disposition in this case was owned by D, a representative of the Plaintiff, or a person with a special relationship with D, or a corporation with him, and thus, the ownership for the project in this case was anticipated to be transferred to the Plaintiff. At the time of the application in this case, the requirements for consent under Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act were met, and even at the time of the original disposition in this case, even if only one of the owners of the land at the time of the original disposition in this case or one of the co-owners obtained consent to the original disposition in this case, it is difficult to readily conclude that the Plaintiff was subject to the initial disposition in this case’s project in this case’s situation that the Plaintiff could not have any disadvantage due to the above execution of the project in this case.

3) Therefore, the instant disposition that revoked the original disposition from a different view is lawful. In so determining, the lower court erred by misapprehending the legal doctrine on ex officio revocation of administrative action, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

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 Yong-deok

Justices Shin Jae-young in charge

Justices Lee Sang-hoon

Justices Kim Gin-young