Plaintiff 1 and 58 others (Attorney Lee Han-woo, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Government Law Firm Corporation, Attorneys Literature-Bed et al., Counsel for the plaintiff-appellant)

Seoul Administrative Court Decision 2008Guhap48732 Decided December 10, 2009

August 31, 2010

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The part of the decision of the Defendant on the Black 8 Urban Renewal Promotion Zone (the plaintiff reduced the claim in the first instance) among the alteration designation of the Black 2008-307 publicly notified by the Seoul Special Metropolitan City notification No. 2008-307 on September 11, 2008 and the urban renewal acceleration plan decision

1. Details of the disposition;

(a) Designation and alteration of the defendant's black seat renewal acceleration district;

(1) On October 19, 2006, the designation and public announcement of 898,610 square meters in black-dong (number 1 omitted) Dongjak-gu Seoul Metropolitan Government as Black-dong (Seoul Metropolitan Government Notice No. 2006-357, Oct. 19, 2006

(2) Determination and public announcement of urban renewal acceleration plans for district area alteration (894,933 square meters) and above district on September 11, 2008 (Seoul Special Metropolitan City Notice No. 2008-307, hereinafter “instant disposition”)

- Black-dong (number 2 omitted) a day-to-day 33,310 square meters (hereinafter referred to as “instant zone”) shall be designated as black 8 financial rain promotion zones (business method: Housing redevelopment project);

B. Review of whether the defendant satisfies the requirements for designation of the zone of this case

(i)The status of the zone;

- Of general land 237, of small and short parcels 142, of irregular and small-type parcel 11.

- the same number of buildings 223, 180 detached houses, 3 multi-unit houses, and 40 other buildings

- The ratio of small and medium-sized and small-type parcel (hereinafter referred to as "small and medium-type parcel ratio"), 64.6%, housing density 66.9 (Dong/1) and old age 30.3, housing adjoining rate 4.8

(2) Meeting the shortage rate (not less than 40%) and the housing density (not less than 48%).

Article 10(1) [Attachment I] 2 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21679 of Aug. 11, 2009; hereinafter “Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas”) and Article 10(1) [Attachment I] 2 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 4686 of Sep. 30, 2008; hereinafter “Ordinance on the Maintenance and Improvement of Urban Areas”) and Article 4(1) 2(a) of the Seoul Metropolitan Government Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21403 of Mar. 31, 2009) apply under Article 12(1) of the Enforcement Decree of the Special Act on the Promotion of Urban Renewal and under Article 7 of the Seoul Metropolitan Government Ordinance on the Promotion of Urban Renewal.

C. The plaintiffs' status: The owners of land or buildings in the instant zone;

【Ground for recognition】In the absence of dispute, Gap evidence No. 1, Eul evidence No. 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

(1) Article 10 [Attachment 1] subparagraph 2 (b) (hereinafter “Enforcement Decree of this case”) of the Enforcement Decree of the Urban Improvement Act shall be null and void.

In light of Article 4(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “Urban Improvement Act”), the basic condition for “populated old and inferior buildings” is to designate a rearrangement zone, and in light of the purpose of Article 1 of the Urban Improvement Act as well as the definition of a housing redevelopment project under Article 2 subparag. 2(c) of the Urban Improvement Act, etc., the “area subject to designation requirements for a housing redevelopment project” under Article 4(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “the requirements for designation of a housing redevelopment zone”) shall include “populated of old and inferior buildings” (hereinafter “the requirements for designation of a housing redevelopment zone”) which are delegated to the Presidential Decree under Article 4(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. However, since the instant enforcement decree provides that buildings may be designated as a housing redevelopment zone regardless of whether old and inferior buildings are excessively

(2) Invalidity of Article 4(1)2 of the Ordinance on Maintenance (hereinafter “instant Ordinance”).

The provision of this case is null and void, since the requirements for designation of housing redevelopment area are mitigated or independent requirements for designation are stipulated in excess of the scope of delegation under Article 10 (1) [Attachment 1] 2 and 5 of the Enforcement Decree of the Act on the Improvement of Urban Areas.

(3) Requirements for designation of housing redevelopment area

㈎ 이 사건 조례조항 불충족

Article 4(1)2(a) of the Ordinance on the Maintenance and Improvement provides that both subparagraphs 1(a) and (c) fall under subparagraph 1(d) or meet the requirements of subparagraph 2(a). The instant disposition is deemed to meet the requirements of subparagraph 1(c) even though only subparagraph 1(c) is applicable, and thus, the said disposition is unlawful.

㈏ 이 사건 시행령 조항 불충족

Even if the requirements prescribed by the Ordinance provisions of this case were met, the instant zone did not meet the requirements of “area difficult to promote the rational utilization and value of land within the said zone” under the Enforcement Decree of this case.

(4) The error in calculating the shortage rate of land

㈎ 과소필지

1) Since ten parcels of land, such as black land (number 6 omitted), (number 9 No. 3, the year number of No. 3, and the year number of No. 3, the year number of the land entered in the part related to the lower parcel rate, referring to the year number of No. 3), are more than 90 square meters in size, it should be excluded from the calculation of the shortage rate.

2) The Defendant calculated the shortage rate solely on the basis of the size in the serial cadastral map and the public book (land subject thereto), and did not accurately calculate the shortage rate by either measuring all the land in the instant zone and by other means.

㈏ 부정형·세장형 필지

1) Article 2 subparagraph 9 of the Maintenance Ordinance, which serves as the basis for the standards for recognition of fraudulent and intangible lots, is not only premised on the instant ordinances provisions, but also invalid since they are the provisions for blank delegation.

2) The criteria for recognition of an irregular or small-type parcel were established and implemented as an internal official document without prior public announcement, and its content is convenient and arbitrary, so it cannot be considered as the criteria for the designation of housing redevelopment.

3) In order to be classified into an irregular or small-type parcel, it should be used as a “site for construction.” Since 7 lots of land (146 to 148, 150 to 153) such as Black-dong land (number 3 omitted), etc. (number 146) are used as roads, it cannot be calculated as an irregular or small-type parcel. Moreover, six lots of land (246 to 251), such as Black-dong (number 4 omitted), which are urban planning facilities as roads, and land category of which does not fall under a building site, is not considered as an illegal or small-type parcel (number 4 omitted).

㈐ 과소필지율 재산정

In other words, the land that can be seen as having fulfilled the utility as a building site, namely, the land that was constructed with a building permit obtained prior to September 23, 1992 even if the area is less than 90 square meters, ② even the land that was constructed with a building permit obtained, and the area of the building is not less than 90 square meters, ③ the land that was constructed with the entire site area of not less than 90 square meters, ③ the land that was constructed with the building permit obtained on the ground that the entire site area is not less than 90 square meters, and the land, etc. on which the building was constructed on the ground shall be excluded from the small or irregular-type, and accordingly, if the property

(5) error in calculating housing density

11 buildings (No. 75, 95, 96, 214-221), such as buildings on the ground (No. 5 omitted) (No. 75, 95, 96, 214-221) and buildings on the ground (No. 75, 95, 96, 96, 214-21 on the left-hand side of the evidence No. 4; No. 75 on the part related to the housing density) are not existing, or not “existing unauthorized buildings” as prescribed in subparagraph 1 of Article 2 of the Maintenance Ordinance, and thus, it should be excluded from the calculation of the housing density.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) As to the first argument (whether the enforcement decree of this case is invalid or not)

If it is not clear whether a provision of the enforcement decree conflicts with the mother law, if it is possible to interpret that a provision conforms to the mother law by comprehensively assessing the other provisions of the parent law, the legislative intent and history thereof, etc., the declaration that the provision is null and void as a violation of the mother law shall be careful (Supreme Court en banc Decision 97Nu9864 delivered on December 16, 199).

The purpose of an improvement project under the Urban Improvement Act is to improve urban environments and enhance the quality of residential life by planned rearrangement of areas where urban functions are required to be restored or residential environment is inferior (Article 1 of the same Act). The establishment of an improvement plan and the designation of an improvement zone is an administrative plan to determine whether to implement a rearrangement project and the details thereof, and to establish an activity standard to realize specified order at a certain point in the future by integrating and coordinating relevant administrative means to achieve a specific administrative objective called urban and residential environment maintenance and improvement based on a high level of professional and technical judgment, so it is relatively broad freedom for the competent administrative agency to establish and designate an improvement plan and designate an area. Therefore, it is not immediately possible to establish an improvement plan and designate an area, but only when it is deemed necessary to implement an improvement project, taking into account various circumstances, such as residential environment and housing demand in the relevant area. Article 4(1) of the Urban Improvement Act provides that the head of a Si/Gun may establish an improvement plan within the scope consistent with the basic plan and apply to the Mayor/Do governor for the opinion of the local council after formulating the improvement zone and the Act.

Therefore, this part of the plaintiffs' assertion that the enforcement decree of this case is invalid is without merit.

(2) On the second argument (whether the provision of this case is invalid or not)

Article 10 (1) [Attachment Table 1] 2 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Designation of Housing Redevelopment Zone provides that the requirements for the designation of Housing Redevelopment Zone shall be determined by the abstract concept such as "an area where the utility as a site becomes impossible or where the environment of an urban community might be significantly poor due to under-land," and "an area where the rational use and value of land is difficult to promote because buildings are excessively concentrated," and it is necessary to establish detailed criteria for determination in order to examine whether the above requirements are met under the above items. Accordingly, according to the delegation of [Attachment Table 1] 5 of the above, the above provision of this case provides that the number of old and inferior buildings as a specific housing redevelopment zone and the number of old and inferior buildings, shortage rate of housing, housing adjoining rate, housing density, etc. The above provision of this case provides for the requirements under subparagraph 2 of the above Article and [Attachment 1] subparagraph 2 of the attached Table 2 of this case's Ordinance shall be interpreted as a substitute housing redevelopment zone and the above criteria for the above housing redevelopment zone.

Therefore, as alleged by the plaintiffs, it cannot be deemed that the ordinance provisions of this case are mitigated the requirements of subparagraph 2 of the above [Attached Table 1], or they are separate requirements. Thus, there is no reason for this part of the plaintiffs' assertion that the above ordinance provisions are invalid.

(3) Third, as to the third argument (whether the requirements for designation of housing redevelopment zone are satisfied)

㈎ 이 사건 조례조항의 불충족 여부

Article 1(1)(a) of the Ordinance of this case provides that “The area falling under subparagraph 1 (a), (c), or (d)” shall be deemed as “area falling under subparagraph 1 (a), (c), or (d)” in light of the form and content of the above provision, and it cannot be deemed as “area falling under subparagraph 1 (a), (c), or (d)” as alleged by the Plaintiffs. Therefore, this part of the Plaintiffs’ assertion is without merit.

㈏ 이 사건 시행령 조항의 불충족 여부

As seen earlier, the instant ordinance provision specifically provides the criteria for determining compliance with the requirements for the designation of a housing redevelopment zone under Article 10 [Attachment Table 1] 2 of the Enforcement Decree of the Act on the Improvement of Urban Areas and Dwelling Conditions, and barring any special circumstance, barring any special circumstance, if meeting the requirements prescribed in the instant ordinance provision, it may be deemed that the above [Attachment Table 1] requirement is met, and the competent administrative agency separately examines whether the pertinent provision of the Enforcement Decree of the instant case satisfies the requirements “area difficult to promote the rational use and value of land within the area,” and does not allow the designation as a housing redevelopment zone only if the requirements are met. Accordingly, there

(4) Fourth, as to the argument (whether the calculation of the excessive parcel rate was erroneous or not)

㈎ 과소필지 부분

1) Article 4(1)1(c) of the Seoul Special Metropolitan City Ordinance on the Improvement of Article 4(1)1(c) provides that “Insufficient parcels which cannot function as a building site” shall be “land below the size under Article 25 of the Building Bylaws.” Article 25 subparag. 1 of the Building Bylaws of Seoul Special Metropolitan City (amended by Ordinance No. 4879 of Nov. 11, 2009) provides that in a residential area, the size of a building site that can be divided shall be at least 90 square meters. According to the evidence No. 1, it can be known that the specific use area of the instant area is a residential area. Accordingly, in the instant area, the said small parcel is the land of which the area

However, according to the statement in Gap evidence No. 3, among the land in the total of 142 parcels which the defendant originally classified as the small-scale parcel, it is necessary to determine the fact that the above land is less than 96.00 square meters (number 6 omitted), 96.00 square meters (number 7 omitted), 96.00 square meters (number 12), 96.00 square meters (number 8 omitted), 96.00 square meters (number 32), 93.00 square meters (number 10 omitted), 96.00 square meters (number 11 omitted), 96.00 square meters (number 46), 93.00 square meters (number 12 omitted), 93.00 square meters (number 81), 93.00 square meters (number 13 omitted), 93.00 square meters (number 86), and 1901300 square meters (number 14.15.05 square meters) and 91305.15 square meters (number).15.0.1.0

However, comprehensively taking account of the overall purport of Eul evidence Nos. 2 and Eul evidence Nos. 3 and 1 through 7, the following facts are located within the zone of this case: Black-dong (number 16 omitted), 89С (number 17 omitted), (number 17 omitted), 89С (number 18 omitted), (number 18 omitted), 89С (number 193 omitted), 86С (number 19 omitted), (number 20 omitted), 89С (number 194 omitted), (number 21 omitted), and (number 22 omitted), and (number 22 omitted, and (number 22 omitted), and the defendant did not assert that the above land is less than 90С and not less than 7 pieces of land on the ground that the above land is less than 90С, and thus, the above land on the ground that the above land on the land at the time of disposition of this case is less than 90С, and thus, the defendant did not have any ground for calculating the above land on the ground that it is less than 97 pieces.

Therefore, the insufficient parcels of the instant zone are 139 parcels (=142 parcels -10 parcels + 7 parcels).

The plaintiffs asserted clearly that part of the small portion of the land in the instant zone overlaps with the irregular and small-type parcel. However, according to the Gap evidence No. 3, the defendant can recognize the fact that the land overlapping the small and small-type parcel with the small-type parcel can be recognized as having been calculated only as one under single parcel in calculating the small-type parcel. Thus, the above argument is without merit.

2) According to the purport of Gap evidence No. 3 and the purport of the entire pleadings, the defendant can recognize the fact that the land whose area is less than 90 square meters is less than 90 square meters on the basis of the cadastral record is calculated on the basis of the insufficient parcel. Therefore, it cannot be deemed that the calculation standard

In addition, the defendant can decide whether to meet the requirements for the designation of the housing redevelopment area by strictly surveying all the land, etc. like the plaintiffs' assertion.

Therefore, the plaintiffs' assertion that the disposition of this case is unlawful is without merit, since the criteria for calculating the small parcel rate were ambiguous or the land was not directly surveyed within the district.

㈏ 부정형·세장형 필지 부분

1) Article 2 Subparag. 9 of the Act on the Maintenance and Improvement provides that “illegal or small-type parcel” shall be construed as “the land in one parcel is deemed virtually inappropriate as a building site because its size or shape exceeds the size prescribed in Article 23 of the Seoul Metropolitan Government Building Ordinance, or its form is excessively irregular or narrow and narrow.” In light of the language and text, it is determined that in light of the language and text, it delegated the authority to recognize illegal or small-type parcel to the Mayor by determining a certain scope, and thus, there is no ground for the plaintiffs’ assertion that the above provision

2) In addition to the overall purport of pleadings No. 1 and No. 4-1 and No. 4-2, the Defendant: (a) upon delegation under Article 2 subparag. 9 of the above Maintenance Ordinance, the Defendant: (b) formulated a parcel of land on February 13, 2007, based on Article 51 subparag. 5 (c) of the Enforcement Decree of the National Land Planning and Utilization Act; and (c) “illegal parcel of land”, based on Article 80 of the Enforcement Decree of the Building Act, shall be determined as a parcel of land whose size is less than five meters in size on the cadastral land; and (c) as a parcel of land whose size is less than 60 square meters in size (if the length of one side is at least five meters in length in one square); (c) formulated a standard for recognition that the parcel of land in the maintenance infrastructure already completed, such as a road, is excluded from the parcel of land subject to calculation (hereinafter “instant standard”); and (d) notified the fact that the Defendant first calculated as a parcel of land in this case may be recognized as an illegal zone.

According to the language and text of Article 2 subparagraph 9 of the above Ordinance on Maintenance, it cannot be deemed that an irregular or small-type parcel under the above provision should be publicly announced in advance, and according to the above fact of recognition, it can be seen that the standard of this case was in place prior to the disposition of this case and notified in the autonomous Gu.

In addition, in light of the content of the instant criteria, it is not deemed that the said criteria are arbitrary, unreasonable or unreasonable.

Therefore, the plaintiffs' assertion that the disposition of this case is unlawful because the criteria of this case was implemented by an internal official document without prior public announcement or its contents were convenient and arbitrary because they were in an administrative manner is without merit.

3) There is no evidence to acknowledge that 7 lots of land (146-148, 150-153) such as black land (number 3 omitted), black land (number 146), etc. are being used as a road. According to the overall purport of the statement and pleading evidence No. 3, the land category of the said 7 lots of land is the site or whole, and the Defendant included the said land in an irregular or small-type parcel of land in accordance with the instant standard based thereon.

In addition, according to the statement in Gap evidence No. 3, six lots of land (246-251), such as black land (number 4 omitted), etc. (number 246) is a road or school site, and the land category is a road or school site. The defendant can find out the fact that the above land is excluded from the calculation of an irregular or Sejong lot of land in accordance with the standard in this case.

According to each of the above facts of recognition, since the above land was calculated on an irregular or small-type parcel, the plaintiffs' assertion of mistake is without merit.

㈐ 과소필지율 재산정

The Plaintiffs’ assertion may not be deemed to be excluded from the calculation of a shortage of land solely on the ground that: (a) the land was constructed with a building permit obtained on or before September 23, 1992; (b) the land where a building was constructed with a building permit obtained; and (c) the land where the total site area is at least 90 square meters; and (c) the land combined with the adjacent site is at least 90 square meters and the total site is at least 90 square meters, and the relevant land constitutes the land where the building was constructed on that ground upon obtaining a building permit. Rather, if the Defendant satisfies the requirements for a shortage of land or an irregular or intangible parcel of land as seen earlier applied at the time of the instant disposition, the said land may be included in the calculation of a shortage of land pursuant to Articles 4(1)(c) and 2 subparag. 9 of the Act

Therefore, this part of the plaintiffs' assertion is without merit, which is premised on the fact that the shortage rate should be determined in accordance with the above criteria set by the plaintiffs.

㈑ 소결론

According to the above recognition, if the shortage rate of the parcel in the instant zone is re-calculated, 63.2% [(139 + 139 + an irregular or small-type parcel 11) ¡À237] shall be deemed to be 63.2%], and this satisfies the requirements that are above 40% of the shortage rate in the relevant laws and regulations as seen earlier, and therefore, there is no ground for the plaintiffs' assertion that the requirements for the underpaid parcel are not satisfied.

(5) As to the fifth argument (whether there was a error in calculating the water density)

㈎ 흑석동 (지번 5 생략) 지상 건물(75번), (지번 23 생략) 지상 건물(96번), (지번 5 생략) 지상 건물(215번), (지번 24 생략) 지상 건물(216번), (지번 25 생략) 지상 건물(220번)

In addition to the whole purport of the pleadings in Gap evidence No. 4, the fact that buildings No. 215, No. 216, No. 220 on the ground (number 5 omitted), No. 215, No. 216, and No. 220 on the ground (number 25 omitted), (number 5 omitted), and (number 23 omitted), there were buildings (number 5 omitted on the ground) on the ground, but each removed on November 20, 2007 and March 9, 207, although each of the above buildings was removed on the ground (number 5 omitted), the fact that the defendant calculated the housing density by deeming that each of the above buildings exists at the time of the disposition in this case. According to this, the above five buildings should be excluded from the calculation of the housing density.

㈏ 흑석동 (지번 23 생략) 지상 건물(95번), 흑석동 (지번 26 생략) 지상 건물(214번), (지번 27 생략) 지상 건물(217번), (지번 28 생략) 지상 건물(218번), (지번 29 생략) 지상 건물(219번), (지번 30 생략) 지상 건물(221번)

1) According to the statements or images in the evidence Nos. 5-1 and 2-2, the apartment house of the first and third floor above the ground (95) was completed on the black tin-dong (number 23 omitted) on August 20, 1993. Since the apartment house of the third floor above the ground was not recorded on the building ledger (the building was marked as an illegal building on May 12, 2006 and was removed on February 16, 2007), it can be recognized that there was a legitimate building on the above black tin (number 23 omitted) ground.

2) Article 2 Subparag. 5 (b) of the Maintenance Ordinance provides that “new-generating unauthorized buildings” shall be excluded from the calculation of the number of buildings without permission when calculating the housing density. Article 2 Subparag. 2 provides that “new-generating unauthorized buildings” shall be “unauthorized buildings other than the existing unauthorized buildings under subparagraph 1,” and Subparag. 1 (c) provides that “Unauthorized buildings with verification that they were constructed before December 31, 1981 on the public record, such as the property tax payment ledger,” and “non-authorized buildings with verification that they were constructed before April 8, 1982, which are residential buildings with a total floor area of 85 square meters or less in fact constructed before April 8, 1982 on the public record, such as the property tax payment ledger, shall be deemed as one of “existing unauthorized buildings”.

However, in addition to the purport of the pleadings and arguments in each description or image of the evidence Nos. 5-3 through 10, 6-1, 4, 5, 6, and 8 of the evidence Nos. 5-2, five buildings, such as blackstones (number 26 omitted), ground buildings (number 214 omitted), (number 27 omitted), ground buildings (number 217 omitted), (number 28 omitted), ground buildings (number 218 omitted), (number 29 omitted), ground buildings (number 29 omitted), (number 30 omitted), and (number 21 omitted, are constructed and managed in an unauthorized building ledger on or before April 8, 1982 (number 21) and the head of Dongjak-gu office may verify that the above building was a residential building that was constructed on or before January 1, 1982 to April 8, 1982 without permission, with the content that it is 85 square meters or less of the total floor area of the building).

Thus, the five buildings are "existing unauthorized buildings" under Article 2 subparagraph 1 (c) or (d) of the Maintenance Ordinance, which are subject to the calculation of housing density pursuant to subparagraph 5.

3) Therefore, since there are no buildings on each of the above lands, or there are “new unauthorized buildings”, this part of the plaintiffs’ assertion that all of them should be excluded from calculation of housing density is without merit.

㈐ 소결론

If the number density of the instant zone is re-calculated as recognized earlier, 65.4/h [=(233-5) ¡À3.31st, and less than two decimal places] is to be determined. This part of the Plaintiffs’ assertion to the effect that the requirements of the housing density are met under the relevant laws and regulations as seen earlier, and that this part of the Plaintiffs’ assertion to the effect that the requirements of the housing density are not satisfied is not reasonable.

D. Centrality

The disposition of this case is lawful and there is no reason for the plaintiffs' claim of this case disputing it.

3. Conclusion

All of the plaintiffs' claims shall be dismissed. The judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed on the grounds that there are no grounds.

[Attachment]

Judges Sung Pung-tae (Presiding Judge)