2011Nu32463 Revocation of a report on the establishment of crematory facilities;

미륵암

Kimpo-market

Incheon District Court Decision 2011Guhap93 Decided August 24, 2011

March 23, 2012

April 27, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Each disposition taken by the Defendant against the Plaintiff on November 29, 2010 for the return of the report on the establishment of crematory facilities (hereinafter referred to as “instant disposition”) and for the return of the report on the establishment of crematory facilities to the Plaintiff on April 11, 2011 shall be revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought revocation of the instant disposition and the Defendant’s revocation of the return of the report on the establishment of crematory facilities reported to the Plaintiff on April 11, 201. On April 11, 2011, the first instance court dismissed the Defendant’s lawsuit against the Plaintiff on the claim for revocation of the return of the report on the establishment of crematory facilities reported to the Plaintiff, and accepted the part of the claim for revocation. The Defendant’s appeal was lodged only against this, the subject of the judgment of the lower court is limited to the claim for revocation of the instant disposition.

2. Details of the disposition;

A. On March 1, 2006, the Plaintiff received a report on the installation of crematory facilities from January 21, 2008 to the Defendant on the second floor of the building (the first unit; hereinafter referred to as the “instant building”) on the second floor of the building (the first unit; hereinafter referred to as the “instant building”) under the same 237-1, and 237-2 above, on October 28, 201, in which the Plaintiff had been operating the charnel facilities for temples and religious organizations in the third floor of the building of the 3rd floor of the Kimpo-si, Kimpo-si, Kimpo-si.

B. On November 29, 2010, the Defendant rendered the instant disposition against the Plaintiff to return the report on installation of crematory facilities for the following reasons.

:

Pursuant to Article 43 (Restrictions, etc. on the Form of Buildings), subparagraph 12 of attached Table 17, and subparagraph 20 of attached Table 18 of the Ordinance on Kimpo-si Urban Planning, it is possible to location the relevant facility only

(a) Subparagraph 12 of attached Table 17 (any building allowed to be constructed within the preservation management area);

: Graveyard-related facilities (excluding crematory facilities)

(b) Subparagraph 20 of attached Table 18 (any building allowed to be constructed within the production control area);

: Graveyard-related facilities (excluding crematory facilities)

C. On April 11, 2011, the Defendant amended and notified the Plaintiff of the grounds for rejection of the instant disposition as follows.

:

A. Under the provisions of Article 30 of the Ordinance on the Urban Planning of Kimpo-si and subparagraph 20 of attached Table 18 (other than crematory facilities (other than crematory facilities) of the Enforcement Decree of the Building Act, crematory facilities may not be constructed.

B. In addition, since the use of the present building is the wings among graveyard-related facilities, the alteration of the use of the building should be prior to the subsequent re-application.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 5 (including each number), Eul evidence 1 and 2, the purport of the whole pleadings

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons (the grounds cited by the Plaintiff are that it is prior to the change of use, not the grounds for the instant disposition, under Article 43 of the Ordinance on Kimpo-si Urban Planning (hereinafter referred to as the “Ordinance”) or the grounds for the instant disposition, and thus, it does not affect the determination on the legitimacy of the instant disposition).

1) The instant disposition did not present the reason under Article 23 of the Administrative Procedures Act.

2) The provisions except crematory facilities in [Attachment 18] No. 20 of the instant Ordinance, which served as the basis for the instant disposition, exceeded the scope of restriction prescribed by the National Land Planning and Utilization Act, which is a superior law (hereinafter “National Land Planning Act”), and is null and void due to lack of legitimacy in the legislative process and legislative intent.

3) Even if the provisions of the Ordinance amended with the exception of crematory facilities are valid, the instant disposition violated Article 93(2) of the Enforcement Decree of the National Land Planning and Utilization Act and Article 13-2 of the Enforcement Rule.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether there is a defect in the grounds

However, even if an administrative agency written only a statute based on the disposition while rendering the disposition, the facts corresponding to the pertinent provision can be naturally known (see, e.g., Supreme Court Decision 2001Du7138, Feb. 5, 2002).

According to the above facts, it can be sufficiently known that the disposition of this case was made on the grounds that the crematory facility reported by the Plaintiff was not a building that can be constructed within the production management area stipulated in Article 30 subparag. 18 and [Attachment 18] subparag. 20 of the Ordinance of this case (hereinafter referred to as the "Ordinance Clause of this case"), so the plaintiff's assertion about this is without merit.

2) Whether the provisions of this case are invalid

According to the above recognition, it can be known that the instant disposition is based on the provisions of the instant Municipal Ordinance, and therefore, we first examine whether the instant Municipal Ordinance provisions are invalid in violation of the superior laws and regulations.

A) Legal nature of the receipt of reports on the establishment of private crematory facilities

Article 8(2) of the former Enforcement Decree of the Burial and Graveyard, etc. Act (amended by Act No. 6158, Jan. 12, 200; hereinafter “former Act”) provides for matters concerning burial, cremation and reburial, and installation, management, etc. of charnel facilities. However, the former Enforcement Decree of the Burial and Graveyard Act (amended by Act No. 6158, Jan. 12, 200; hereinafter “former Act”) amended the title to the Act on Funeral Services, etc. (hereinafter “the Funeral Act”), relaxed the report on installation of private crematory facilities as permitted under Article 8(2) of the former Act (Article 15(1)); the purport of such amendment; the method of installation, creation, and management, etc. of cremation facilities; the purpose of this Act is to prevent any harm to public health and sanitation and promote the efficient utilization of land and public welfare (see Article 15(2) of the Enforcement Decree of the same Act); the State and local governments, which provide for the same purpose as the establishment of cremation facilities to the effect that such installation should be reported and public health and welfare facilities.

B) The validity of the instant ordinance provisions

Article 117(1) of the Constitution, Article 22 of the Local Autonomy Act, and Article 22 of the same Act, respectively, shall be deemed null and void in light of the following circumstances, which are acknowledged by comprehensively considering the above evidence and the overall purport of the statements and arguments set forth in subparagraphs 6 through 15 (including paper numbers), and Article 117(1) of the Ordinance, and Article 22 of the Local Autonomy Act shall be deemed null and void.

(1) Of the instant land, the part for which the Plaintiff wishes to install a crematory facility falls under a production management area under Article 36(1)2 (b) of the National Land Planning Act. The part for which the Plaintiff among the instant land is entitled to construct a crematory facility as a graveyard-related facility under Article 3-4 [Attachment 1] 26 of the Enforcement Decree of the Building Act with respect to restrictions on its use, type, size, etc. as prescribed by Article 76(1) of the National Land Planning and Utilization Act, and Article 71(1)18 and [Attachment 19] 2 of the Enforcement Decree of the same Act. Therefore, it is reasonable to deem that the Defendant’s exclusion of the entire crematory facility from graveyard-related facilities beyond restricting the use, type, size, etc. of a crematory facility, which is a graveyard-related facility, exceeds the scope delegated by the National Land Planning and Utilization Act, barring any special circumstance (the Defendant excluded a crematory facility from a building that can be constructed within a production management area through the amendment of the Urban Planning Ordinance on April 14, 2019, excluding the graveyard-related facilities.

(2) ① The land of this case does not fall under the area where the installation and creation of crematory facilities are restricted under each subparagraph of Article 17 of the Funeral Act and Article 22(4)1 through 10 of the Enforcement Decree of the same Act; ② unlike the attached Table 3 of Article 18(1) of the Enforcement Decree of the Funeral Act, there is no such restriction provision regarding private crematory facilities, and ③ therefore, the legal grounds for restricting the installation of private crematory facilities on the land of this case are only Article 22(4)11 of the Enforcement Decree of the Funeral Act, which may cause harm to public health and sanitation due to the collapse, flood, etc., and it is reasonable to determine the scope of the area where the above urban planning ordinance of the National Land Planning and Utilization Act limits the construction of crematory facilities to public health and sanitation, etc., and it is also reasonable to determine the scope of the area where the above urban planning ordinance of the National Land Planning and Utilization Act permits the installation of such facilities within the scope of the area to be limited to the public health and hygiene, etc.

C) Determination on the Defendant’s additional argument

In the first instance, the Defendant added to the assertion that the instant disposition is lawful on the grounds that the instant crematory facility is contrary to the mid- and long-term plan for the supply of and demand for crematory facilities of the Defendant and may infringe on the environmental rights and property rights of neighboring residents.

As seen earlier, the instant disposition grounds for deeming that the instant crematory facility is in violation of the provisions of the Ordinance of this case. As such, the Defendant’s assertion in addition to the instant disposition cannot be deemed identical to the instant disposition’s grounds and basic facts. Therefore, the Defendant’s assertion that the instant disposition is lawful on the grounds stated above is not permissible.

Even if the grounds for the disposition of this case and basic factual relations are the same, in light of the following circumstances, i.e., ① the descriptions of the evidence and the entire arguments as seen above, it is difficult to view the instant crematory facility as contrary to the mid- and long-term plan for the supply and demand of the Defendant’s crematory facility, ② the increase in demand for crematory facility due to the rapid increase of the deceased and the changes in perception of funeral culture following the aging, etc., the State also takes measures to allow the installation of cremation in the funeral hall and promote installation of cremation in the private sector through subsidization of expenses for cremation. ③ The instant crematory facility appears not to be provided to the public as a crematory facility for the new roads, and ④ In light of the following circumstances, it is difficult to view that the instant crematory facility is considerably far away from the village in which the residents reside, as well as the access roads are used differently from the roads leading to the village.

Therefore, the defendant's above assertion cannot be seen as a mother or acceptable.

D) Sub-determination

As long as the provision of this case is null and void as seen above, without considering the remaining arguments of the Plaintiff, the instant disposition based on the provision of this case is unlawful.

4. Conclusion

Therefore, the part of the plaintiff's claim for the cancellation of the disposition of this case shall be cited for the reasons, and since the part of the claim for cancellation of the disposition of this case among the judgment of the court of first instance is justified, the defendant's appeal of this case is dismissed as it is without merit. It

Judges Kim Jae-soo

Judges Choi Young-man

Judges Yu Dong-dong

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.