2011Guhap87666 The revocation of revocation of an application for designation of an urban development operator

Stiferer Partnership Inc.

Sungnam City

June 26, 2014

August 14, 2014

1. The plaintiff's lawsuit of this case is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

The defendant's rejection disposition against the plaintiff on May 2, 201 shall be revoked. The defendant's rejection disposition against the plaintiff on August 16, 201 against the plaintiff shall be revoked.

1. Basic facts

A. Es. Es. A proposed that the Defendant designate a single unit of 2458 Sinnam-dong 2458 (hereinafter referred to as “the site for the First Corporation”) as an urban development zone. On May 15, 2009, the Defendant designated the land size of 84,235 meters from the 2458 Sinnam-dong 2458, Sungnam-si as a Sinnam-si Urban Development Zone, and publicly announced it as an urban development project under Article 22 of the Urban Development Act (hereinafter referred to as “instant urban development project”).

B. After acquiring the right to the instant urban development project from the UNEA on November 20, 209, the Plaintiff entered into a loan agreement to the extent of KRW 370 billion with the next limited company, and on the same day, entered into a loan agreement to the extent of KRW 5 billion with the third-party limited company, and acquired the right to the amount equivalent to 92% of the site in the Seongbuk-Namnam Urban Development Zone. The Plaintiff filed an application with the Defendant on May 25, 2010 to the effect that it would be designated as the implementer of the instant urban development project, but the Defendant filed an application with the Gyeonggi-do Administrative Appeals Commission on July 6, 2010 and the Gyeonggi-do Administrative Appeals Commission revoked the above disposition of refusal on December 30, 2010.

D. Accordingly, the Defendant requested the Plaintiff to submit supplementary data, but the Defendant eventually rejected the Plaintiff’s application on May 2, 201.

E. Around June 7, 2011, the Plaintiff filed an application with the second Defendant for designation as an implementer of the instant urban development project, but the Defendant rejected the said application on August 16, 201 (hereinafter referred to as “each of the instant dispositions”).

F. Meanwhile, on May 29, 2012, the Defendant publicly announced to the effect that “The designation of an urban development zone for the Seongbuk-do Urban Development Zone shall be cancelled pursuant to Article 10(1)1 of the Urban Development Act because the application for the authorization of the implementation plan was not filed within three years from the date on which the designation and announcement was made.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 8, 9, 11, 12, Eul evidence Nos. 1, 2, 3, 5, 6, 7 (including evidence number, if any), witness Gap's testimony, and the purport of whole pleadings

2. Judgment on the main defense of this case

A. The defendant's assertion

1) The designation of an implementer of an urban development project is premised on the designation of an urban development zone. The first Corporation’s site was designated and publicly announced as a Seongdong-do Urban Development Zone on May 15, 2009. However, since the designation of an urban development zone was cancelled pursuant to Article 10(1)1 of the Urban Development Act (hereinafter “Act”) since the application for authorization of an implementation plan was not filed by May 15, 2012, the third year thereafter, the Defendant cannot designate the Plaintiff as an implementer of the urban development project of this case. Thus, the Plaintiff’s lawsuit in this case is unlawful as there is no benefit of lawsuit.

2) Article 11(1)5 of the Act provides that in the case of expropriation or use under Article 21 of the same Act, a person who owns at least 2/3 of the land area excluding the state-owned and public land in the urban development zone may become an implementer of the urban development project. While the Plaintiff owned not less than 2/3 of the total area of not less than 74,146.6m of the land for the 80,534m of Seongdong-Namnam National Development Zone on March 27, 2012 and owned not less than 2456, 2460-3, 2461-2, 2461-3, and 2461-3 of the same Act, which is part of the plan, the Plaintiff cannot be subject to revocation of the Plaintiff’s qualification as the implementer of the urban development project, even if the Plaintiff did not own the land for the 80,534m of the present urban development zone, and thus, the Plaintiff cannot be subject to revocation of the Plaintiff’s qualification as the implementer of this case.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Examining the relevant provisions, “urban development project” refers to a project implemented to create a complex or market with functions such as residence, commerce, industry, distribution, information and communications, ecology, culture, health, welfare, etc. in an urban development zone (Article 2(1)2 of the Act). An urban development zone may be designated when a planned urban development is deemed necessary by the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Do Governor, a Special Self-Governing Province Governor, and a Mayor of a large city with a population of at least 50,000 (hereinafter referred to as “rightholder”).

If a designating authority intends to designate an urban development zone, he/she shall formulate a plan for an urban development project for the relevant urban development zone (hereinafter referred to as "development plan"), (Article 4(1) of the Act), if a designating authority designates an urban development zone or formulates a development plan, he/she shall publicly notify such designation in the Official Gazette or Official Gazette (Article 9(1) of the Act), and the designating authority shall designate an implementer of an urban development project from among the persons prescribed by the subparagraphs of Article 11(1) of the Act, such as

An implementer shall prepare an implementation plan for an urban development project (hereinafter referred to as "implementation plan") and obtain authorization from the designating authority (Article 17(1) and (2) of the Act), and if an implementation plan is not applied for by the third anniversary from the date of designation and announcement of an urban development zone, the designation of an urban development zone on the day following the third anniversary thereof shall be deemed cancelled (Article 10(1)1 of the Act).

2) As to the instant case, as acknowledged earlier, the Defendant, who is the designating authority authority authority of Sungnam Urban Development Zone, designated one site for the Corporation as Sungnam Urban Development Zone, May 15, 2009, and announced it after establishing a development plan. The Plaintiff applied for designation as an implementer of the instant urban development project, but the Defendant rejected the said application as in each of the instant dispositions. The Defendant announced that the designation of the instant urban development project was cancelled pursuant to Article 10 (1) 1 of the Act on May 15, 2009 because it was not applied for the authorization of the implementation plan for the instant urban development project from May 15, 2012 to May 15, 2012, since the designation of the said urban development zone was premised on the designation of the urban development zone, it cannot be designated as an implementer of the instant urban development project if the designation of the urban development zone was cancelled. Ultimately, the Plaintiff’s lawsuit of this case cannot be deemed unlawful as the Plaintiff’s cancellation of the designation of the instant urban development zone.

3) As to this, the plaintiff can bring an action even in the latter part of Article 12 of the Administrative Litigation Act that "if there is a legal interest that can be recovered due to the cancellation of the disposition, etc. even after the effect of the disposition, etc. was extinguished due to the lapse of the period, execution of the disposition, etc., and other reasons, it shall be included in "legal interest restored due to the cancellation of the above disposition, etc.". Thus, the plaintiff's lawsuit of this case is still asserted to the purport that there is a legal interest in the lawsuit of this case, but even if there is a prior judgment for the cancellation of the administrative disposition, it is not possible to bring an action for damages on the ground that the administrative disposition is illegal (see Supreme Court Decision 72Da337, Apr. 28, 1972), separately from the lawsuit of this case, against the public officials belonging to the defendant in relation to the cancellation of the designation of the Seongbuknam Urban Development Zone, and the court can determine whether the defendant's public officials are liable to compensate regardless of the outcome of the lawsuit of this case.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it is decided as per Disposition.

The presiding judge, senior judge and senior secretary

Judges Han-hane

Judges Kim Gin-American

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.