In a case where Party A promoted the designation of Class 2 district unit planning zone for a site including land owned by Party B, and Company B conducted relevant procedures on trust, but the designation of the planning zone was revoked and the above site was designated as a conservation management area, Party B claimed damages against the local government Party A for violating the principle of trust protection, the case holding that Party A cannot be held liable for damages

In a case where Gap local government promoted the designation of Class II district unit planning zone for a site including land owned by Eul corporation, and Eul company conducted the relevant procedure by trust, but Eul filed damages against Eul local government for violating the principle of protection of trust and trust against Gap local government when the designation of planning zone was revoked and the above site was designated as a conservation management area, the case holding that Eul company cannot be seen as fully attributable to Gap local government because it is not sufficiently attributable to Gap company, on the grounds that the requirement of the administrative agency's explanation in order to apply the principle of protection of trust and trust to the act of the administrative agency is necessary, and there is a need for public development, there is a change in the necessity of public development, and the development of local government is conducted with whom the proposal and main intent is made, and how the legal authority is allocated, and there is only unilateral instruction and disposition, negotiation, consultation, and information exchange in the process, and it cannot be seen that Eul company's designation of planning zone cannot be fully determined by various factors such as approval of the basic urban planning committee under the Ministry of Construction and Transportation and the decision of superior administrative agencies of Gap.

Article 2 of the State Compensation Act, Article 750 of the Civil Act, Article 4(2) of the Administrative Procedures Act

Muri Development Co., Ltd. (Law Firm Cheongn Law, Attorneys Choi Jae-joon, Counsel for the plaintiff-appellant)

Kimhae-si (Law Firm Multirate, Attorneys Kim Yong-mun et al., Counsel for the defendant-appellant)

Changwon District Court Decision 2010Gahap5717 decided May 30, 2013

May 28, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 2,981,102,80 won with 5% per annum from January 1, 2009 to the date of the judgment of the appellate court, and 20% per annum from the next day to the date of full payment (the plaintiff shall be the cause of the defendant's tort in the first instance court, and the plaintiff shall be 10,000,000 won per annum from the day following the day of delivery of the copy of the complaint of this case to the day of the first judgment, and 5% per annum from the next day to the day of full payment, and 20% per annum from the next day to the day of the next day to the day of full payment, the plaintiff shall be 5% per annum from the next day to the day of the first judgment, and 20% per annum from the next day to the day of delivery of the copy of the complaint of this case to the day of full payment (the plaintiff shall be 10% per annum from the next day to the second day of the first instance judgment to the day of this case's claim.

1. Acknowledgement of the first instance judgment

The reasoning for this Court’s explanation concerning this case is as follows, except for adding the following judgments as to the assertion or evidence that the Plaintiff submitted to supplement or add to the court of first instance, and thus, it is identical to the part of the reasoning of the court of first instance. Thus, this Court cites this case’s summary as it is in accordance with the main sentence

2. Additional matters to be determined

A. Summary of the plaintiff's assertion

The plaintiff asserts that, following the first instance court and the first instance court, the defendant's "unlawful act" was the cause of the claim, and the defendant, through the following acts of worship, etc., inflicted damage on the plaintiff.

① Although the instant site could have been approved by the method of individual site from the beginning, the Plaintiff sold the site to an enterprise wishing to move back from the beginning by dividing it into individual lots, the Defendant, as the competent administrative agency, takes precedence over the position of the drafting authority of the Class II district unit planning zone, and deprived the Plaintiff of the opportunity for individual sales by deceiving the Plaintiff as if it is impossible to approve the establishment of a factory by such individual method. On the other hand, the instant site was described as if it were to be designated as the Class II district unit planning zone (hereinafter “instant planned zone”), thereby inducing the Plaintiff to the said proposer, and excessively imposing an excessive burden on the Plaintiff (the Defendant, during that process, designated the Plaintiff as the developer of the instant site development project by law and fact-finding).

② According to the National Land Planning and Utilization Act, notwithstanding the authority to formulate an urban management plan, the Defendant, as the Do governor, has the authority to determine the plan. However, the Defendant, as he acted as if the Defendant had such right to make a decision, has trusted that the instant site was naturally designated as the instant planning zone.

③ The Defendant, which was a pending issue at the time, tried to resolve by attracting the Plaintiff, who was the owner of the instant site, the complaints by the removal enterprises wishing to move to a factory due to the housing site development project at a rate, and the issue of substantial recovery within the old Quarrying site. However, prior to finding any trouble in resolving the pending issue, the Defendant unilaterally withdrawn the designation of the instant planned zone, which promised to the Plaintiff to a certain extent.

④ Conditional approval of “basic urban planning” that restricts the allocation of the instant site to the instant planning zone by the Central Urban Planning Committee established under the Ministry of Construction and Transportation was possible according to the Defendant’s intent, but did not actively prevent the Defendant from allocating the instant site to the instant planning zone.

⑤ In addition, since the instant site is not a “undeveloped land”, even if based on the basic urban planning that obtained conditional approval from the Central Urban Planning Committee, it does not necessarily have any need to designate it as a “Preservation Management Area”, the Defendant voluntarily designated most of the instant site as a conservation management area without any principle or standard.

(6) Even when the designation of the instant planning zone as to the instant site is interrupted and it is designated as a conservation management area, the Defendant did not make any other lawful notification in accordance with the legal procedure, even though it only sent a formal notice to the Plaintiff’s head office, which contained such content only once to the Plaintiff’s head office, and was not served on the Plaintiff due to the addressee’s unknown whereabouts.

B. Judgment of the court below

1) In order to apply the principle of the protection of trust to an act of an administrative agency, the requirements such as the name of an administrative agency’s opinion that is justifiable and trusted need not be attributable to the individual. The reason attributable to the above requirements should be interpreted to mean the case where the administrative agency knew or did not know due to gross negligence. The existence of a cause attributable to an administrative agency should be determined based on all relevant persons, such as the other party and the person entrusted with the application (see Supreme Court Decision 2001Du1512, Nov. 8, 2002, etc.).

In addition, since the general law based on the plaintiff's argument requirement facts is Article 2 of the State Compensation Act and Article 750 of the Civil Act, it is necessary to prove the fact that the local government can be held liable not to cancel administrative disposition, but to prove the requisite fact that the local government can be held liable for compensation. Furthermore, it can be one of the data when determining the existence of liability for compensation, such as who has much knowledge and information in the development of the local government that takes place over a long-term period, how much public development is needed, how the local government is conducting as a proposal or a state, how the legal authority is allocated, how only unilateral instruction and disposition exists in the process, and how

2) The following circumstances revealed by comprehensively taking account of each evidence and newly examined evidence in the first instance trial, i.e., the Plaintiff appears to be an enterprise with considerable expertise and knowledge in the field of real estate development-related laws and the practical affairs of the administrative agency following them (it is not only the Plaintiff voluntarily asserted that it is a door to the urban planning and development field, but also the Plaintiff’s active role as the proposer from the first stage of promoting the designation of the planning zone, and it is difficult to view it as above in light of the circumstances directly and indirectly involved in the resolution of the civil petition situation against the Defendant (the testimony of the Nonparty in the first instance trial witness). ② If the instant site is designated as the planning zone, the Plaintiff who already owned the instant site can sell it more individually on the premise of the establishment of a factory site by individual site method, and thus, the Plaintiff appears to have actively participated in the process of implementing the instant plan as a party with the largest economic interest in the designation of the planning zone, i.e., the Plaintiff’s change of the planning zone to the extent that its designation would occur within the Busan Metropolitan City Planning Plan.

3) Each statement of evidence Nos. 156-1 through 166 submitted by the Plaintiff at the trial of the party concerned and the evidence of the first instance trial alone are insufficient to deem that the Defendant illegally promoted the designation of the instant planning zone as to the instant land from the beginning, or waivered the designation of the said planning zone and designated the said site as the conservation management area with the intent to inflict any damage on the Plaintiff during the designation of the said planning zone. Even if the Defendant waived the designation of the said planning zone to avoid criticism of public opinion and environmental organizations, etc. that would be followed by the designation of the said planning zone and designated the designation as the conservation management area, such circumstance alone alone does not necessarily lead to the conclusion that the Defendant’s above disposition with discretion in the administrative act deviates from, abused, or abused the discretion, or immediately constitutes a tort against the Plaintiff. Accordingly, it is difficult to accept any other premise.

4) Furthermore, comprehensively taking account of the purport of evidence No. 81-1, evidence No. 82, evidence No. 81, and evidence No. 5, the defendant renounced the designation of the planning zone of this case to the plaintiff and did not actively notify the situation before and after the designation as the conservation management area, but it is acknowledged that the plaintiff also has the largest interest in the designation of the planning zone and did not fulfill the duty of care in social norms to continuously and actively inquire into and grasp the process of implementation. Even according to the plaintiff's assertion itself, it is insufficient to find that the defendant's above error contributed to the occurrence or expansion of the damage of this case. Thus, this part of the plaintiff's assertion is without merit.

5) As a result of the Plaintiff’s belief of the Defendant’s speech and behavior, the Plaintiff suffered losses by giving an opportunity to sell the above site at a price prior to the designation of the conservation and control area before the market price drops, and the above site used development costs, etc. to be designated as the planning area of this case, and the Defendant also claimed that the Plaintiff should compensate the Plaintiff for losses equivalent to the market price difference and the above expenditure amount. However, the failure to sell the instant site is merely the result of the Plaintiff’s reasonable and stegrative choice taking into account the future development gains, and there is no circumstance that the Defendant prohibits or interferes with the Plaintiff’s sale to the extent that it constitutes a tort. As seen earlier, the Plaintiff’s above assertion is without merit as to the amount of damages, etc.

6) Therefore, it is difficult to accept the Plaintiff’s assertion either arranged for the first time in the trial or filed for addition.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Jong-gu (Presiding Judge)