[1] Whether the legal principles as to the limitation of freedom to form, which an administrative body has at the time of formulating and determining a specific administrative plan, are equally applied to the case where a decision on an urban management plan is made by accepting a proposal or an application for modification of the plan for the formulation of residents or an alteration thereof

[2] In a case where Gap et al. filed an application for cancellation of his own land from a buffer green belt, which is an urban planning facility, but the head of the competent Gu rejected such application, the case affirming the judgment below that the above disposition constitutes a case where Gap's failure to balance interests or lack legitimacy and objectivity of balancing interests while formulating and determining administrative plans

[1] The freedom of a relatively broad formation, which an administrative body has at the time of formulating and determining a specific administrative plan, is not unlimited, but is limited to the legitimate comparison between public and private interests as well as between public and private interests. Thus, in a case where an administrative body does not implement the balancing of interests at all while formulating and determining the administrative plan, or where it lacks legitimacy and objectivity while balancing of interests, the administrative agency’s decision on the administrative plan is unlawful in the balancing of interests. This legal doctrine also applies to a case where an administrative body determines whether to accept a proposal to formulate an urban management plan under Article 26 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009), and furthermore, where a resident who owns land, etc. in an urban planning facility zone applies to the right to request a change of urban planning facilities that have not been executed for a long period of time, and a resident who has the right to make a decision on the urban planning facilities should also accept such change.

[2] In a case where Gap et al. filed an application for cancellation of their own land from a buffer green belt, which is an urban planning facility, but the head of the competent Gu rejected the application, the case affirming the judgment below that the above disposition is a case where the exercise of property rights by Gap et al. is excessively restricted to the exercise of property rights by the buffer green belt, and it does not constitute a case where the balancing of profits was not made at all or where the legitimacy and objectivity of the balancing of profits was lacking, on the grounds that the public interest needs

[1] Article 27 of the Administrative Litigation Act, Article 26 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) / [2] Article 27 of the Administrative Litigation Act, Article 26 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009)

[1] Supreme Court Decision 96Nu8567 decided Nov. 29, 1996 (Gong1997Sang, 210) Supreme Court Decision 2005Du1893 decided Apr. 12, 2007 (Gong2007Sang, 711) Supreme Court Decision 2010Du21464 decided Feb. 24, 201 (Gong201Sang, 657)

Plaintiff 1 and three others (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Goyang Market (Law Firm TLBS, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu18631 decided February 10, 2010

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. The term “administrative plan” means the establishment of an activity criteria to realize a certain order at a certain point in the future by integrating and coordinating related administrative means to achieve a specific administrative objective, such as the construction, maintenance, and improvement of a city, based on professional and technical judgments regarding administration. The relevant Acts and subordinate statutes only provide abstract administrative goals and procedures, but do not provide any particular provision regarding the contents of the administrative plan, and thus, the administrative agency has a relatively broad freedom in formulating and determining a specific administrative plan. However, there is a limitation that the freedom of formation, which the administrative agency has, is not unlimited, but also limited not only to the public interest and private interest of the persons related to the administrative plan, but also to the mutual interest and private interest between the public interest and private interest. Thus, if the administrative agency establishes and determines the administrative plan, the administrative plan’s decision is defective in imposing the benefits, or where the administrative plan’s decision is omitted, but it lacks legitimacy and objectivity (see, e.g., Supreme Court Decision 200Nu164, Apr. 26, 1996).

The foregoing legal doctrine also applies to a case where an administrative body accepts a proposal for the formulation of an urban management plan by a resident under Article 26 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) and decides whether to make a decision on an urban management plan (see, e.g., Supreme Court Decisions 2009Du16978, Feb. 11, 2010; 2009Du21499, Mar. 25, 2010). Furthermore, the foregoing legal doctrine also applies to a case where a person who owns land, etc. in an urban planning facility zone applies for the alteration of urban planning facilities with respect to a person who has determined urban planning facilities for which a long time has not been executed by a resident who owns land, etc. in the urban planning facility zone, and the decision-making

2. After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that the instant disposition rejecting the Plaintiffs’ claim for the cancellation of the instant land from a buffer green belt is excessively restricted to the Plaintiffs’ exercise of property rights, and thus, the lower court did not completely implement the balancing of interests in drafting and determining administrative plans or lack legitimacy and objectivity of the balancing of interests.

In light of the above legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors of misapprehending the legal principles as to deviation and abuse of discretionary power in administrative plans, violating the logical and empirical rules, and violating the principle

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)