[1] The legal nature of a building permit within a development-restricted area under the former Urban Planning Act (i.e., discretionary act or discretionary act), and whether a father is permitted (affirmative) and its content limitations

[2] In a case where the original time limit attached to a license is not unfairly short due to the nature of the permitted business, whether it is possible for an administrative agency with discretionary power to decide whether to grant permission pursuant to the provisions of the relevant statutes to deny the extension of time period (affirmative)

[3] The case holding that an administrative agency with discretion to permit development activities within a development restriction zone cannot be deemed as a deviation or abuse of discretionary power on the ground that it rejected an application for extension of the permission period

[1] In light of the provisions of Article 21 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), Article 20 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16891 of Jul. 1, 200), and Articles 7 and 8 of the Enforcement Rule of the same Act (amended by Presidential Decree No. 245 of Jul. 4, 2000), development activities, such as construction of buildings and construction of structures, etc., are prohibited in principle for the purpose of designating a district within a development-restricted zone. However, in specific cases where the purpose of designating a district is not violated, it is clear in light of the structure and language of the provision, and the permission for such exceptional development activities falls under the act of discretion or discretion, and thus, the legal nature of the permission belongs to the act of discretion or discretion, and the implementation of the administrative disposition can be justified unless there is an express provision prohibiting such discretion, unless it is in accordance with the relevant Acts and subordinate statutes.

[2] Generally, where the effective period of an administrative disposition is determined, the effect of the administrative disposition shall be invalidated upon the lapse of the permitted period. However, if the time period attached to the permission is unreasonably short due to the nature of the permitted business, it may be interpreted that the time period shall not be the duration of the permission itself, but the time period shall be deemed the duration of the permission itself, and thus, the amendment of the condition shall be considered. However, if the time period originally attached is not the duration of the permission itself, but the time period of the permission shall be considered as the whole duration including the extended time period, and if the time period is deemed as the whole duration of the permitted business, it shall not be considered as unfairly short due to the nature of the permitted business, and if the time period does not fall under any more unreasonably short of the permitted business due to the nature of the permitted business, the amendment of the conditions of the permission shall not

[3] The case holding that an administrative agency with discretion to permit development activities within a development restriction zone shall not be deemed to have exceeded and abused its discretionary authority on the ground that it rejected an application for extension of the permission period

[1] Article 21 of the former Urban Planning Act (repealed by Act No. 6243, Jan. 28, 200; Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002); Article 20 of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891, Jul. 1, 2000; repealed by Presidential Decree No. 17816, Dec. 26, 2002); Enforcement Rule of the former Urban Planning Act (amended by Presidential Decree No. 2455, Jul. 4, 200; Enforcement Rule of the former Urban Planning Act (repealed by Ordinance No. 345, Dec. 31, 200); Article 27 of the Administrative Litigation Act / [General Administrative Disposition] Article 1 of the Administrative Litigation Act / [3] Article 1 of the Administrative Litigation Act

[1] Supreme Court en banc Decision 90Nu8688 delivered on October 11, 1991 (Gong1991, 2737), Supreme Court Decision 96Nu1698 delivered on March 14, 1997 (Gong1997Sang, 1140), Supreme Court Decision 96Nu1313 delivered on June 24, 1997 (Gong1997Ha, 2183), Supreme Court Decision 98Du8759 delivered on September 8, 1998 (Gong198Ha, 2437), Supreme Court Decision 96Nu549 delivered on October 24, 1998 (Gong1998Ha, 2437), Supreme Court Decision 209Nu2979 delivered on October 23, 2019 (Gong1998Ha, 2608).

Dong AD Construction Industry Co., Ltd. (Attorney Choi-soo, Counsel for the plaintiff-appellant)

Hanam market (Law Firm One, Attorneys Shin-ok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Nu17899 delivered on October 14, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. According to the records and reasoning of the judgment of the court below, the company prior to the bankruptcy (hereinafter referred to as the "Plaintiff company") was unable to extend the above aggregate production period of 1.2 years for 9 years on December 6, 1978 and 25 lots of land (hereinafter referred to as the "permission of this case") with 97,147 square meters on the ground that the above aggregate production facilities were 90,000 square meters wide-type factories including buildings, offices, warehouses, etc. for 90,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000 square meters long-term 9,000

2. We examine the grounds of appeal.

A. Regarding ground of appeal No. 1

Article 21 of the former Urban Planning Act (wholly amended by Act No. 6243 of Jan. 28, 200) and Article 20 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 16891 of Jul. 1, 200) and Articles 7 and 8 of the Enforcement Rule of the same Act (wholly amended by Presidential Decree No. 245 of Jul. 4, 2000), in principle, development activities, such as construction of buildings and construction of structures, are prohibited within development-restricted areas for the purpose of designating zones. However, in specific cases where such activities do not go against the purpose of designating zones, it is clear in light of the structure and language of the provision, and since the permission for such exceptional development activities is nothing more than beneficial to the other party, the legal nature of the permission belongs to discretionary or discretionary acts, and thus, it is possible to declare that such activities are not in compliance with the principle of proportionality 196 days or more, and the principle of proportionality 197.

In light of the above legal principles and the nature of the time limit of this case, it cannot be deemed unlawful to attach the time limit of five years to the original permission of this case. Thus, the judgment of the court below in the same conclusion is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the omission of administrative act or incomplete hearing, as otherwise alleged in the ground of appeal

B. Regarding ground of appeal No. 2

In general, if the effective period of an administrative disposition is determined, the administrative disposition shall lose its effect upon the expiration of such period (see, e.g., Supreme Court Decisions 89Nu1032, Nov. 12, 1990; 94Nu14148, Oct. 17, 1995; 99Du5153, Jun. 25, 1999): Provided, That if the period to be attached to the permission is unreasonably short of the permitted period due to the nature of the permitted business, the period shall not be the period of the permission itself, but shall be deemed the period of the permission, and the revision of the condition shall be considered to have arrived at the expiration of the period (see, e.g., Supreme Court Decisions 4293Nu42, Feb. 22, 1962; 94Nu1866, Nov. 10, 1995; 2000Du1866, etc.).

As seen in the instant case, aggregate extraction related to the Han River General Development Project was conducted over a long-term of 20 years even based on December 6, 1978, which is the date of the instant permission. The instant permission was to produce ready-mixeds as raw materials in parallel with the extraction of aggregate pursuant to the Han River General Development Project. The manufacturing plant is originally a premise for installation of large-scale facilities in the nature of the business that produces ready-mixeds as raw materials, and it is expected that a certain long-term continuity is expected to be expected, and the Plaintiff company's ready-mixed production plant was a large-scale facility. In light of the fact that the five-year period originally attached to the instant permission falls under a case of unfairly short of the period of permission itself, not the duration of the terms of permission. However, the lower court determined otherwise that the five-year period initially attached to the instant permission does not fall under the case unfairly short of the period of permission due to the nature of the business, and did not err by misapprehending the legal principles on the nature of the permission.

However, as seen earlier, the aggregate extraction pursuant to the Han River comprehensive development project is gradually decreased and the aggregate extraction has not been recovered at all after 199. Since then, according to the trend of aggregate extraction pursuant to the Han River comprehensive development project, the period of permission of this case has been extended over five times every five years, and the period of permission of this case has been extended over five times every one year after 1994, and eventually, the period of permission of this case has reached 22 years in total. As such, the period of permission of this case has been extended up to 31 December 31, 1999, the period of permission of this case finally extended shall be deemed not to fall under a case where the period of permission of this case is unreasonably short due to the nature of the permitted project. Accordingly, it shall be deemed that the permission of extension of the period may not be revised, but the permission of extension of the period of permission of this case may be permitted. Accordingly, the judgment of the court below is justifiable as a result of examining whether the disposition of this case, which was rejected on the premise that it is possible.

C. Regarding ground of appeal No. 3

Even if the defendant stated the information that the factory operation and business cannot be operated upon the expiration of the permission period due to the extension of the permission period on January 4, 1999 until December 31, 199, it does not withhold the right to withdrawal from the above permission for extension itself. Thus, the ground of appeal that the court below erred in the misapprehension of legal principles as to withdrawal of permission for the act in a development restriction zone, interpretation and application of related Acts and subordinate statutes, under the premise that the disposition in this case is the exercise of the right to withdrawal reserved in the permission for extension as of January 4, 199.

D. Regarding ground of appeal No. 4

In full view of the relevant Acts and subordinate statutes, the court below determined that, in order to permit the installation of ready-mixed production facilities within a development restriction zone, the period of permission has been extended one year on January 4, 199, and there is no quantity of aggregate extraction in relation to the Han River comprehensive development project, and since the plaintiff company produces ready-mixed using the aggregate extracted from the neighboring construction site, such as Jung River Highway Corporation, it cannot be deemed that the manufacturing plant of the plaintiff company satisfies the requirements for its installation. Furthermore, as seen earlier, the permission in this case is premised on the extraction of aggregate from the Han River comprehensive development project, and the defendant continued to collect aggregate from the above development project, and the period of permission has been extended one year on the basis of the reduction in the quantity of aggregate extraction, and the period of permission has been extended up to December 31 of 1999, and the defendant did not know that the aforementioned project was not permitted after the expiration of the production period of the plaintiff company's discretionary power, and it cannot be seen that it was not permitted after the expiration of the period of permission.

In light of the records, the recognition and judgment of the court below are just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the scope of discretion and misunderstanding of facts against the rules of evidence as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is 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 Park Jae- Jae (Presiding Justice)