[1] The validity of a municipal ordinance that prescribes matters concerning the limitation of residents' rights or the imposition of obligations without the delegation of a law (=Invalidation) and the legal requirements of a municipal ordinance in a case where the statutes of the State already exist concerning specific matters

[2] The case holding that Article 21 (1) 3 of the Urban Planning Ordinance of Sung-nam City and Article 2 of the Enforcement Rule thereof, which allowed the restriction on permission for development activities of the land specified in the land use plan certificate by intentional or unlawful damage to forest trees or by changing the topography, and Article 2 of the Enforcement Rule thereof do not violate the Creation and Management of Forest Resources Act, since they are in accordance with the delegation by law

[1] Article 22 of the Local Autonomy Act, Article 4(3) of the Framework Act on the Regulation of Land Use / [2] Article 10(1)3 of the Framework Act on the Regulation of Land Use, Article 9(4)2 of the Enforcement Decree of the Framework Act on the Regulation of Land Use, Article 2(2)6 of the Enforcement Rule of the Framework Act on the Regulation of Land Use, Articles 3 and 58(1) and (3) of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 56(1) [Attachment Table 1-2] subparagraph 1(a)(3) of the Enforcement Decree of the National Land Planning and Utilization Act, Article 10(1) and (2) of the Creation and Management of Forest Resources Act, Article 22 of the Local Autonomy Act

[1] Supreme Court Decision 2006Du38 Decided October 12, 2006 (Gong2006Ha, 1919), Supreme Court Decision 2006Da52 Decided December 13, 2007 (Gong2008Sang, 61), Supreme Court en banc Decision 2010Du19270 Decided November 22, 2012 (Gong2013Sang, 51)

Woo C&P (Law Firm Jeong-jin, Attorneys Gyeong-chul et al., Counsel for the plaintiff-appellant)

The head of Seongbuk-gu Seoul Metropolitan Government (Law Firm Gyeong, Attorneys Song Dog-won, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu40532 decided May 30, 2012

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

The grounds of appeal are examined.

1. As to whether the provisions of the instant Municipal Ordinance and the Enforcement Rule are illegal or invalid

A. Relevant legal principles

Article 22 of the Local Autonomy Act, Article 4 (3) of the Framework Act on Administrative Regulations provides that when a local government establishes a municipal ordinance, if the contents of the municipal ordinance are matters concerning the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, it shall be delegated by law. Therefore, the municipal ordinance without statutory delegation has no validity (see Supreme Court en banc Decision 2010Du19270, Nov. 22, 2012, etc.). Moreover, even if the municipal ordinance constitutes an autonomous municipal ordinance, the municipal ordinance of a local government may only be enacted within the extent that it does not violate the statutes, and it does not have the effect of the municipal ordinance in violation of the statutes, but it is intended to regulate a specific matter governed by the municipal ordinance in accordance with separate purposes even in cases where the statutes governing it exist, and it does not entirely undermine the purpose and effect of the municipal ordinance (see Supreme Court Decision 2006Da5270, Dec. 13, 2007).

B. Details of the ordinances of this case

Article 21(1)3 of the former Urban Planning Ordinance of Seongbuk-gu (amended by Ordinance No. 2652, Jun. 27, 2012) of the same Act (hereinafter referred to as the “Ordinance of this case”) provides that permission for development may be granted in cases where land is not land specified in the land utilization plan as the forest trees have been damaged intentionally or unlawfully, or topographical has not been changed, and where land is not land specified in the land use plan as the land has not been restored. Article 2 of the Enforcement Rule of the Urban Planning Ordinance of Sungnam-si (hereinafter referred to as the “Enforcement Rule of this case,” and Article 2 of the Enforcement Rule of the same Act (hereinafter referred to as the “Enforcement Rule of this case, etc.” in cases where the provisions of this case and the instant Enforcement Rule are collectively referred to, the Forest Management and Development Permission Control Department shall notify the department issuing the land use plan of such fact, and the department notified of such fact shall delete the fact clearly or clearly on the land use plan.”

According to the above provisions, if the fact that forest trees, etc. are damaged intentionally or unlawfully by intention or by third party and are not restored to their original state is entered in a written confirmation of land use planning, the grounds for restrictions on permission for development activities are stipulated. This is the content that restricts the landowner’s right to use and benefit from the land by limiting the possibility of development activities of damaged land, and thus, it is lawful to have the statutory delegation pursuant to Article 22 of the Local Autonomy Act.

C. Existence of a delegation basis provision concerning the instant municipal ordinances, etc. and whether they deviate from the delegation scope

(1) Part concerning the matters stated in written confirmation of land use plan

Article 10(1)3 of the Framework Act on the Regulation of Land Use, Article 9(4)2 of the Enforcement Decree of the Framework Act on the Regulation of Land Use provides for “matters prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, which need to be known to the general public as matters requiring notification of the designation thereof,” and Article 2(2)6 of the Enforcement Rule of the Framework Act on the Regulation of Land Use provides for “information related to the use of land prescribed by urban planning ordinance by local governments” according to delegation, local governments may provide “information related to the use of land that needs to be notified to the general public.

The provisions of this case, etc. stipulate the same fact as the entry in a written confirmation of land use plan on the premise that permission for development activities is limited with respect to land which has not been restored to its original state due to intentional or unlawful damage of trees. Such matters constitute information related to land use which needs to be notified to the general public, and are included in the scope delegated by the Framework Act on the Regulation of Land Use to the extent that the Ordinance of the Framework Act on the Regulation of Land Use was delegated. Therefore, the part concerning the matters

(2) Part concerning criteria for permission for development activities

Article 3 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”) provides for “Preservation of the natural environment and scenery, and the improvement and restoration of the damaged natural environment and scenery” (Article 2) other than “effective use and smooth supply of land and various facilities necessary for national living and economic activities” (Article 3 of the National Land Planning and Utilization Act) as the basic principles for the utilization and management of the national land. Article 58(1)4 and (3) of the National Land Planning and Utilization Act provides that “The application for permission for development activities shall be in harmony with the standards for permission for development activities under each subparagraph of Article 58(1) of the National Land Planning and Utilization Act (Article 58(1) of the National Land Planning and Utilization Act), including “the land use status or land utilization plan of surrounding areas, height of buildings, gradient of water, water drainage, water drainage, drainage of wetlands, etc.,” and detailed matters necessary for such permission shall be delegated to the National Land Planning and Utilization Act (Article 16(3) of the National Land Planning and Utilization Act).

In addition to the form and content of the above provision, in consideration of the fact that the National Land Planning Act delegates the authority to establish a relatively wide range by delegation to the urban planning ordinance on the criteria for permission for development activities, local governments may determine not only the status of trees but also the conditions leading to the situation, etc. at the time of the determination of permission for development activities, as long as it does not go against the principles prescribed in Article 3(a) of the National Land Planning and Utilization Act and the matters prescribed in subparagraphs of Article 58(1)

Of the provisions of this case, the part concerning the criteria for permission for development activities among the contents stipulated in the provisions of the Municipal Ordinance, etc. of this case includes the purport of restricting permission for development activities in the case of “land whose trees are damaged by intention or illegality or whose topography has not been changed and whose fact is specified on a land utilization plan confirmation as not to restore to the original state after the change of topography, whether damage such as trees is done by the landowner or by a third party. The purport of the provisions of this case, etc. is consistent with the basic principle of “the preservation of natural environment and scenery, and the improvement and restoration of damaged natural environment and landscape” as stipulated in Article 3 of the National Land Planning and Utilization Act, and permission for development activities under the National Land Planning and Utilization Act is not only based on the subjective situation of the landowner, but also on the objective condition of the land (Article 58(1) of the National Land Planning Act). Accordingly, the above criteria for permission for development

D. Whether the provisions of this case violate the Creation and Management of Forest Resources Act

Article 10(1) and (2) of the Creation and Management of Forest Resources Act (hereinafter “Forest Resources Act”) provides that the head of a Si/Gun/Gu may order a person who fells into a forest or damages an afforested area and does not reforest the exploited area or damaged area, or the owner of a forest, the owner of a forest, the standing timber of which has been killed due to a forest fire, forest disease, pest, etc., or the owner of a forest, the forest of which has caused or is likely to cause a forest disaster, such as landslide, may do so. Thus, in cases of damage to a cut forest or afforested area, the duty of afforestation shall be imposed on the person who has committed such act and shall not be imposed such duty unless

However, according to the ordinances of this case, even if damage to forest trees, etc. was done by a third party other than the landowner and such damage was not restored to their original state, and the same facts are stated in the land use plan confirmation certificate, permission for development activities cannot be granted unless the landowner restores the damaged forest trees to their original state, and the actual burden of the landowner who intends to obtain permission for development

① However, while the instant ordinances, etc. contain the criteria for permission for development activities under the National Land Planning Act, an afforestation order under the Forest Resources Act is intended to order a person who damages a forest to restore the original state. As such, both are different from the purpose and content of regulation. ② The instant ordinances, etc. do not impose an afforestation duty on the landowner generally, but rather impose an actual obligation on the landowner only when he intends to obtain permission for development activities, and ③ Article 6 of the Forest Resources Act imposes a general obligation on the forest owner to endeavor to manage forests in compliance with the evaluation criteria and evaluation index for sustainable forest management. In light of the foregoing, the instant ordinances, etc. cannot be deemed as impeding the purpose and effect of the Forest Resources Act, and thus do not violate the Forest Resources Act

E. Whether the lower judgment was unlawful

Nevertheless, the lower court determined that the instant municipal ordinance provisions, etc., in cases where the third party damages forest trees, were practically compelling the owner of land who did not bear the afforestation obligation, unlike Article 10 of the Forest Resources Act, and that it was unlawful and invalid as it did not have any delegation of the Act. In so doing, the lower court erred by misapprehending the legal doctrine on the principle of reservation under Article 22 of the Local Autonomy Act.

2. As to the purport and effect of the violation under Article 2 of the Addenda of the Enforcement Rule of this case

Meanwhile, according to the reasoning of the lower judgment, the lower court determined that the instant disposition was unlawful on the premise that, with respect to the act of damaging forest trees that occurred before the enforcement of the instant Enforcement Rule, which was enacted and promulgated on October 2, 2003, caused intentionally or unlawfully a damage to forest trees or failed to restore to the original state due to a change in topography, within 30 days from the date of its promulgation, and immediately upon receipt of the notice by the issuing department of land use planning certificate, the land use planning certificate must be issued by clearly stating the relevant facts on the land use planning certificate. In light of the content and purport of the provision, on the premise that the foregoing supplementary provision was limited to 30 days in specifying the facts committed before the enforcement of the instant Enforcement Rule, on the premise that there was a certain restriction with regard to the act of damaging forest trees that occurred after the enforcement of the instant Enforcement Rule.

In light of the purport and contents of the above supplementary provision, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the nature of the above supplementary provision as otherwise alleged in the ground

3. Conclusion

Therefore, the lower court’s conclusion that the instant disposition was revoked on the ground that it was unlawful against Article 2(2) of the Addenda of the Enforcement Rule of this case, notwithstanding the lower court’s misapprehension of the legal principle as to the validity of the instant ordinances, etc., is justifiable. Therefore,

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 Min Il-young (Presiding Justice)