2010Guhap2321 Revocation of an administrative disposition

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Dongdaemun-gu Seoul 00 Dong-dong

Representative Director Kim Jong-so

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Representative Do Governor;

[Judgment of the court below]

000 Housing Corporation

Sung-nam City 00 dong-dong 00

대표자 사장 이▲

Attorney Kim Jong-sub, Counsel for the plaintiff-appellant

March 29, 2011

April 19, 2011

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant's rejection disposition against the plaintiffs on April 15, 2010 regarding the application for calculation of the area of use for religious land (the portion not recognized as the existing area) shall be revoked.

1. Details of the disposition;

A. On February 16, 2004, the Minister of Construction and Transportation, in order to carry out the housing site development project for a special zone in Namyang-si, Namyang-si (hereinafter referred to as the “instant project”), designated 00 pages as a planned area, and publicly notified on December 20, 2005 as the Ministry of Construction and Transportation Notice No. 2005-424.

B. During the process of carrying out the instant project, the Defendant, a project implementer, has completed and implemented a compensation plan with respect to the determination of the recipient of the religious site (hereinafter “instant compensation plan”) as follows:

(1) Method of supply and supply

-Negotiated contract

- 120% of the existing area: Development cost, additional area: Appraisal price;

(2) The order of supply

(3) The criteria for calculating the existing area

A person shall be appointed.

* Unauthorized use is not made for legitimate use even if there is a building ledger and a certified copy of the building register

Deemed a building (only on January 24, 1989, an unauthorized building constructed before January 24, 1989, recognized as a lawful building)

C. On April 15, 2010, the Defendant acquired each land (hereinafter referred to as "land of this case") and its ground on the table lot number column as indicated below. Since then, the Plaintiffs used the entire land of this case as a religious site, and the Plaintiffs applied for the purport that all of them should be calculated as an existing area as indicated in the application column for calculating the area for use of the religious site of this case as indicated below (hereinafter referred to as "application of this case"). However, on the ground that on April 15, 2010, the Defendant recognized the Plaintiffs as an existing area only as a certain area as indicated in the existing area column of use of the table, and the Defendant did not recognize the remaining application area as an area for use of the religious facility of this case for the reason that there was no legitimate building on that ground (hereinafter referred to as "area not recognized as an existing area"), and issued the disposition of refusal against the above part as to the non-recognized area of this case.

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A person shall be appointed.

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A person shall be appointed.

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[Ground for recognition] A without dispute, Gap evidence 3, Gap evidence 4-1 through 6, Gap evidence 5, Gap evidence 6-1 through 4, Gap evidence 9-1 through 3, Gap evidence 16-1, 2, Gap evidence 25-1 through 6, Gap evidence 31-1 through 4, Gap evidence 35, Eul evidence 1 through 8, Eul evidence 1 through 8, and Gap evidence 2. Whether the disposition of this case is legitimate

A. The plaintiffs' assertion

The plaintiffs asserted that the defendant's rejection disposition of this case is illegal for the following reasons.

(1) On December 30, 2004, the plaintiffs asked the Ministry of Construction and Transportation about the Ministry of Construction and Transportation as to whether it can be recognized as a religious site prior to the entry into the name of the church pastor or the representative of the members, and the Ministry of Construction and Transportation replyed to the purport that the land being used as the actual church site around January 28, 2005 would be evaluated as a religious site, and that the plaintiffs trusted that the land being used as the actual church site is to be evaluated as a religious site. The defendant's refusal disposition of this case violates the principle of trust.

(2) The non-recognition area of this case constitutes the whole and answer, etc. under the name of the chief wood officer or the representative of the teachers, but all the plaintiffs were used as religious facilities as a real owner, and thus, it should be calculated by including the existing use area.

(b) Relevant statutes;

The entries in the attached Table-related Acts and subordinate statutes are as follows.

C. Determination

(1) As to the first argument of the plaintiffs

On January 28, 2005, the Ministry of Construction and Transportation sent to the plaintiffs around January 28, 2005, the purport of the reply is that the land actually used as the branch of a church is expected to be evaluated as a religious site. Ultimately, the above reply is merely an expression of opinion in principle when it is recognized that the land actually used as a church site is a land being used as an actual church site. Thus, it cannot be viewed as an expression of opinion that recognized the plaintiffs' land in this case as being used as the actual church site or that it is intended to calculate it into the existing use area. Accordingly, this part of the plaintiffs' assertion on a different premise is without merit.

(2) As to the second argument of the plaintiffs

According to the above defendant's compensation plan of this case, if it is actually used as a religious site even though it is not a religious site due to land category, it can be recognized as an area for existing use, and even if it is a land under the name of representative and new individual, it can be calculated as an area for existing use if it is proved that it is a land owned by a religious corporation.

However, such relocation measures are aimed at restoring the previous living conditions, such as overcoming the limitation of the system of physical compensation and ensuring survival. The land category and use of public land are comprehensively reflected in the laws and regulations leading to the utilization status of the land and buildings on the premise of an application filed by the owners of the land and buildings for the purpose of using them. Thus, it can be the most objective requisition for the actual use status. After illegally altering the previous and answer questions, some religious activities can be conducted in this context, and if the land is supplied for public interest, it would be more than the right previously owned by the owners of the land, and if the land is sold to the public interest project than the right to compensate for the transfer of the land later, the land should be determined separately by the agreement on the transfer of the land to the public interest project. In light of the above, Article 8 of the Housing Site Development Promotion Act provides that if the land falling under the category and answer of the land in public register is actually used as a religious site, the land subject to the sale of the land in public land should be determined within the scope of the standards of the consultation.

이 사건에 관하여 보건대 , 먼저 원고 대□■■■■■■■■■의 경우 , 앞서 인정 한 사실 등에 드러난 다음과 같은 사정 즉 , 위 원고에 대한 기존 이용면적 불인정 부 분 모두 그 지상에 단독주택 용도의 건물이 건축되어 있는 점 , 그 중 _ _ _ - _ 번지 926 ㎡ 부분은 소유명의인이 장지♤이고 , 그 지목도 전에 해당하는 점 , 그러나 위 원고는 위 원고에 대한 기존 이용면적 불인정 부분의 매매계약 , 명의신탁약정 , 토지이용상황 등에 관한 객관적이고 직접적인 자료를 제출하지 못하고 있는 점 등에 비추어 보면 피 고의 이 부분에 대한 거부처분은 적법하고 , 다음으로 , 나머지 원고들의 경우에도 , 앞서 인정한 사실 등에 드러난 다음과 같은 사정 즉 , 위 원고들에 대한 기존 이용면적 불인 정 부분이 모두 소유명의인이 제3자이고 , 그 지목도 전 , 답 , 도로 , 목장용지 등에 해당 하는 점 , 그러나 위 원고들은 위 원고들에 대한 기존 이용면적 불인정 부분의 매매계 약 , 명의신탁약정 , 토지이용상황 등에 관한 객관적이고 직접적인 자료를 제출하지 못하 고 있는 점 등에 비추어 보면 피고의 이 부분에 대한 거부처분도 적법하다 . 따라서 원 고들의 이 부분 주장도 이유 없다 .

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Su-cheon, the presiding judge

Judges B.

Judge Cho Han-hoon