[1] The standard time to determine whether an implementer of an urban planning facility project satisfies the requirements for consent (=the time of disposition to designate a project implementer) and whether each of the co-owners should consider the landowner as the landowner and calculate the consent rate (affirmative in principle)

[2] In a case where there is a defect in the designation of an implementor of an urban planning facility project or the disposition of authorization for an implementation plan, whether the competent authority, who has designated an implementor of an urban planning facility project or authorized an implementation plan, may cancel the designation by itself

[1] Article 86(7) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “former National Land Planning Act”) and Article 96(2) of the Enforcement Decree thereof provide that consent shall be obtained from at least 1/2 of the total number of landowners as the requirement for consent to be designated as the implementer of an urban planning facility project, and there is no provision regarding the standard period for determining the requirements for consent or the method for calculating the rate of consent. However, a private person’s act in public law may be freely withdrawn or revised until the relevant administrative act takes place, unless it is clearly prohibited or impossible due to its nature. Thus, a land owner may withdraw or withdraw his/her new consent until the designation of an implementation plan takes place. Since the requirement for consent is meaningful as a ground for justifying the grant of a right to expropriate a private enterprise, and thus, it shall be deemed that the designation of an urban planning facility project implementer or the designation of a project implementer takes place in compliance with the purpose of the former National Land Planning and Utilization Act.

In addition, there is no special provision that co-owners should be calculated as one landowner, and each co-owner has its own interest in the exercise of the right to consent to the designation of a project implementer which is the foundation of the procedure for expropriation. Therefore, in principle, co-owners should be calculated as the landowner.

[2] The competent authority that has designated an implementor of an urban planning facility project or authorized an implementation plan may cancel the designation of a project implementer or the disposition of authorization for an implementation plan pursuant to Article 133(1)21(d) and (e) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201); and may cancel the designation of a project implementer or the disposition of authorization for an implementation plan even if there is a defect in the designation of a project implementer or the disposition of authorization for an implementation plan.

[1] Article 86(7) of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act / [2] Article 133(1)21 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 19 of the Administrative Litigation Act

Song Park (Attorneys Lee Jae-de et al., Counsel for the defendant-appellant)

Gyeonggi-do Sungnam City (Law Firm Dasan, Attorneys Don-ju, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu10040 decided March 14, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

(a) Whether ownership requirements are met for designating an implementor of an urban planning facility project;

Article 86(7) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 2011; hereinafter “National Land Planning Act”) provides that a person who does not fall under the State or a local government, etc. intends to be designated as an implementer of an urban planning facility project shall meet the requirements prescribed by Presidential Decree concerning the size of the land subject to the urban planning facility project (excluding State-owned and public land) and the ratio of the consent of landowners. Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) provides that the person owns the land equivalent to at least 2/3 of the size of the land subject to the urban planning facility project and the consent of at least a half of the total number

According to the reasoning of the lower judgment, the lower court determined that, in light of the ownership status of the land subject to the instant project, it could not be deemed that the requirements for ownership under the said provision were not satisfied at the time the Defendant rendered designation of an implementor of an urban planning facility

In light of relevant regulations and records, the above determination by the court below is acceptable, and there is no error of law by misapprehending the legal principles as to ownership requirements necessary for the designation of an implementor of an urban planning facility project.

(b)Criteria timing for determining consent requirements for designating an implementor of an urban planning facility project and methods for calculating consent rates;

Article 86(7) of the National Land Planning and Utilization Act and Article 96(2) of the Enforcement Decree thereof provide that the consent of at least 1/2 of the total number of landowners shall be obtained as an implementer of an urban planning facility project, and there is no provision regarding the standard time for determining the consent or the method of calculating the consent rate. However, in light of the purport of the National Land Planning Act, the respect for the right holder’s intent to lose ownership against the intent of the project implementer is reasonable at the time of determining whether the consent requirement is satisfied, in full view of the following: (a) a private person’s act in public law may be freely withdrawn or revised until an administrative act is performed unless it is explicitly prohibited or impossible due to its nature; (b) a private enterprise designated as a project implementer may expropriate the land subject to an urban planning facility project until the designation of the project implementer is made; and (c) a private enterprise is able to obtain authorization of the implementation plan.

In addition, there is no special provision that co-owners should be calculated as one landowner, and each co-owner's own interest exists in the exercise of the right to consent to the designation of a project implementer which is the foundation of the procedure for expropriation. Therefore, in principle, co-owners should be calculated as the landowner.

In the same purport, the court below is just to determine whether co-owners meet the requirements for consent by calculating each co-owner as the landowner at the time of disposition of designation of a project implementer, and there is no error of law by misapprehending the legal principles on the standard time of determination and method of calculating the consent rate.

2. Regarding ground of appeal No. 2

In addition, when the cause of Article 133(1)21(d) and (e) of the National Land Planning and Utilization Act arises, the competent agency which has granted the designation of an implementor of an urban planning facility project or the authorization of an implementation plan may revoke the designation of the implementor or the authorization of the implementation plan pursuant to the provisions of Article 133(1)21(d) and (e) of the National Land Planning and Utilization Act, and if there is

In the same purport, the court below is just in holding that the defendant's designation of the implementer of the urban planning facility project against the plaintiff and the disposition of the approval of the implementation plan are defective, and thus, the defendant may revoke the designation of the implementer and the disposition of the implementation plan on the ground of such defect. There is no error of law by misapprehending the legal principles on the designation of the implementer of the urban planning facility project

3. As to grounds of appeal Nos. 3 and 4

A. If a citizen acquires a certain benefit and right through a certain administrative disposition, the administrative disposition to revoke the previous administrative disposition is a separate administrative disposition that deprives the person who already acquired the existing benefit and right, and thus requires the public necessity to revoke the administrative disposition. Furthermore, even if there is a defect in the administrative disposition, the administrative disposition can be revoked only if it is highly possible to justify the disadvantage of the party to the public interest due to comparison and comparison with the necessity of the public interest and disadvantage such as the protection of trust and the infringement of the stability of legal life, etc., which would be borne by the party due to the cancellation, and the burden of proof of the defect or necessity to revoke is an administrative agency that has issued the disposition that infringes on the existing interest and right (see Supreme Court Decisions 63Nu142, May 26, 196; 201Du2375, Mar. 29, 2012, etc.).

B. According to the reasoning of the lower judgment, on October 21, 2009, the Plaintiff filed an application for designation of a project implementer and authorization of an implementation plan (hereinafter “instant application”) with the Defendant on the following grounds: (a) on December 21, 2009, the implementation of the instant project, including the establishment of a charnel house, road, and parking lot, on the land located in the instant park in accordance with the Defendant’s urban planning facility development plan for modification; and (b) on December 4, 2009, the Defendant notified the Plaintiff on December 4, 2009 that “to obtain designation as a project implementer, the requirements of Article 96(2) of the Enforcement Decree of the National Land Planning Act should be satisfied; and (c) on December 7, 2009, the Plaintiff submitted to the Defendant a plan to take measures for designation of a project implementer under its control, including the designation of the Plaintiff as the project implementer under the National Land Planning Act, and the Defendant also acknowledged the Plaintiff’s designation of the implementation plan under the National Land Planning Act as the Plaintiff’s.

Furthermore, the lower court determined that the instant disposition is lawful on the ground that, in light of the following circumstances: (a) the Plaintiff filed the instant application with the Defendant without satisfying the requirements under Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act; (b) the Plaintiff, despite the fact that the Plaintiff satisfied the above requirements and submitted a plan to take measures different from the fact that other agreed matters would be implemented; and (c) the specific meaning of the request for submission of the plan cannot be deemed to have not been sufficiently verified to the public official in charge; and (d) the public interest needs to ensure the legality of designation of the implementor of the instant original disposition; (b) the need for public interest to secure the legality of the designation of the implementor of the urban planning facility project or the authorization of the implementation plan, while the Plaintiff appears to have been actually suspended after August 2010, even if the Plaintiff trusted that the instant initial disposition was legitimate after the instant initial disposition, it could not be deemed that the Plaintiff did not have any cause to the Plaintiff; and (c) the Plaintiff’s interest infringement caused by the instant disposition is justified.

C. However, the lower court’s determination is difficult to accept.

1) The lower court determined to the effect that the Plaintiff could not invoke reliance interest due to the Plaintiff’s causes attributable to the defect in the original disposition in this case. However, the lower court determined that the Plaintiff could not invoke reliance interest because of the reasons for the lower judgment and the circumstances revealed by the record, namely, the Plaintiff’s accurate statement to the Defendant on the ownership status of the land subject to the instant project through 15, and that “to be designated as a project implementer,” the matters of consultation, which stated that “it must meet the requirements of Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act, to be designated as a project implementer,” rather than pointed out the defect in the requirements for designation of the project implementer, can only be perceived as having been merely a defect in the relevant laws and regulations, and the public official in charge of the Plaintiff, as well as the Plaintiff, did not appear to meet the requirements for ownership prescribed in the said Enforcement Decree in light of the current status of land ownership. Accordingly, it is difficult to readily conclude that the Plaintiff’s act of the original disposition in this case did not meet the requirements for the Plaintiff’s reliance interest in the initial disposition.

2) Furthermore, we examine whether the public interest need to cancel the original disposition of this case can be deemed to have been strong enough to justify disadvantages that the Plaintiff would suffer. The record reveals that, at the time of the initial disposition of this case, the land equivalent to about 75% of the size of the land subject to the project of this case, excluding State-owned land, was owned by Nonparty 1, the representative of the Plaintiff, or a person with a special relationship with him, or a corporation with him, and thus, it can be deemed that ownership was anticipated to be transferred to the Plaintiff for the project of this case. At the time of the application of this case, the requirements for consent under Article 96(2) of the Enforcement Decree of the National Land Planning Act were met, and even at the time of the initial disposition of this case, even if only one of the owners of land or a single co-owner was required to obtain consent from the above requirements for the initial disposition of this case, it is difficult to readily conclude that the Plaintiff would have suffered any disadvantage in the construction project of this case, including the construction project of this case, and the construction project of this case, etc.

3) Therefore, the lower court erred by misapprehending the legal doctrine on ex officio revocation of administrative action, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)