[1] Whether the transfer of ownership of the temple property includes the transfer of ownership due to the expropriation of the temple property within the scope of the "disposition of the well-known place requiring the permission of the Minister of Culture and Sports" under Article 6 (1) of the former Traditional Temple Preservation Act (negative)

[2] In a case where the Minister of Construction and Transportation has designated a planned housing site development area without consultation with the head of the relevant central administrative agency, whether such designation is void as a matter of course (negative)

[1] According to the provisions of Article 6(1)2 and (5) of the former Traditional Temple Preservation Act and Articles 3(1) and 7(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15493 of Oct. 2, 1997), the disposal of the properties owned by the relevant temple must be approved by the Minister of Culture and Sports who is the competent Minister in the case of leasing, transferring, or offering as security such properties within the boundaries of a traditional temple, and the disposal of the properties without such permission shall be null and void. In light of the language and text of the above provision, the main purpose of the above is not to obtain permission from the Minister of Culture and Sports whenever the ownership of the traditional temple properties changes all times, such as in the light of the purport of the above provision, since the traditional temple's disposal of properties without permission by the President of the Ministry of Culture and Sports without permission is obviously an act of disposal within the boundary of the traditional temple property by the private person, etc., the expropriation of the properties owned by the State or the relevant local government is not included in the ownership.

[2] According to the former Housing Site Development Promotion Act (amended by Act No. 5688 of Jan. 25, 1999), housing site development projects are conducted in the order of designation of the planned housing site development area (Article 3), approval of the housing site development plan (Article 8), and ruling of expropriation based thereon. Where each of the above acts is an independent administrative disposition with separate legal effects by phase, and thus it becomes impossible to dispute the validity of the preceding disposition, the defect of the preceding disposition shall not be succeeded to the subsequent disposition unless there is a ground for invalidation. Article 3 of the same Act does not mean that the Minister of Construction and Transportation must seek advice from the head of the relevant central administrative agency in designating the planned housing site development area, but it does not mean that the Minister must consult with the head of the relevant central administrative agency in advance. Thus, even if such consultation has not been held, it is merely the defect that constitutes a ground for revocation of the above designated disposition, and it does not constitute a defect that the above designation disposition becomes null and void.

[1] Article 6(1)2 and (5) of the former Traditional Temple Preservation Act (amended by Act No. 5320 of Apr. 10, 1997); Articles 3(1) and 7(2) of the former Enforcement Decree of the Preservation of Traditional Buddhist Temples Act (amended by Presidential Decree No. 15493 of Oct. 2, 1997) / [2] Articles 3 and 8 of the former Housing Site Development Promotion Act (amended by Act No. 5688 of Jan. 25, 199), Article 29 of the Land Expropriation Act, Article 1 [general] and Article 19 of the Administrative Litigation Act

[2] Supreme Court Decision 91Nu11582 delivered on August 14, 1992 (Gong1992, 2683), Supreme Court Decision 95Nu10075 delivered on March 22, 1996 (Gong1996Sang, 1413), Supreme Court Decision 95Nu13241 delivered on April 26, 1996 (Gong196Sang, 1743), Supreme Court Decision 96Nu1096 delivered on September 26, 1997 (Gong197Ha, 3301), Supreme Court Decision 96Nu6059 delivered on March 13, 198 (Gong199, 1084) (Gong199Sang, 209Du98109 delivered on September 29, 200)

Amamsa (Attorney Park Jae-soo, Counsel for the defendant-appellant)

Central Land Tribunal and one other (Law Firm Barun Law Office, Attorney Jeong-ho, Counsel for the defendant-appellant)

Busan High Court Decision 95Gu7963 delivered on December 4, 1998

The judgment of the court below is reversed, and the case is remanded to Busan High Court. Defendant Korea National Housing Corporation's appeal is dismissed. The costs of appeal dismissed are assessed against Defendant Korea National Housing Corporation.

1. The appeal by Defendant Korea National Housing Corporation is examined ex officio as to whether it is legitimate;

According to the records and the reasoning of the judgment below, the plaintiff sought confirmation of invalidity of the disposition of this case against only the defendant Central Land Expropriation Committee among the defendants among the main claims of this case. On the other hand, as to the defendant Central Land Expropriation Committee, the plaintiff sought revocation of the part of 100,000,000 of the dismissal of the plaintiff's application in the judgment of this case, and sought payment of the above money against the defendant National Land Expropriation Corporation. Accordingly, the court below accepted the main claim of this case and did not decide the conjunctive claim.

Therefore, since there was no judgment against Defendant Korea National Housing Corporation, the above Defendant’s appeal is unlawful.

2. The grounds of appeal by the Central Land Expropriation Committee and the supplemental appellate brief submitted after the expiration of the submission period are also examined.

A. On the second ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning as to the current status of the use of the land of this case at the time of the disposition of this case, and determined that all of the land of this case belongs to the boundary of the border stipulated in Article 2 (2) of the former Traditional Temple Preservation Act (amended by Act No. 5320 of April 10, 197, hereinafter referred to as the "Act").

In light of the records and relevant statutes, the fact-finding and judgment of the court below is just, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal. The ground of appeal on this point cannot be accepted.

B. On the first ground for appeal

According to Article 6 (1) 2 and (5) of the Act and Articles 3 (1) and 7 (2) of the Enforcement Decree of the Act (amended by Presidential Decree No. 15493 of Oct. 2, 1997), the court below held that the act of expropriation is null and void unless it obtains permission from the Minister of Culture and Sports in leasing, transferring, or offering as security the real estate in the vicinity of a traditional temple, and that the act of disposal conducted without such permission shall be null and void. In light of the legislative intent of the above provision, the above act of disposal required for permission from the Minister of Culture and Sports shall be deemed null and void, since it is reasonable to deem that the act of expropriation is null and void by accepting the land in this case without permission from the Minister of Culture and Sports, since it is reasonable to deem that the disposal of the land in this case is null and void as it does not affect the plaintiff's disposal of the land in this case.

However, this decision of the court below is not acceptable.

According to the reasoning of the court below, the purport of the above relevant provisions is as follows: Buddhist temples are Buddhist associations for the performance of Buddhist temples, the execution of Buddhist temples and the edification of believers, and their possession property is necessary to realize the purpose of such temples. In particular, traditional temples have cultural property value which serves as material of art and ancientology, and need to preserve the dignity and dignity of temples. Thus, by protecting and maintaining properties within the boundaries of traditional temples, traditional temples can achieve the purpose of contributing to the improvement of social culture as well as the original existence of temples. However, in light of the above provisions, it is clear that the main purpose of the above provisions is not to obtain permission from the Minister of Culture and Sports whenever the ownership of traditional temples changes always in all cases such as temple properties, but it is not clear that traditional temples are subject to compulsory expropriation by the State or local governments for the purpose of preventing changes in their property rights due to acts such as the disposal of Buddhist temples without permission, etc.

As the court below was amended by Act No. 5320 on April 10, 1997, Article 9(1) and (2) of the Act provides that any person who intends to expropriate, use, or limit the boundaries of a traditional temple under other Acts shall obtain prior consent from the Minister of Culture and Sports, and if the Minister of Culture and Sports intends to give consent, he/she shall consult with the representative of the representative organization belonging to the traditional temple. However, the court below's interpretation as stated in its holding should not be immediately applied after the amendment of the Act, regardless of the validity of the theory of interpretation after the amendment of the Act.

Therefore, it is reasonable to view that the transfer of ownership of the temple property does not include the transfer of ownership of the temple property, such as the land in light of the public expropriation, etc., of the disposal act that requires the permission of the Minister of Culture and Sports.

Nevertheless, the court below held that the disposition of this case without the permission of the Minister of Culture and Sports is null and void on the premise that the transfer of ownership by the expropriation for public use is included in the disposition of well-known knowledge that requires the permission of the Minister of Culture and Sports. In this regard, there is a misapprehension of the legal principles as to the scope of the disposition of the chief Buddhist temple's disposal that requires the permission of the Minister of Culture and Sports as prescribed in

C. On the third ground for appeal

According to the reasoning of the judgment below, when the Minister of Construction and Transportation designates the whole area of the instant land as a planned area for housing site development under Article 3 (1) of the Housing Site Development Promotion Act, the court below determined that the instant land owned by the Plaintiff, which is a traditional temple, should be consulted with the Minister of Culture and Sports, pursuant to Article 3 (2) of the same Act, even though it did not undergo such consultation procedures, it is clear that the instant disposition

However, it is difficult to accept this part of the judgment of the court below.

According to the Housing Site Development Promotion Act (amended by Act No. 5688 of Jan. 25, 199, hereinafter the same) the housing site development project takes place in the order of designation of the prearranged area for housing site development (Article 3), approval of the housing site development plan (Article 8), and ruling of expropriation based thereon. Where each of the above acts is an independent administrative disposition with separate legal effects by phase, and thus it becomes impossible to dispute its validity, the defect of the preceding disposition shall not be succeeded to the subsequent disposition unless there is a ground for invalidation. Article 3 of the Housing Site Development Promotion Act does not mean that the Minister of Construction and Transportation must seek advice from the head of the relevant central administrative agency in designating the prearranged area for housing site development, but it does not mean that consultation with the head of the relevant central administrative agency should be sought. Thus, even if such consultation was not carried out, it is reasonable to view that the above designation disposition becomes invalid due to the defect that constitutes a ground for revocation of the above designated disposition, and it does not constitute a defect that can be justified (see, e.g., Supreme Court Decision 196Nu 196.

However, according to the records, since it is clear that the plaintiff does not dispute the validity of the above designated disposition at the stage of the above designated disposition, so so long as the above designated disposition, which is the preceding disposition, cannot be contested, it cannot be said that such defect affects the disposition of this case, which is the subsequent disposition.

Nevertheless, the court below made a judgment on the ground that the disposition in this case was null and void due to the absence of such a consultation procedure. Accordingly, there is a misapprehension of legal principles as to the validity of the subsequent disposition due to the defect of the prior disposition. The ground of appeal pointing this out has merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. The appeal by Defendant Korea National Housing Corporation is dismissed. The costs of appeal are assessed against the above defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)