(영문) 부산고등법원 2017.8.11. 선고 2017누20408 판결

1. The part against the defendant in the judgment of the first instance is revoked, and the plaintiffs' claims corresponding to the revoked part are all dismissed.

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

Purport of claim and appeal

1. Purport of claim

The defendant's rejection disposition against the plaintiffs on May 4, 2016 is revoked.

2. Purport of appeal

The text of paragraph (1) is as follows.

Reasons

1. Scope of the judgment of this court;

The plaintiffs filed a claim for revocation of the rejection disposition of the application for cancellation of public vacant land against the lands listed in the separate sheet Nos. 1 to 11, and the judgment of the court of first instance accepted the plaintiffs' claims against the lands listed in paragraphs 1 to 3, 5 through 11 of the separate sheet No. 1, and dismissed the plaintiffs' claims against the lands listed in the separate sheet No. 4 of the plaintiff A and B. Accordingly, the part against which the defendant lost was appealed and the plaintiff A and B did not appeal.

Therefore, the scope of this court's adjudication is limited to the rejection disposition of the plaintiffs' application for cancellation of public vacant land against the land in the attached Table 1 (1) through (3), (5) through (11), except for the land in the attached Table 1 (4) of the plaintiffs A and B.

2. Details of the disposition;

The court's explanation on this part is based on Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, because the reasoning of the judgment of the court of first instance is the same as that of partial description.

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The entire land of this case is designated as public vacant land. ① Personal appraisal by public officials belonging to Ulsan Metropolitan City is not involved in the public interest purpose or necessity, ② The defendant requested the Ulsan Metropolitan City Mayor to utilize the entire land of this case as public vacant land in 2004. It is recognized that there is no need for the public interest to utilize the entire land of this case as public vacant land. ③ The public vacant land should be installed at a minimum for the public interest purpose. ④ The defendant failed to establish a project plan, compensation plan, etc. for the entire land of this case for 16 years or longer after the designation of public vacant land. ⑤ The disposition of this case is also unlawful because it constitutes a public vacant land in violation of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter referred to as the “former National Land Planning Act”) or a long-term public vacant land in violation of the purpose of legislation.

B. Relevant statutes

Attached 2 is as shown in the "relevant Acts and subordinate statutes".

1) The progress of application for designation and cancellation of public vacant land on the instant land

A) Plaintiff E and five others are the land of this case from the head of Ulsan-si, Ulsan-si around December 1995 by the head of the Dong-gu, Ulsan-si.

It was published to the effect that some of them are incorporated into the "Road Construction Project" (hereinafter referred to as the "Road Project in this case") for the reason that they are incorporated into the "Road Project" (hereinafter referred to as the "Road Project in this case").

Accordingly, Plaintiff E and 5 raised an objection to the purport that the above land does not constitute the instant road project site. However, as the Ulsan City continued to implement the instant road project, the Busan District Court rendered a provisional disposition of suspending construction works under the Busan District Court Support 96Kahap483, and the above court rendered a decision of suspending construction works on the ground that the execution of the instant road works without the consultation on compensation for the land, which is the instant site incorporated into the road, or the consent of the owner was infringed on the landowner’s ownership. Therefore, it is necessary to immediately suspend the said construction and prevent the continuation thereof. Accordingly, the instant land was not incorporated into the instant road project site.

B) On March 4, 200, the Ulsan Metropolitan City Mayor established and announced the instant decision on designating the instant land as a public vacant land, and on February 23, 2004, Plaintiff E and two other parties submitted a petition to the Ulsan Metropolitan City Mayor to the effect that H land and eight parcels are released from urban planning facilities (public land). On February 16, 2004, the Defendant, who was transferred the said petition case from the Ulsan Metropolitan City Mayor, shall sufficiently review the petition by reflecting the authenticity of urban management planning renewal, and if it is impossible to modify or terminate the urban management plan, it shall also request the construction of the old city and Do (I) expansion and construction of the new road and the installation of the new road, which are the access road to the JJ local industrial complex, to the maximum extent possible. Accordingly, the Defendant, on February 23, 2004, notified the Seoul Metropolitan City Mayor of the fact that there is a concern about the expansion of the public road and the construction of the new road and the construction of the new road to the extent possible.

C) On August 4, 2005, Plaintiff E asked the Ulsan Metropolitan City Mayor about the contents of the plan to create public vacant land for H and eight parcels, including H land, and the timing and time of its use. On August 8, 2005, the Ulsan Metropolitan City Mayor sent to Plaintiff E a reply to the purport that “The public vacant land under the urban management planning is determined by the urban planning to create a pleasant environment in the region, to ensure pedestrian traffic and to ensure a temporary rest space for residents, the said land is still not yet established. The Ulsan Metropolitan City Mayor was still planning to include the said land in the site.”

D) On June 2012, Plaintiff E filed a civil petition with the Defendant requesting the application of the long-term unexecution city planning facility rescission system under Article 48 of the former National Land Planning and Utilization Act to the land of H land as part of the daily land of H land. On June 25, 2012, the Defendant respondeded to Plaintiff E on June 25, 2012 to the effect that it would be reasonable under Article 48 of the former National Land Planning and Utilization Act.

E) On January 13, 2016, the Plaintiffs filed an application with the Defendant for the cancellation of public vacant land on the entire land of this case, and the Defendant sent sent the Plaintiffs on February 1, 2016, to the effect that the alteration (defensing) of urban planning facilities is difficult to cancel urban planning facilities because it does not fit the realization of public interest, on the grounds of infringement of private rights.

F) On March 29, 2016, the Plaintiffs again filed an application with the Defendant for the cancellation of public vacant land on the entire land of this case, and on April 1, 2016, the Defendant sent to the Plaintiffs on April 1, 2016, that “the relevant urban planning facilities (public vacant land) are determined for public interest, such as protection of the environment around Lcheon, maintenance of scenery, countermeasures against disasters, pedestrian traffic, and securing temporary rest space for residents, so it is difficult to cancel the facilities, and currently is planning to implement the project for the urban planning facilities (public vacant land).”

(b) Progress in the implementation of projects for urban planning facilities;

A) After the determination and publication of urban management planning (public vacant land) and topographic drawings with respect to the instant land, the Defendant reported on October 10, 2014 on the current status of long-term undeveloped urban planning facilities and the implementation plan by phase, including the instant public vacant land, to the North-gu Council in Ulsan Metropolitan City, Ulsan Metropolitan City, pursuant to Article 48(3) of the former National Land Planning and Utilization Act and Article 42(2) of the Enforcement Decree of the same Act.

B) On March 13, 2015, the Defendant started the service in accordance with the report of the service promotion plan to determine the land between the instant land and the Lcheon River Site as an additional urban management plan and completed the service on June 16 of the same year.

C) On July 2, 2015, the Defendant published the project implementation period by dividing it into one phase and two levels in accordance with the phased implementation plan for non-execution urban planning facilities including the instant public facilities. On February 18, 2016, the Defendant published a modified determination and a topographical map announcement on the content that the part of the land (1,036 meters) among the existing public vacant land (42,916 square meters) and the land between the river area, including the instant land, is additionally determined as public vacant land.

D) On May 24, 2016, the Defendant drafted the working design service cost of KRW 20 million in the first revised supplementary budget in order to implement a project for developing a project for creating a public vacant land as Lcheon public land. On July 14, 2016, the Defendant concluded the working design service for the development project for the public vacant land in this case and completed the working design service on November 15, 201 of the same year.

E) On September 6, 2016, the Defendant established a medium-term local finance plan with a project period from January 1, 2017 to December 31, 2018 with respect to a project for creating Lcheon public vacant land, including a total project cost of KRW 3.5 billion and a total project scale of KRW 2,641 square meters.

3) Current status, etc. of the instant land

A) In the vicinity of the instant land, residential areas, including apartment houses, and commercial buildings are concentrated. In addition, there are six-lane roads going to and from the vicinity of the Plaintiff A and B’s land.

B) In Lcheon, most of the land inside the embankment was expropriated by the Defendant. At present, the retaining wall (hereinafter referred to as “the retaining wall of this case”) was installed between the instant land and Lcheon, and the retaining wall of this case was created between the retaining wall of this case and Lcheon.

C) On December 27, 2012, Plaintiff A and B built a temporary building with permission for construction of M, N,O, P, and Q from the Defendant. At present, the first floor of the building is mobile phone sales agency, and the second floor is being used as general restaurants.

D) On January 19, 2015, Plaintiff C and D built a temporary building with permission for construction of R, S, and T land from the Defendant. At present, the said building is being used as a general restaurant.

E) On March 30, 2012, Plaintiff E constructed a temporary building with a building permit for H and U land granted from the Defendant. At present, the said building is currently being used as a mobile phone sales agency.

F) At the time of the instant decision, according to Lcheon, V land located adjacent to the instant land (hereinafter “V land”) was not designated as public vacant land, and the owners of V land newly constructed the instant land and used it as retail stores. On February 18, 2016, the Defendant additionally designated V land as public vacant land.

[Ground of Recognition] The facts without dispute, evidence as seen earlier, Gap's evidence, 2 through 8, 10 through 13, 15, 17 through 22, 24, 27 through 45, 48 through 51, Eul's 3,5, 6, 8 through 16, 19, 20 through 27, each entry and video (including separate numbers for those with separate numbers), the result of on-site inspection by the court of the first instance, the purport of the whole pleadings

D. Determination

1) Relevant legal principles

Administrative plans refer to the standards of activities or the establishment thereof established to realize certain order at a certain point in the future by integrating and coordinating relevant administrative means based on professional and technical judgments on administration in order to achieve specific administrative objectives. Administrative agencies have relatively broad freedom in formulating and determining specific administrative plans.

However, given that the freedom of formation of an administrative body cannot be deemed unlimited, and there is a limitation that the interests of the parties concerned should be fairly compared and compared to the public interest and private interest as well as the interests of the parties concerned in an administrative plan. Thus, in a case where an administrative body does not implement any profit balancing at the time of formulating and determining an administrative plan, or omits any matters to be included in the subject of consideration of the profit balancing, or where there is lack legitimacy and objectivity while imposing a profit balancing, such administrative plan determination may be deemed unlawful due to the defect in the profit balancing (see, e.g., Supreme Court Decision 2012Du2467, Jul. 10, 2014). Such legal doctrine likewise applies to an administrative disposition where, in principle, a person who owns land, etc. in an urban planning facility zone applied for an alteration of urban planning facilities with respect to the person who has the right to decide on urban planning facilities for a long time, and whether the person who has the right to decide on such application should accept such application and change the urban planning facilities (see, e.g., Supreme Court Decision 2081Du1868).

2) Determination

In light of the above legal principles, in light of the following facts or circumstances, which can be recognized by comprehensively considering the evidence and the purport of the entire pleadings, the Defendant’s discretion was appropriately exercised by comparing and balancing public and private interests at the time of rendering each of the instant dispositions. It cannot be deemed that there was an unlawful act of lack of legitimacy and objectivity in the disposition of the instant case, which did not provide a balance of interest or omitted matters to be considered in the balance of interest.

① Although the Ulsan Metropolitan City Mayor established the instant decision on March 4, 200 on urban planning facilities (public vacant lots) including the instant land, it is recognized that the implementation of the project on public vacant lots has not been embodied for a period of ten years, it is necessary to fully consider the characteristics that urban planning is a disposition that sets a long-term objective and sets a high level of discretion to realize a certain order at the time of the future through integration and coordination of administrative means related to each other. In assessing the illegality of the instant disposition, it is reasonable to determine the illegality of the instant disposition by taking into account the long-term objective of the Defendant at the time of the determination of urban planning facilities and the progress of the said plan after the determination. In addition, the administrative body has a relatively broad freedom to formulate and determine a specific administrative plan. Accordingly, the instant disposition cannot be deemed unlawful merely on the ground that the implementation of the project has not been

② On October 2014, the Defendant reported the current status and phased implementation plan of long-term unexecution urban planning facilities including the above urban planning facilities to the North-gu Council of Ulsan Metropolitan City pursuant to Article 48 of the former National Land Planning Act, and accordingly, the North-gu Council of Ulsan Metropolitan City recommended the cancellation of public vacant land or implemented any public document related thereto.

③ In addition, the Defendant, after reporting under Article 48 of the former National Land Planning Act, has established and publicly announced a phased implementation plan containing the details that the implementation plan for the instant land is scheduled to be implemented, has continuously promoted the project for urban planning facilities, such as the determination (revision) of an additional urban management plan and the announcement of topographic drawings, which determine the land between the instant land and the Lcheon river area as a public vacant land, and entered into a working-level service contract for the development project for the public vacant land between Large Do Co., Ltd. on July 2016, and implements the project for the urban planning facilities from the instant disposition to the present time, including the formulation of a mid-term local government plan for the development project for the public vacant land on September 6, 2016.

④ Considering the current status of the 6nd line road in the vicinity of the instant land where residential areas, including apartment houses, and shopping districts are concentrated around the instant land, and the high-speed river project is being carried out. Considering the current status of the 6th line road in the vicinity of the instant land, the necessity of the instant land is recognized in terms of promoting the improvement of urban landscape and improving the residential environment, traffic environment, and resting space of neighboring residents. The Defendant modified to determine the land of approximately 1,036 square meters in addition to the instant land for the project on urban planning facilities as public land and announced topographical drawings to determine the land of the 1,036 square meters in addition to the instant land. It is difficult to deem that the instant land is unnecessary for the project on

⑤ While the Defendant’s disposition was made on April 1, 2016 and in this case, “the relevant urban planning facilities (public vacant lots) are determined to be installed for the public interest, such as protection of the environment around Lcheon, maintenance of scenery, countermeasures against disasters, pedestrian traffic, and securing the temporary rest space for residents, and at present, the implementation of shop design services for the project to create public vacant lots, and is expected to create the friendship space for residents after the completion of design services.” This seems to be an appropriate balance between the Plaintiffs’ private interest and the necessity of maintaining public vacant lots when rescinding the determination of public vacant lots on the instant land.

④ In the case of Plaintiff A, B, C, and D, the said land was already designated as a public vacant land at the time of acquiring the ownership of the instant land, and thus, the Plaintiffs can be deemed to have acquired the ownership with the knowledge of the fact that the exercise of ownership would be limited.

7) In addition, pursuant to Article 64 of the former National Land Planning and Utilization Act, the Plaintiffs constructed and used a temporary building with permission for development on the condition that they voluntarily remove public vacant land for the instant land at their own expense prior to the implementation of a public vacant land development project. It is difficult to view that the Plaintiffs used the instant land on the condition that they would have restricted property rights due to public vacant land and have been significantly restricted from exercising their long-term property

8) The Plaintiffs asserted that the instant disposition should be revoked in light of the purport of the introduction of the long-term unexecution urban planning facility cancellation application system under the National Land Planning Act to relieve land owners whose property rights have been infringed for a long period. However, in light of the fact that the said system only recognizes the right to apply where no execution plan exists by the time the relevant urban/Gun planning facility is invalidated under the implementation plan by phase, thereby respecting the authority of the local government’s urban planning facility, and that the Defendant is making efforts to minimize the infringement of private property rights,

9. Article 48(1) of the former National Land Planning Act provides that where an urban planning facility project is not implemented within 20 years from the date of public announcement of the determination of urban planning facilities in order to minimize the infringement of property rights by interested persons, the determination of urban planning facilities shall be invalidated. The fact that 20 years have not passed since the date of public announcement of the determination of urban/Gun planning facilities is apparent, and where the relevant urban/Gun planning facility project is not implemented until ten years have passed from the date of public announcement of the determination of urban/Gun planning facilities, the relevant local council may recommend the cancellation of such facilities, and the Special Metropolitan City Mayor, the Metropolitan City Mayor, the Metropolitan City Mayor, or the head of a Si/Gun, upon receipt of the recommendation of such cancellation, was newly established by Act No. 10599, Apr. 14, 2011.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair as it is in part of the conclusion, so the part against the defendant in the judgment of the court of first instance is revoked and all of the plaintiffs' claim corresponding to that part is dismissed. It is so