[1] In a case where the cancellation of an illegal disposition is not possible to restore it to its original state, whether there is a benefit of lawsuit seeking such cancellation (negative)

[2] Where an implementor of an urban planning facility project files an application for adjudication on expropriation of land within the project implementation period specified in the implementation plan, whether the Land Tribunal may render an adjudication on expropriation of land upon the said application even after the project implementation period has expired

[3] Whether there is a benefit in a lawsuit seeking cancellation of an urban planning facility project, where the project operator filed an application for adjudication of expropriation of the land within the project implementation period specified in the implementation plan but the project implementation period has expired while the application was rejected (affirmative)

[4] Whether the Land Tribunal may render an adjudication that makes it impossible for the Land Tribunal to implement the project for which the project approval has not been revoked (negative)

[1] A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to its original state by removing the illegal state caused by the illegal disposition, and protecting and remedying the rights and interests infringed or obstructed by the disposition. Thus, even if the illegal disposition is revoked, there is no benefit to seek the cancellation if it is impossible to restore

[2] In full view of the relevant provisions, such as Article 68 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002) and Article 17 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Act No. 6656 of Feb. 4, 2002), an implementor of an urban planning facility project shall take over or apply for a ruling on expropriation of land owned by another person under a private contract within the period of project implementation stipulated in the implementation plan for an urban planning facility project authorized and publicly notified at the latest, and if an implementor of an urban planning facility project applies for a ruling on expropriation of land within the said period of project implementation, the application is still valid even after the period of project implementation expires

[3] If an executor of an urban planning facility project files an application for adjudication of expropriation of land within the project implementation period specified in the implementation plan of an urban planning facility project, even if the project implementation period has expired while filing an application for cancellation of the adjudication to dismiss the application, the adjudication of expropriation can be implemented upon the application of the implementor of an urban planning facility project, and thus, the said project operator has a benefit in filing a lawsuit seeking cancellation of the adjudication.

[4] The former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656 of Feb. 4, 2002) deems the part belonging to the project approval which is the primary phase of expropriation and use as a public interest of the project and the decision of specific expropriation and use thereafter is entrusted to the project approval authority. In light of the provisions of Article 29 (2) of the same Act, which lists the nature of the land expropriation procedure and the matters to be decided by the Land Tribunal, the Land Tribunal shall not make adjudication such as the lack of the project approval itself unless the project approval is revoked by administrative litigation, i.e., it is impossible to implement the project.

[1] Article 12 of the Administrative Litigation Act / [2] Article 68 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002) (see Article 96 of the current National Land Planning and Utilization Act), Article 17 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works, Act No. 656 of Feb. 4, 2002), Article 29 (see Article 50 of the current Act on Acquisition of and Compensation for Land, etc. for Public Works, etc., for Public Works, Article 28 of the former Urban Planning Act (repealed by Article 2 of Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 200), Article 26 of the former Land Expropriation Act (see Article 96 of the current Act on Acquisition of and Compensation for Land, etc., Act and Article 266 of the former Land Expropriation Act)

[1] Supreme Court Decision 95Nu4568 delivered on July 11, 1995 (Gong1995Ha, 2814) Supreme Court Decision 95Nu17403 delivered on January 24, 1997 (Gong1997Sang, 664) Supreme Court Decision 2004Du13219 delivered on July 28, 2006 (Gong2006Ha, 1544) / [2] Supreme Court Decision 90Nu971 Delivered on November 26, 1991 (Gong192Sang, 323) / [4] Supreme Court Decision 2003Du9312 delivered on July 28, 2005 / [3] Supreme Court Decision 93Du93794 delivered on November 11, 1994; 93Du139375 delivered on July 39, 194

Seoul Metropolitan Area Environment (Law Firm two others, Counsel for the defendant-appellant)

East Asia Corporation and two others

The Central Land Expropriation Committee

Gayang Industry Development Co., Ltd. and 5 others (Attorneys Ba-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Nu4470 delivered on July 9, 2004

The appeal is dismissed. The costs of appeal are assessed against the Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s development company, Defendant’s Intervenor’s Intervenor 2, and the remainder are assessed against the Defendant.

The grounds of appeal (the grounds of supplementary appeal submitted after expiration of the period are to the extent of supplement) are examined.

1. As to the assertion of misapprehension of legal principles as to the benefit of lawsuit

A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by excluding the state of illegality caused by the illegal disposition, and protecting or remedying the rights and interests infringed or interfered with the disposition. Thus, even if the cancellation of the illegal disposition is impossible to restore it to the original state, there is no benefit to seek the cancellation (Supreme Court Decisions 95Nu17403 delivered on January 24, 1997; 2004Du13219 delivered on July 28, 2006, etc.).

In addition, in full view of the relevant provisions, such as Article 68 of the Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002), Article 17 of the Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002; hereinafter the same), the implementer of an urban planning facility project shall file an application for adjudication on acquisition of land owned by another person or expropriation of land necessary for an urban planning facility project under private law within the project implementation period set forth in the implementation plan for an urban planning facility project authorized and publicly notified at the latest (Supreme Court Decisions 90Nu971 delivered on Nov. 26, 191; 2003Du9312 delivered on Jul. 28, 2005). If the implementer of an urban planning facility project files an application for adjudication on expropriation of land within the project implementation period, the Land Tribunal still becomes effective even after the project implementation period has expired.

As the court below duly admitted, if the plaintiff applied for the adjudication on expropriation of the land of this case within the period of project implementation stipulated in the implementation plan of the urban planning facility project of this case (hereinafter “project of this case”), even if the period of project implementation expired during the period of project implementation of this case’s motion to dismiss the application, the adjudication on expropriation of this case can be restored to its original state because the adjudication on expropriation of this case’s objection can be revoked upon the plaintiff’s motion. Thus, the plaintiff has a legal interest to seek the cancellation of the adjudication of

Although the court below is somewhat inappropriate in its reasoning, it is justified in its conclusion that the plaintiff has the interest in the lawsuit seeking the revocation of the judgment of this case, and there is no error in the misapprehension of legal principles as to the interest in the lawsuit as otherwise alleged in the ground of appeal

2. As to the assertion of misapprehension of legal principles as to the adjudication of expropriation

In light of Article 29(2) of the Land Expropriation Act, the part belonging to the project approval which is the primary phase of the expropriation and use shall be entrusted to the project approval agency in the determination of the public interest of the project, and the decision of specific expropriation and use thereafter shall be entrusted to the Land Tribunal. In light of the two-minutes of the land expropriation procedure and the nature of the project approval and the contents of the adjudication of the Land Tribunal, the Land Tribunal shall not make any adjudication such as making the project approval itself ineffective unless the project approval is cancelled by administrative litigation, i.e., making it impossible to implement the project (Supreme Court Decision 93Nu19375 delivered on November 11, 1994).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and found it difficult to transfer the land of this case to the project execution district of this case at the time of the decision to dismiss the application for expropriation of this case. Thus, even if there was no need to expropriate the land of this case due to administrative litigation or administrative disposition, so long as the project execution plan of this case was not revoked due to administrative disposition, the local Land Expropriation Committee of ○○ Metropolitan City cannot make a decision to dismiss the plaintiff's application for expropriation of this case itself, i.e., the local Land Expropriation Committee of ○○ Metropolitan City, ○○○ City, which makes it difficult to dismiss the application for expropriation of this case. Thus, the decision to dismiss the application for expropriation of this case by the local Land Expropriation Committee of this case of this case and the defendant's decision of this case is unlawful.

Furthermore, the lower court rejected the allegation by the Defendant Intervenor on the ground that the Defendant Intervenor’s assertion that the authorization of the implementation plan itself is null and void as the Mayor of Incheon Metropolitan City designates only the Plaintiff as the project implementer even though it is reasonable to jointly implement the instant project, including the Plaintiff, on the ground that such circumstance alone does not lead to a significant and objective defect in the authorization of the implementation plan.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to acceptance ruling as otherwise alleged in the ground of appeal

In addition, the argument that the project implementation plan of this case was extended when the conditions of the authorization have not been fulfilled and it is clear that the conditions of the authorization have not been fulfilled, and thus, the argument that the project implementation plan of this case is automatically null and void is not a legitimate ground for final appeal.

3. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against the Defendant’s Intervenor’s Intervenor’s supplementary intervenor’s development company, Defendant’s supplementary intervenor 2, and the remainder are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)