Plaintiff 1 and one other (Law Firm Robs, Attorneys Kim Jong-tae et al., Counsel for the plaintiff-appellant)

South Ocean Market

Suwon District Court Decision 201Guhap5266 Decided June 26, 2012

November 6, 2012

1. All appeals filed by the plaintiffs are dismissed.

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

The judgment of the first instance shall be revoked. On September 15, 201, the defendant revoked the disposition of non-permission on land division application with respect to forest land division application with respect to forest land of 8,928 square meters in the Nam-do, Nam-do, Seoyang-do, Nam-do, Hanyang-do

1. Determination on the acceptance of the judgment of the first instance court and the plaintiffs' assertion

A. The reasoning of the judgment by the court concerning this case is that the reasoning of the judgment by the court is the same as the judgment by the court of first instance, except for the following determination of the plaintiffs' assertion by the court of first instance. Thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the text of

B. Judgment on the plaintiffs' assertion

(1) The Plaintiffs asserted that the instant operating guidelines are unconstitutional for the following reasons. ① The instant operating guidelines are excluded from the scope of delegation by superior statutes since they set forth matters not stipulated in superior statutes with respect to the form of land division prohibited. ② The instant operating guidelines are not in the form of municipal ordinances, but are restricted by administrative agencies without delegation of municipal ordinances, which violates Article 37(2) of the Constitution, which is the principle of restriction on fundamental rights. ③ The instant operating guidelines violate the principle of clarity under the Constitution. ④ The instant application for land division is distinguishable from those of other development activities stipulated in the National Land Development Act, etc., as it does not change any form of nature, and is distinguishable from those of other development activities, which are subject to permission. The instant operating guidelines were established by the administrative agencies prior to the enactment of the instant operating guidelines, and the instant operating guidelines were established by the administrative agencies prior to the enactment of the instant operating guidelines, which are in violation of the 10th operating guidelines, which are the principle of land division. The instant guidelines were established by the administrative agencies prior to the enactment of the instant operating guidelines.

살피건대, 이 사건 운영지침은 국토계획법 시행령 제56조 제1항 별지 1의2의 제2호 라목 ⑴㈐항의 허가기준을 구체화하는 것으로 법규로서는 효력이 없는 행정청 내부의 사무처리규칙 내지 재량준칙에 불과한 것임은 앞서 판단하였는바, 이 사건 운영지침은 대외적으로 국민을 구속하지 않으므로 이 사건 운영지침 자체의 위헌성 여부는 문제되지 않고, 이 사건 운영지침에 따른 이 사건 처분이 헌법상의 평등원칙, 비례원칙을 침해하여 재량권을 일탈·남용함으로써 헌법을 위반하였는지를 판단해야 한다. 따라서 이 사건 운영지침 자체가 헌법을 위반하였다는 취지의 원고들의 주장은 나아가 살필 필요 없이 이유 없다.

Article 83(1) of the former Enforcement Rule of the Act on Land Survey, Waterway Survey and Cadastral Records provides that "in the case of land subject to permission for division, a copy of the permission in the case of land subject to permission for division 1., and in the case of dividing land according to the final judgment of the court, the original or copy of the final judgment in the case of dividing land." The plaintiffs asserts that the additional request for permission under subparagraph 1 is contrary to the literal interpretation of the above provision even though the final judgment of the court is final and conclusive, and that the plaintiffs' application for division of this case is against the interpretation of the above provision, and it does not intend to regulate the National Land Planning and Utilization Act because

In full view of the fact that the act of partition of the forest of this case constitutes a development act subject to permission pursuant to Article 56 (1) 4 of the National Land Planning and Utilization Act and subparagraph 5 (a) of Article 51 of the Enforcement Decree of the same Act, Article 83 (1) of the former Enforcement Decree of the Land Survey, Waterway Survey and Cadastral Records Act provides that "in the case of land subject to permission for partition, a copy of permission shall be attached", and the purport of each provision of the National Land Planning and Utilization Act, the former National Land Planning Act, the former Land Survey, Waterway Survey and Cadastral Records Act, and the nature of the lawsuit for partition of the forest of this case submitted by the plaintiffs for filing an application for partition of the forest of this case, it is difficult to view that the final judgment on partition of the forest of this case is replaced with the permission on partition of forest under the National Land Planning and Utilization Act. Thus, even if there exists a final judgment on partition of

Article 37(2) of the Constitution of the Republic of Korea is a violation of Article 37(2) of the Constitution since the management guidelines of the instant case do not regulate the planned real estate in advance, but have incurred a bona fide victim after applying it to the persons who concluded the sales contract prior to the establishment of the operation guidelines of the instant case. The application for land division of this case is not subject to the operation guidelines of the instant case; there are cases that the Defendant permitted land division of the land in the vicinity of the instant forest; the Defendant must be bound by these precedents; the operation guidelines of the instant case deviates from the limits of discretion prescribed by the superior laws and regulations; the application of discretionary rules without considering specific circumstances; the application of the discretionary rules goes against the minimum and reasonableness of the infringement; the violation of the principle of proportionality against the minimum and reasonableness of the infringement; the grounds for disposition are abstract and thus the incorrect facts of the grounds for disposition are found to be unlawful.

On the other hand, the application for land division of this case constitutes land division in the form of housing site and Baduk-type, which is determined to be possible to limit the application under the operating guidelines of this case, and there is no illegality of deviation or abuse of discretionary authority in the disposition of this case. The plaintiffs' assertion is without merit, on the ground that the defendant permitted land division before March 17, 201, which was established the operating guidelines of this case and applied the operating guidelines of this case, and did not permit land division in the case of applying the operating guidelines of this case to the case of applying the management guidelines of this case ( even if the contract was concluded before it was concluded before it), it cannot be deemed that there was an error of deviation or abuse of discretionary authority in the disposition of this case in accordance with the operation guidelines

Applicant's other arguments in the trial of the plaintiffs are not different from the allegations in the trial of the first instance, and since the judgment of the first instance is judged properly, the plaintiffs' assertion is without merit.

2. Conclusion

Therefore, the judgment of the first instance is just, and the plaintiffs' appeal is dismissed in entirety as there is no ground.

Judges Sung Pung-tae (Presiding Judge)