[1] Requirements for the application of the principle of the protection of trust to the acts of administrative agencies

[2] The case holding that the decision-making authority of the urban planning cannot be deemed as a violation of the principle of trust protection on the ground that the above-mentioned decision-making authority of the urban planning cannot be deemed as having expressed the public opinion that the above-mentioned decision-making authority would simultaneously make the decision-making authority of the urban planning with the authority to formulate the urban planning facilities (schools) and the cancellation of the natural scenic district, and that the other party did not take any measures to believe and protect the public notice on the draft of the urban planning

[3] The legal nature of urban planning = discretionary act and the standard for determining whether it is illegal

[1] In general administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency must express a public opinion that is the object of trust to an individual, second, the administrative agency should not be responsible to the individual when the expression of opinion is justified, and third, the administrative agency should have conducted any act that is equivalent to that of the individual, and third, the administrative agency should have conducted any act that is contrary to the above expression of opinion. Fourth, the administrative agency should make a disposition against the above expression of opinion so that the interests of the individual who trusted the expression of opinion may be infringed, and last, the principle of the protection of trust should not be likely to seriously undermine the public interest or legitimate interests of a third party if an administrative disposition is taken pursuant to the above expression of opinion. In other words, the principle of the administrative agency's trust is not for the existence of an administrative agency's act, but for the protection of a private person following the administrative agency's reliance and equivalent act.

[2] The case holding that the decision-making authority of the urban planning cannot be deemed as a violation of the principle of trust protection on the ground that it is difficult to view that the above-mentioned decision-making authority of the urban planning has expressed the public opinion to simultaneously make the decision of the above-mentioned two urban planning with the authority to formulate the urban planning facilities (schools) and the cancellation of the natural landscape district, and that the other party did not take any measures to believe and protect the public notice on the draft of the urban planning plan

[3] An urban planning is established by integrating and coordinating relevant administrative means in order to achieve a specific administrative objective, such as the construction, maintenance, and improvement of a city based on the professional and technical judgment on urban policies, and it is a discretionary act. Thus, insofar as there is no deviation or abuse of discretionary power, the determination of the urban planning cannot be deemed unlawful. Although the administrative body has a relatively wide range of planning discretion in drafting and determining a specific urban planning, there is a limitation that the interests of the persons involved in the urban planning should be fairly compared and compared to the public interest and private interest as well as between the public interest and private interest. Thus, in formulating and determining the urban planning, if the administrative body fails to balance the interests or fails to include the interests to be considered in the subject of consideration of the balance of interests, but lacks legitimacy and objectivity, the decision of the administrative plan can be deemed an illegal disposition that deviates from or abused the discretionary power, and also, the means for achieving the administrative purpose in accordance with the principle of proportionality (the principle of proportionality) should not be the minimum possible means to achieve the objective of the public interest.

[1] Article 4 (2) of the Administrative Procedures Act, Article 1 of the Administrative Litigation Act / [2] Articles 18, 19, 22, 23, 24, 25, and 98 of the Urban Planning Act, Articles 22 and 23 of the Enforcement Decree of the Urban Planning Act, Article 32 of the former Foreign Capital Inducement Promotion Act (repealed by Act No. 1802 of August 3, 196), Article 14 of the former Foreign Capital Inducement Act (amended by Act No. 3691 of December 31, 1983), Article 4 (2) of the Administrative Procedures Act, Article 1 of the Administrative Litigation Act / [3] Articles 1, 3, 3, 18, 19, Article 23 of the Urban Planning Act, Article 24 of the former Enforcement Decree of the Urban Planning Act, Article 23 of the Administrative Litigation Act, Article 24 of the Administrative Litigation Act

[1] Supreme Court Decision 98Du4061 delivered on May 8, 1998 (Gong1998Sang, 164), Supreme Court Decision 98Du19070 Delivered on March 9, 199 (Gong199Sang, 684), Supreme Court Decision 9Du1052 Delivered on May 25, 199 (Gong1999Ha, 1301), Supreme Court Decision 200Du8684 delivered on September 28, 200 (Gong201Ha, 2371), Supreme Court Decision 2001Du7259 delivered on November 9, 201 (Gong2002, 579Sang, 197Nu97989 delivered on July 29, 198, 209 (Gong2002,57)

Korean Commercial Law Firm (Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's decision on March 29, 200 square meters of land 17,000 square meters (the "1,700 square meters of claim in the complaint" seems to be a clerical error) in Seoul Special Metropolitan City, Gwangjin-gu, Seoul Special Metropolitan City, shall be revoked.

1. Details of the disposition;

A. On August 11, 200, the head of Gwangjin-gu Seoul Special Metropolitan City (Seoul Special Metropolitan City Mayor) cancelled 427 square-dong 427,600 square meters from the natural scenic zone to the second-class general residential zone (hereinafter referred to as the "cancellation of the natural scenic zone"), and (2) as well as the determination of 17,00 square meters for the land located in the same Dong as the urban planning facilities (schools), in addition to the determination of 81-5 square-dong 81-5 square-dong 17,000 square-dong 17,00 square-dong 17,00 square-dong 17,00 square-dong 17,000 square-dong 17,000 square-dong 8, he/she made a decision on urban planning facilities (park, road, public office building) on the land in the same Dong and made a public announcement

(b)A parcel of 17,00 square meters of land subject to the determination of the above urban planning facilities (schools) includes part of the land (total 3,056 square meters) located in 90-2, 427, 427-3, and 427-4, Seoul Special Metropolitan City, Gwangjin-gu, a factory site owned by the Plaintiff, and includes part of the same 427 square meters of land owned by the Plaintiff, which is the site for the cancellation of the above urban planning district. The Plaintiff did not raise any objection to the public notice of the above urban planning plan within the public inspection period

(c) On November 28, 200, the head of Gwangjin-gu requested the Defendant to change the urban planning use area and district and to determine the urban planning facilities. However, since the above area requires the securing of a pleasant urban environment and landscape and the maintenance of an adequate density, the Defendant is not reasonable to cancel the urban planning facilities (road, public office buildings) and returned to the head of Gwangjin-gu with the reason that the decision-making authority of urban planning facilities (road, office buildings) is delegated to the head of the Gu. On March 29, 2001, the decision of urban planning facilities (school) was submitted to the Seoul Metropolitan City Urban Planning Committee and subcommittees, and announced it in the Official Gazette (Seoul Metropolitan Government Notice No. 2001-86) (hereinafter referred to as the "disposition in this case").

[Based on Recognition] Evidence Nos. 1 through 3, Evidence No. 4-1 to 8, and Evidence No. 5

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant disposition is unlawful since it deviatess from and abused discretion in violation of the principle of trust protection.

(a)as regards public inspection and publication by the Gwangjin-gu Head of the Gu:

The head of Gwangjin-gu also drafted and publicly announced the cancellation of the above natural scenic zone and the determination of urban planning facilities (schools), and also made an oral explanation to the public officials of Gwangjin-gu Office that the cancellation of the above natural scenic zone and the determination of urban planning facilities are promoted at the same time, and expressed a public view that the disposition of this case would be determined simultaneously with the cancellation of the natural scenic zone. Although the plaintiff did not raise an objection against the above urban planning plan, the defendant violated the plaintiff's trust by making the disposition of this case without the cancellation of the natural scenic zone against the above expression of opinion.

(B) As to the laws and regulations at the time when the Plaintiff commenced investment in Korea

The Plaintiff, a foreign-invested enterprise, has a high level of protection interest with respect to legal acts accompanying compulsory measures, such as expropriation. In the 1960s, the Plaintiff, a foreign-invested enterprise, has a high level of protection interest with respect to a legal act involving compulsory expropriation. The Plaintiff, except for cases where a foreign-invested enterprise’s property is accepted by a government, such as guarantee of property rights of a foreign-invested enterprise and restriction on land expropriation, was enacted by Act No. 532, Jan. 1, 1960, and was repealed by Act No. 1802, Aug. 3, 1966, the foreign-invested enterprise was replaced by a foreign-invested enterprise legislation), and the foreign-invested enterprise started a business and conducted a large-scale investment and conducted a business with trust under the foreign-invested enterprise’s foreign-invested enterprise’s laws and regulations such as foreign-invested enterprise’s Foreign Capital Inducement Act (Act No. 1802, Aug. 3, 1966).

(2) The instant disposition is unlawful as it deviates from and abused discretion due to the lack of legitimate balancing between the public interest to which it is intended and the disadvantage that the Plaintiff would incur.

In other words, if school facilities are installed due to the disposition of this case, the plaintiff bears additional expenses such as expanding the pollution prevention facilities or relocating the site, and the defendant suffers enormous impediment to the business. Despite the land other than the land owned by the plaintiff, the defendant issued the disposition of this case, which unfairly limits the plaintiff's property right by the disposition of this case.

B. Relevant statutes

-the Urban Planning Act

Article 18 (Preparation Authority of Urban Planning) (1) Urban planning shall be drafted by the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun having jurisdiction over the urban planning zone concerned.

Article 19 (Drafting of Urban Planning) (1) Urban planning shall conform to the basic urban planning or metropolitan planning.

(2) The Minister of Construction and Transportation, the Mayor/Do Governor, or the head of Si/Gun shall, when he formulates an urban planning, prepare an urban planning book (referring to the planning map and the planning protocol; hereinafter the same shall apply) and a plan explanatory statement assisting such plan (including the results of the basic survey, the fund raising scheme, the results

Article 22 (Hearing Opinions of Residents and Local Councils) (1) The Minister of Construction and Transportation, the Mayor/Do Governor, or the head of a Si/Gun shall hear the opinions of residents when formulating an urban planning under Article 19, and shall reflect such opinions in the urban planning if deemed reasonable: Provided, That this shall not apply to matters requiring confidentiality for national defense (limited to those requested by the Minister of National Defense) or insignificant matters prescribed by Presidential Decree.

(4) Matters necessary for hearing opinions of residents under paragraph (1) shall be determined by the Municipal Ordinance of the local government concerned according to standards prescribed by Presidential Decree.

Article 23 (Determination Authority of Urban Planning) The urban planning shall be determined, directly by the Mayor/Do Governor or upon the request of the head of Si/Gun (the omission of the proviso).

Article 24 (Determination of Urban Planning) (3) Where the Minister of Construction and Transportation or a Mayor/Do Governor intends to determine an urban planning, he shall undergo deliberation by the Central Urban Planning Committee or the Urban Planning Committee established in the City/Do under Article 85 (proviso omitted).

(5) The provisions of paragraphs (1) through (4) shall apply mutatis mutandis to any modification to the determined urban planning: Provided, That this shall not apply to any modification to insignificant matters prescribed by the Presidential Decree.

(6) When the Minister of Construction and Transportation or the Mayor/Do governor has determined an urban planning, he shall publicly notify it as prescribed by the Presidential Decree, and have the related documents available for public perusal. In this case, the Minister of Construction and Transportation or the Do governor shall send the related documents to the relevant Special Metropolitan City Mayor, Metropolitan City Mayor, or head of Si

Article 25 (Effect of Decision on Urban Planning) (1) The decision on urban planning shall take effect 5 days after the date of public notice under Article 24 (6).

Article 98 (Delegation and Entrustment of Authority) (2) The authority of the Mayor/Do Governor under this Act may be delegated to the head of a Si/Gun/Gu, as prescribed by municipal ordinance of a City/Do. In such cases, the Mayor/Do Governor shall report the fact of delegation of authority to

-Enforcement Decree of the Urban Planning Act

Article 22 (Drafting of Urban Planning) (2) The Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun shall, when he intends to hear the opinions of residents in the formulation of urban planning under Article 22 (4) of the Act, announce the major contents of the urban planning in two or more daily newspapers mainly circulated in the Special Metropolitan City, Metropolitan Cities, Sis, or Guns, and make it available for public perusal for at least 14 days.

(3) A person who has an opinion with respect to the contents of an urban planning announced under paragraph (2) may submit a written opinion to the Special Metropolitan City Mayor, Metropolitan City Mayor, or head of Si/Gun within

(4) The Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun shall examine whether the opinions submitted under paragraph (3) should be reflected in the draft of urban planning within 60 days from the expiration of the public inspection date and notify the result to the person who submitted

When the head of Si/Gun (referring to the Mayor/Do Governor in cases where he/she applies for the determination of urban planning falling under any of subparagraphs 2 through 4 of Article 23 of the Act) intends to apply for the determination of urban planning under Article 23 of the Act, he/she shall submit to the Mayor/Do Governor (referring to the Minister of Construction and Transportation in cases where he/she applies for the determination of urban planning falling under any of subparagraphs 2 through 4 of Article 23 of the Act) a document and a specification of plan under Article 19 (2) of the Act along with the following documents:

1. Results of hearing the opinions of residents under Article 22 (1) of the Act;

- Seoul Metropolitan City Urban Planning Ordinance

Article 68 (Delegation of Authority) (1) of the Act shall delegate the affairs specified in attached Table 3 to the head of the Gu pursuant to Article 98 (2) of the Act.

(2) The delegation of duties under paragraph (1) shall, unless otherwise prescribed, be deemed to include incidental duties.

[Attachment 3] Delegation of Authority (Related to Article 68)

Name of Secretary

1. Affairs concerning the formulation of the following urban planning:

(a) Station;

(b) Gu;

(c) Urban planning facilities (excluding the construction of railroads, tracks, daytime roads and traffic squares abutting on them);

(d)Designation of district unit planning zones and district unit planning (including preliminary research);

(e) Handling resident proposals for the formulation of items (a) through (d);

2. The following affairs among matters concerning the determination, alteration, and public announcement of urban planning:

(a) Roads (limited to not more than 12m wide or Gu roads);

(g)Public office buildings (limited to those to local unit offices such as Dong offices, police boxes and post offices);

-The Foreign Capital Inducement Promotion Act (before it was repealed by Law No. 1802 of August 3, 1966)

Article 32 (Expropriation of Registered Enterprises) (1) The property of registered enterprises under this Act shall not be subject to compulsory expropriation or compulsory transfer of ownership, except where the Government expropriates it for public purposes.

(2) When the Government expropriates the properties under the preceding paragraph, it shall pay due compensation under the conditions as prescribed by the Acts, and such compensation shall be in the form of real compatibility and shall be the same completely as the expropriated properties.

- the former Foreign Capital Inducement Act (amended by Act No. 3691 of Dec. 31, 1983)

Article 14 (Guarantee of Property Invested by Foreign Investment) All property of a foreign-capital invested company shall be guaranteed under the conditions as prescribed by Acts.

Addenda No. 1802, 196

(1) This Act shall enter into force on the date 30 days have elapsed after its promulgation.

(2) The Foreign Capital Inducement Promotion Act and omission thereof shall be repealed from the date on which this Act enters into force.

(c) Markets:

(1) Determination on the assertion of violation of the principle of trust protection

(a)First, we examine the arguments regarding the public notice by the head of Gwangjin-gu.

In general, in administrative legal relations, the principle of the protection of trust is applied to the act of an administrative agency: first, the administrative agency must express the public opinion that is the object of trust to the individual; second, the administrative agency should not be responsible to the individual when the expression of opinion is justified; third, the individual should have trusted the expression of opinion; third, the administrative agency should have conducted any act corresponding thereto; fourth, the administrative agency should have made a disposition contrary to the above expression of opinion so that the interests of the individual who trusted the expression of opinion would be infringed; last, when taking an administrative disposition following the above expression of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (Supreme Court Decision 200Du8684 Decided September 28, 2001). In other words, the principle of the protection of trust is not to aim at the existence of an administrative agency's act, but to protect an individual's trust in the expression of public opinion of an administrative agency and any act corresponding thereto.

Meanwhile, according to Articles 18(1), 23, and 98(2) of the Urban Planning Act, Article 68 of the Seoul Metropolitan Government Ordinance on Urban Planning and Article 68(1) and 2 of the Seoul Metropolitan City Ordinance on Urban Planning, ① The formulation of urban planning is delegated to the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of a Si/Gun having jurisdiction over the relevant urban planning zone, and in the case of Seoul Metropolitan City, the affairs concerning the formulation of the above urban planning are delegated to the head of the Gu. ② The determination of urban planning is made by the Mayor/Do governor directly or at the request of the head of the Si/Gun, and in the case of Seoul Metropolitan City, the affairs concerning the determination, alteration, and public notice of urban planning for roads (limited to roads (limited to roads, police boxes, post offices, etc.) and public office buildings (limited to local unit offices such as Dong offices, police boxes, post offices, etc.)

In addition, according to Article 22 of the Urban Planning Act and Article 22 of the Enforcement Decree of the same Act, when an urban planning is formulated, the main contents of the urban planning shall be publicly announced in two or more daily newspapers so that the public may make the proposal available for public inspection for at least 14 days, and the person who has an opinion with respect to the contents of the publicly announced urban planning may submit a written opinion within the public inspection date. The person who has the authority to formulate the urban planning shall examine whether the opinion submitted is reflected in the draft of the urban planning within 60 days from the date the public inspection date expires and notify the person who has submitted the opinion of the result. As above, allowing the residents to hear the opinion in the urban planning as mentioned above, it means that the residents shall be given the residents the opportunity to present their opinions on the draft of the urban planning to guarantee and realize the rights of the persons related to

With respect to this case, it is difficult to view that the defendant, who is the authority to determine the above two urban planning at the same time, expressed the public opinion that the defendant, who is the authority to determine the above two urban planning plans, simultaneously with the cancellation of the disposition of this case and the cancellation of the natural landscape district (the determination of the urban planning facilities for public office buildings is delegated to the head of the Gu, and it is not possible at the same time to determine the urban planning facilities for the school determined by the defendant). In addition, the plaintiff did not take any measures to believe and protect the public notice of the draft of the urban planning as mentioned above by the head of Gwangjin-gu (the fact that the plaintiff did not raise an objection to the draft of the urban planning merely does not mean that the plaintiff has carried out any measures that can be protected in light of the legal effects of the submission of the residents' written opinion, etc.). The disposition of this case

(b)Next, we examine the arguments regarding the laws and regulations at the time that the plaintiff shall commence investment in Korea.

The principle of trust protection is that a foreign company, such as the Plaintiff, began to make an investment in Korea with the belief of the investment-related laws that were in force at that time, and thereafter, where the said investment-related laws were repealed or amended, it shall not mean that the said laws were applied to the said foreign company at any time or without repeal or amendment, or that the said laws should be applied to the said foreign company at any time, notwithstanding the repeal or amendment of the laws or regulations.

With respect to this case, the Foreign Capital Inducement Act, which was enforced in the 1960s after the Plaintiff started investment in Korea, was repealed on August 3, 1966 and replaced by the former Foreign Capital Inducement Act. According to Article 14 of the said Foreign Capital Inducement Act (amended by Act No. 3691 of Dec. 31, 1983), all property of a foreign investing enterprise is guaranteed as prescribed by the law. Thus, the Plaintiff’s assertion that the disposition of this case violated the principle of trust protection based on the wording of the Foreign Capital Inducement Promotion Act, which was repealed before 36 years ago, is without merit.

In addition, at the time of enforcement of the abolished Foreign Capital Inducement Promotion Act, the current local government can be seen as the concept of the government at the time of implementation of the local government system. Also, the calculation of compensation for losses due to expropriation at the time of implementation of the urban planning facility project is governed by Article 23(3) of the Constitution and relevant statutes, such as the Land Expropriation Act and the Public Compensation for Losses, etc., and "justifiable compensation" under the above constitutional provisions and relevant statutes mean the complete compensation that the objective property value of the expropriated property should be fully compensated in principle (see Supreme Court Decision 2000Du2426, Sept. 25, 2001). Thus, there is no reason to see any assertion of legitimate criticism made pursuant to the Constitution and relevant statutes, based on the text of the Act repealed before 36 years ago.

(2) Determination as to the assertion that there was a lack of profit balancing

An urban planning is a discretionary act that sets the standards for activities to realize certain order at a certain point in the future by integrating and coordinating administrative means related to each other in order to achieve specific administrative goals, such as construction, maintenance, improvement, etc. of a city, based on the professional and technical judgment on urban policies. Therefore, the urban planning decision cannot be deemed unlawful unless there is any deviation or abuse of discretionary power.

However, although the administrative body has a relatively wide range of planning discretion in formulating and determining a specific urban planning, there is a limitation that the interests of the persons related to the urban planning should be fairly compared and calculated among the public and private interests as well as the public and private interests. Thus, in a case where the administrative body fails to balance the interests in formulating and determining the urban planning, or omits the matters to be included in the subject of consideration of the balance of interests, or where the balance of interests is lacking legitimacy and objectivity, the decision of the administrative plan can be deemed an illegal disposition that deviates from and abused the discretionary power, and the means to achieve the administrative purpose under the principle of proportionality (the principle of proportionality) should be effective, appropriate, and possible minimum infringement, and at the same time, the means to achieve the administrative purpose should not be capable of infringing the public interest with which the introduction of the means is intended (see, e.g., Supreme Court Decisions 97Nu1501, Apr. 24, 1998; 9Nu1696, Sept. 6, 19696).

As to this case, considering the whole purport of the oral argument by the head of Gwangjin-gu Office on the records of Gap evidence Nos. 5, Eul evidence Nos. 3 through 7, Eul evidence Nos. 9 and 10, and the fact inquiry by this court, the first disposition of this case is not only for the plaintiff's land ownership but also for the plaintiff's land-related area Nos. 81 and 81-5, which is the area subject to the urban planning of this case. It is urgent to establish a school because the construction (2,261 households) has already been completed in the surrounding area, and there is an urgent need to establish a school. The above office of education requests the determination of urban planning facilities for the establishment of a school (24 classes in luminous, luminous, 24 classes, and 24 classes in e.g., the Seoul Special Metropolitan City Urban Planning Committee's deliberation on Feb. 21, 2001 and the determination of urban planning facilities for the improvement of the natural landscape of the city planning facilities of this case is not for the plaintiff's.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Han Han-chul (Presiding Judge)