In a case where Gap who owned the land within the site determined to establish a school, which is an urban planning facility, pursuant to Article 30 of the former National Land Planning and Utilization Act, requested the competent administrative agency to abolish the urban planning facility, but the response was rejected, the case holding that the response was unlawful as it excessively restricted Gap's exercise of property rights and exceeded and abused discretion.

In a case where Party A, who owns land within the site determined to establish a school which is an urban planning facility pursuant to Article 30 of the former National Land Planning and Utilization Act (amended by Act No. 6841 of Dec. 30, 2002; hereinafter “former National Land Planning Act”), requested the competent administrative agency to abolish the urban planning facility, but rejected the request, the case holding that the above response is unlawful since it excessively limits Party A’s exercise of property rights because it constitutes a case where Party A’s exercise of property rights without any specific alternative, or where Party A’s exercise of property rights is deemed to lack legitimacy and objectivity of balancing profits in drafting and determining the administrative plan, and thus, Party A’s exercise of property rights is deemed to be an abuse of discretionary power, in light of the following: (a) the above land has not been executed for a long time after the determination as an urban planning facility was revoked; and (b) even if Party A

Articles 2 subparag. 6, 24, 26, 29(1), 30, and 64 of the former National Land Planning and Utilization Act (amended by Act No. 6841 of Dec. 30, 2002); Article 25 of the Enforcement Decree of the National Land Planning and Utilization Act

Plaintiff (Attorney Song Jae-chul, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor

June 13, 2014

1. The Defendant’s rejection disposition of changing urban planning facilities (schools) against the Plaintiff on September 24, 2013 is revoked.

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

The same shall apply to the order.

1. Basic facts and circumstances of dispositions;

A. On January 17, 1989, the Plaintiff acquired ownership of 394.4 square meters (hereinafter “instant land”) in Jyang-dong, Seoul, Gwangjin-gu, Seoul, and completed registration of ownership preservation on October 29, 1990, by constructing mentors, bricks, and lux roof 2 houses with each floor area of 100.98 square meters on that ground.

B. On January 15, 2003, the Defendant, based on Article 30 of the former National Land Planning and Utilization Act (amended by Act No. 6841 of Dec. 30, 2002), and Article 25 of the Enforcement Decree of the above Act, intended to establish ○ Elementary School, an urban planning facility, pursuant to Article 203-5 of the Enforcement Decree of the above Act, determined to include the name of the land as an urban planning facility (location 2 omitted), 1,047.6m2, 265.5m2, 265m2, 4,47.5m2, 180m2, and 180m2,265m2, and 4,476m2, among 4,341.5m2, 180m2, 180m2 as an urban planning facility (schools), and subsequently, changed the name of the land to a school site to secure additional urban planning facility as a result of the change of the existing urban planning facility.

C. On December 30, 201, the head of the Dong-gu Office of Education requested the head of Gwangjin-gu on September 5, 201, the head of the Dong-gu Office of Education to formulate the “Modification (Abolition) of Urban Planning Facilities (School Facilities)” on the instant school site (hereinafter “Abolition”) on the ground that there is no need to establish the ○ Elementary School any more due to the decline of the number of students due to the decline in the birth rate, and the approval was obtained for the cancellation of the establishment of the ○ Elementary School on December 30, 2011.

D. On November 27, 2012, the head of Gwangjin-gu requested the Defendant to abolish the school facilities on November 27, 2012, following consultation with the urban planning committee. On February 6, 2013, the head of Gwangjin-gu requested the Defendant to abolish the school facilities on the following grounds: “The infringement of the private property rights of the relevant local residents occurs remarkably.”

E. However, on April 26, 2013, the Defendant rejected the application by the head of Gwangjin-gu Office on the following grounds: “After careful examination of the surrounding conditions, the actual use of land, the impact on land ownership and surrounding areas, and the securing of future public facilities, the Defendant shall be considered as having reflected it, and then it shall be considered as having been modified.”

F. Meanwhile, among the instant school sites, ( Address 2 omitted), ( Address 3 omitted), and ( Address 4 omitted) were designated as urban planning facilities, and the Superintendent of the Seoul Special Metropolitan City Office of Education purchased them from each owner, and as a school establishment plan was revoked, the ( Address 2 omitted) 2,982.5 square meters in size was redeemed to the non-party, the original owner, and the non-party, the non-party, etc., on June 3, 2013.

G. On June 18, 2013, the head of Gwangjin-gu filed an application for the closure of the school site of this case with the Defendant on the ground that the infringement of property rights by landowners and the abolition of the school site of this case was requested for reasonable land use, but the Defendant sent the following replies to the head of Gwangjin-gu on July 1, 2013.

The Table contained in the main text - The (No. 2 omitted) of the instant school site is deemed to have re-requested the decision on the abolition of school facilities due to the repurchase of the (No. 2 omitted) land in the instant school site. - State and public land is obligated to convert the unexecution school site into public facilities, and the private land is, in principle, abolished through the formulation of a district unit plan, if it is impracticable to purchase it for public purposes. Therefore, outside of the Seoul Special Metropolitan City Office of Education (No. 3 omitted) one parcel, which is owned by the Seoul Special Metropolitan City superintendent of education, shall be used as public facilities, and a district unit plan shall be formulated so that necessary infrastructure may be installed in consideration of local conditions, and the impact on surrounding areas may be closely examined to establish a reasonable development plan

H. On August 19, 2013, the head of Gwangjin-gu notified the Defendant that “The Defendant requires the establishment of a district unit planning (development plan) for the abolition of school facilities, so if the landowner proposes the establishment of the plan, he/she will re-request the closure of school facilities to the Defendant.”

(i) Around September 2013, the Plaintiff requested the Defendant to abolish school facilities of the instant land as his/her property right is seriously infringed. However, on September 24, 2013, the Defendant sent a reply to the effect that “the Defendant will handle the instant land in accordance with the relevant regulations in cases where the head of Gwangjin-gu Office prepares a plan for future formulation of school facilities and requests the Defendant to abolish the school facilities” under the title “the civil petition response for the closure of school facilities” (hereinafter referred to as “the instant reply”) and “the head of Gwangjin-gu Office requested the Defendant to abolish the school facilities, taking into account the circumstances such as the revocation of the establishment of the school and the redemption of certain land, etc., the drafting authority notified the head of Gwangjin-gu Office on July 1, 2013 so

(j) On September 16, 2013, the Plaintiff filed a request with the Central Administrative Appeals Commission for the revocation of the instant reply, but the Central Administrative Appeals Commission dismissed the Plaintiff’s request on December 24, 2013, on the ground that “The Plaintiff is recognized as having the right to file an application in accordance with the relevant laws and regulations or the cooking, but the instant reply merely notified the Defendant through consultation with the head of Gwangjin-gu Office that it was a plan to proceed with the abolition of school facilities, and thus cannot be deemed as a rejection disposition.”

(k) On the other hand, on November 15, 2013, the Plaintiff applied for a building permit to construct a new house on the instant land to the head of Gwangjin-gu Office, but on December 4, 2013, the head of Gwangjin-gu Office rendered a non-permission disposition on the ground that “the instant land may not be constructed as an urban planning facility (schools) pursuant to Article 64(1) of the National Land Planning and Utilization Act.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 9, Gap evidence 13, 15, 16, Eul evidence 1 through 7, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The parties' assertion

As to the plaintiff's assertion that the response of this case is a rejection disposition against the application for the abolition of school facilities, the defendant is not entitled to apply for the alteration of the urban management plan, that is, the abolition of school facilities, and the response of this case is merely a notification of the plan to proceed with the future abolition of school facilities, and it does not constitute a rejection disposition. Thus, the lawsuit of this case is unlawful since it seeks the revocation of this case

B. Determination

1) If the instant reply constitutes “a rejection disposition” that is the subject of an appeal litigation, the right to request the Plaintiff to abolish school facilities must be the right to file an application in accordance with the relevant law or sound reasoning. The instant reply ought to be deemed to constitute “a rejection” as to the Plaintiff’s application.

2) First, we examine whether the Plaintiff has a statutory or cooking right to request the closure of school facilities.

Article 24 of the National Land Planning and Utilization Act provides that the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun shall draw up an urban management plan within his/her jurisdiction. Article 29(1) of the same Act provides that the relevant Mayor shall determine an urban management plan in the case of a large city with a population of 50,00 or more, and that the head of a Si/Gun shall draw up and decide an urban management plan in the case of a Si/Gun with a population of 50,00 or more. Meanwhile, Article 26(1) of the National Land Planning and Utilization Act provides that residents, including interested parties, may propose the formulation of an urban management plan concerning specific matters to the drafting authority (Article 2 subparag. 6 of the National Land Planning and Utilization Act). In addition, Article 26(2) of the National Land Planning and Utilization Act provides that the person who has the right to draw up an urban management plan and the right to draw up an administrative plan shall be deemed legitimate if they are no more than 1.

Therefore, the Plaintiff who owns land and buildings within the instant school site, which is an urban planning facility, has the right to file an application under laws or cooking to the Defendant, who is the authority to decide on the urban management plan concerning the instant school site under the National Land Planning Act, for the modification of the urban management plan concerning the instant school site, i.

3) Next, as to whether the reply in this case was “refluent” upon the Plaintiff’s request, the Defendant sent an answer to the purport of rejecting school facilities through several times from the head of Gwangjin-gu to the effect that “after establishing a district unit plan, the Defendant again requested the closure of school facilities.” The reply in this case was made with the same content as the response given to the head of Gwangjin-gu, and the head of Gwangjin-gu notified the land owner of the plan to propose a district unit plan according to the Defendant’s response and did not take any specific plans or measures thereafter. In light of the Defendant’s response, the closure of school facilities in this case would actually take the actual or long-term time to close the school site in consultation with the head of Gwangjin-gu, and it is reasonable to deem that the response in this case constitutes “disposition” as an action of refusal to abolish the Plaintiff’s school facilities as an actual act of refusal to abolish the Plaintiff’s school facilities through consultation with the head of Gwangjin-gu.

4) Accordingly, the Defendant’s main defense is without merit.

3. Whether the reply of this case is lawful

A. The plaintiff's assertion

As the land of this case is determined as an urban planning facility, the Plaintiff’s exercise of property rights has been for a period of ten years, such as not being able to rebuild or construct a building on the ground without any compensation. However, since the establishment of an elementary school, which was scheduled to be established in the school site of this case, was revoked on December 30, 2011, the land of this case was no longer necessary to maintain it as an urban planning facility, even though it did not abolish the school facility. Accordingly, the Defendant did not abolish the school facility. This is merely because there was no public interest that the Plaintiff obtained due to the refusal to abolish the school facility compared to the disadvantage suffered by the Plaintiff, or because it was merely a low level of public interest that would have accrued

B. Relevant statutes

[Attachment] The entry in the relevant statutes is as follows.

C. Determination

1) As seen earlier, in formulating and determining an administrative plan, such as an urban management plan, there is a restriction that an administrative body should properly compare the interests of the persons involved in the administrative plan not only between public and private interests but also between public and private interests. In a case where the balancing of interests is not performed at all or where the matters to be included in the assessment of interests are omitted, or where the balancing of interests lacks legitimacy and objectivity, the determination of the administrative plan is unlawful due to the defect in the assessment of interests (see, e.g., Supreme Court Decisions 96Nu8567, Nov. 29, 196; 2010Du21464, Feb. 24, 201). The foregoing legal doctrine likewise applies to a case where an urban planning facility right holder has determined whether to accept an application for the alteration of the urban planning facility plan as to the formulation proposal of urban planning plan by residents under Article 26 of the National Land Planning Act and to determine whether to accept an application for the alteration of the urban planning facility plan within 209Du20169, Feb. 119, 20197.

2) In light of the above legal principles, in light of the following circumstances, the instant reply is excessively limited to the Plaintiff’s exercise of the Plaintiff’s property right, and thus, constitutes a case where: (a) the imposition of a balance of interests was not granted or the lack of legitimacy and objectivity of the balance of interests was lacking; and (b) it is unlawful as it deviates from and abused discretion.

A) The instant land was determined as an urban planning facility (school) on August 5, 2004, and thereafter, it became impossible to use it for the original purpose as a result of the cancellation of the establishment of a school in need of urgency. Nevertheless, the Defendant, without any particular alternative, maintains the determination of urban planning facilities and limits the exercise of the Plaintiff’s property right for a long period of time.

B) The head of Seongbuk-gu Seoul Metropolitan Office of Education and the head of Gwangjin-gu Office of Education also requested the closure of school facilities of the school site of this case, and in particular, the head of the above district office of education did not have any demand even after investigating whether the school site of this case can be used for other public projects. In such a situation, there is no need to maintain the school site of this case as urban planning facilities.

C) Since the instant land is a station area of a building zone where multi-households and multi-households are not concentrated, the Defendant is required to establish a district unit plan and abolish school facilities systematically. However, the Defendant appears to have asserted only abstract and general necessity without any specific basis or plan to support such assertion. Moreover, the instant land is merely a relatively small area of land where one unit of the second floor house is constructed. As such, even if school facilities are abolished on the land originally designated as a school site, it does not seem to have a significant impact on traffic and environment in the neighboring area.

D) On the request for the closure of school facilities by the head of Gwangjin-gu Office, the Defendant: “In principle, the unexecution site should be abolished through the establishment of a district unit plan; and the head of Gwangjin-gu should establish a district unit plan. However, the above principle is merely an internal guidelines without legal basis, and thus, it seems too convenient for the Defendant to refuse the closure of school facilities without considering the interests of the interested parties in a specific case.

E) The head of Gwangjin-gu established a district unit plan according to the above defendant's demand, but did not have prepared any uniform plan, so the head of Gwangjin-gu requested the owner of the ( Address 2 omitted) branch of the school site of this case to make a proposal about the establishment of the district unit plan, and notified the defendant to re-request the closure of school facilities after such proposal was made. This seems to be the intention of not requesting the closure of school facilities if there is no proposal for the establishment of the residents on the school site of this case. However, Article 26 of the National Land Planning and Utilization Act only stipulates that residents can propose the formulation of the district unit plan, but does not compel the residents to propose the formulation of the district unit plan, so the interested parties of the school site of this case may arbitrarily determine whether to draft the district unit plan and its timing. Although the plaintiff can also make such a proposal as to the school site of this case as a resident, it seems that there is no reality to make such a proposal to the plaintiff who owns some part of the school site of this case.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Lee Jong-hun (Presiding Judge)

1) Article 139(2) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and Article 68(1) [Attachment 4] of the Seoul Special Metropolitan City Ordinance on Urban Planning shall delegate the right to draft to the head of Gwangjin-gu.