[1] Whether the former Act on Special Measures for Designation and Management of Development Restriction Zones is related to the former Act on National Land Planning and Utilization (affirmative)

[2] In a case where Gap corporation was permitted to engage in an act in a development-restricted zone for the installation of waste disposal facilities within the development-restricted zone, and the head of the competent Gu revoked the building permit on the ground that the above waste disposal facility was not installed as an urban planning facility, the case holding that the disposition was

[1] In full view of Articles 38(1) and (2), 80, and 43(2) of the former National Land Planning and Utilization Act (amended by Act No. 9861, Dec. 29, 2009; hereinafter “former National Land Planning Act”); Articles 1 and 12 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436, Feb. 6, 2009; hereinafter “former Development Restriction Zone Act”); legislative intent and purpose of the above Act; etc., restriction of activities in development restriction zones is related to the former National Land Planning Act.

[2] In a case where Company A was permitted to engage in an act in a development-restricted area for the installation of waste disposal facilities with a total floor area of 1,127.8 square meters and a daily waste disposal capacity of 24t in a development-restricted area, and the above waste disposal facilities not installed as urban planning facilities by the head of the competent Gu violate Article 43 of the former National Land Planning and Utilization Act (amended by Act No. 9861 of Dec. 29, 2009; hereinafter “former National Land Planning Act”), the court affirmed the judgment below that the above disposal was unlawful on the ground that the above waste disposal facilities with a total floor area of less than 1,50 square meters in a development-restricted area constituted infrastructure for which permission from the head of the competent Si/Gun/Gu can be installed as urban planning facilities without necessity for installation under the former Act on Special Measures for Designation and Management of Development-Restricted Areas under the Special Act on the Designation and Management of Development-Restricted Areas.

[1] Articles 1, 38(1) and (2), 43(1) and (2), and 80 of the former National Land Planning and Utilization Act (amended by Act No. 9861, Dec. 29, 2009); Articles 1 and 12 of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436, Feb. 6, 2009); Article 13(1) [Attachment 1] of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 21670, Aug. 5, 2009); Article 38(1) and (2) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9861, Dec. 29, 2009); Article 16(1) of the former Enforcement Decree of the Act on Special Measures for Construction and Management of Urban Planning Facilities (amended by Presidential Decree No. 1060, Jan. 1, 20, and 97

Han Jae-in Co., Ltd. (Law Firm Square, Attorneys Seo-gu et al., Counsel for the plaintiff-appellant)

The head of Nam-gu Gwangju Metropolitan City (Attorney Lee Jong-chul, Counsel for defendant-appellee)

Defendant Intervenor (Appointed Party) 1 and one other

Gwangju High Court Decision 2012Nu903 decided January 24, 2013

The appeal is dismissed. The costs of appeal are assessed against the Intervenor (Appointed Party) and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. Where the law conflicts and conflicts, the new law should take precedence over the former law, and the special law should take precedence over the general law. In such cases, whether the law conflicts and conflicts with each other should be determined by comprehensively examining the legislative purpose, provisions, scope of application, etc. of each law (see Supreme Court Decision 2010Du16714, May 24, 2012, etc.).

2. Article 43(1) of the former National Land Planning and Utilization Act (amended by Act No. 9861, Dec. 29, 2009; hereinafter “National Land Planning Act”) provides that the type, name, location, scale, etc. of infrastructure shall be determined by an urban management plan in advance in order to install infrastructure. Paragraph (2) provides that matters necessary for the determination, structure, and standards for installation of urban planning facilities, which are determined by an urban management plan among infrastructure, shall be determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs, and Article 156 of the former Rules on the Determination, Structure, and Installation Standards of Urban Planning Facilities (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 187, Dec. 14, 2009) shall be excluded from waste disposal facilities falling under subparagraph 1 of Article 38 of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of Ministry of Land, Transport and Maritime Affairs No. 359, Jan. 15, 2010).

Meanwhile, according to Article 12(1)1 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436 of Feb. 6, 2009; hereinafter “Development Restriction Zones Act”) and Article 13(1) [Attachment Table 1] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21670 of Aug. 5, 2009), the same infrastructure as waste disposal facilities in a development restriction zone shall be installed as urban planning facilities only where the total floor area of a building is at least 1,50 square meters, and a change in the form and quality of land is at least 5,00 square meters.

The instant waste disposal facility that the Plaintiff intends to install in a development-restricted area is 2,185 square meters of a building site, 1,127.8 square meters of a total floor area, and 24t area of a daily waste disposal capacity. As above, according to the National Land Planning Act and subordinate statutes, since the daily waste disposal capacity is at least 10 square meters, it is subject to the National Land Planning Act and should be installed as an urban planning facility in accordance with the procedures prescribed by the Act. However, according to the Act and subordinate statutes of the development-restricted area, it is possible to install the instant waste disposal facility with the permission of the head of a Si/Gun/Gu, which is not necessary

3. The National Land Planning Act was enacted with the aim of promoting public welfare and improving the quality of life of citizens by prescribing matters necessary for the formulation and implementation of plans for utilization, development, and preservation of national land. Article 38(1) of the same Act provides that, in the event that urban development is necessary to prevent any disorderly expansion of cities and to preserve the natural environment surrounding cities in order to ensure the healthy living environment for citizens, the Minister of Land, Transport and Maritime Affairs may determine the designation or alteration of development restriction zones through an urban management plan. Article 38(2) of the same Act provides that matters necessary for the designation or alteration of development restriction zones shall be separately prescribed by Act. Article 80 of the Act provides that “The restriction on activities in development restriction zones and other matters necessary for the management of development restriction zones shall be separately prescribed by Act.” Accordingly, Article 1 of the Development Restriction Zones Act provides that “This Act provides for the restriction on designation of development restriction zones and restriction on activities in development restriction zones, support for residents, purchase of land, and other matters necessary for the efficient management of development restriction zones to prevent any disorderly spread of cities and ensure healthy living environment for citizens in urban areas.”

Meanwhile, Article 43(2) of the National Land Planning and Utilization Act provides that the standards for the determination, structure, and installation of urban planning facilities shall be governed by other Acts, if there are special provisions in other Acts. The Development Restriction Zone Act and its Enforcement Decree specifically stipulate matters concerning restrictions on acts within development restriction zones, and stipulate that the facilities should be installed as urban planning facilities only in certain cases depending on the type of each facility, the scale of each building, etc.

In full view of the structure and contents of the National Land Planning Act, the provisions of the Development Restriction Zone Act, and the legislative intent and purpose of the above Acts, the Act on the Restriction of Activities in Development Restriction Zones is related to the National Land Planning Act. Therefore, the instant waste disposal facilities to be installed in development restriction zones do not need to be installed as urban planning facilities in accordance with the provisions of the Special Act on the Development Restriction Zones, and it is possible to install them upon

4. The court below held that this case's disposition was unlawful on the premise that this case's waste disposal facilities constitute infrastructure that can be installed without urban planning facilities pursuant to the laws and regulations on development restriction zones, and thus should be installed as urban planning facilities pursuant to Article 43 (1) of the National Land Planning and Utilization Act. The judgment below is just in accordance with the above legal principles, and there is no error of misapprehending the legal principles on the priority principle of special law or omitting judgment, as otherwise

In addition, the lower court’s determination that the instant waste disposal facility should not be installed as an urban planning facility is justifiable. As such, the remaining grounds of appeal as to whether the lower court’s assumptive determination is justifiable need not further be

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Kim Shin (Presiding Justice)