Whether a building permit accompanied by an alteration of the form and quality of land under the National Land Planning and Utilization Act constitutes a discretionary act (affirmative), and the subject of judicial review of an administrative agency’s discretionary act

Article 11 of the Building Act, Article 56(1)2 of the National Land Planning and Utilization Act, Article 27 of the Administrative Litigation Act

Supreme Court Decision 2004Du6181 Decided July 14, 2005 (Gong2005Ha, 1353) Supreme Court Decision 2009Du1960 Decided February 25, 2010

Plaintiff

Kim Sea Market (Law Firm International, Attorneys Hong-sung et al., Counsel for the plaintiff-appellant)

Busan High Court (Chowon) Decision 2011Nu1071 decided April 11, 2013

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

The permission to change the form and quality of land under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) shall be granted discretion to administrative agencies in determining whether the prohibited requirements are prescribed as indefinite concepts, and thus, permission to change the form and quality of land pursuant to the National Land Planning and Utilization Act, which entails changes in the form and quality of land, belongs to discretionary acts. Meanwhile, in principle, judicial review on discretionary acts is limited to whether there is deviation or abuse of discretionary authority, taking into account the possibility of public interests at the discretion of administrative agencies, and the examination on whether there is deviation or abuse of discretionary authority is subject to such determination of mistake of facts and violation of the principle of proportionality and equality (see, e.g., Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 2009Du19960, Feb. 25, 2010).

Meanwhile, according to the standards for establishing private charnel facilities prescribed in Article 15(4) of the Act on Funeral Services, etc. and Article 18(1) [Attachment Table 3] of the Enforcement Decree of the same Act, a private charnel facility established by an incorporated foundation shall be installed with a access road of at least 5 meters wide. According to Article 58(1)4 of the National Land Planning and Utilization Act, permission for development activities can only be granted in harmony with the surrounding environment or landscape, such as the actual use of land in the surrounding area, gradient of land, status of trees

However, according to the reasoning of the judgment of the first instance as cited by the court below and the records, the part of the part of the access roads from the national highways No. 58 to the wing Party of this case for which the plaintiff applied for a building permit is less than 5m wide. The land of this case, which is the site of the instant wing Party, is planted as forest land by trees such as night trees, pine trees, Arabic trees, and trac trees, etc., but the scale of standing timber is up to 117.38% of the average scale of standing timber at the time of Kim Sea. On the other hand, around the land of this case, the “farc agro-industrial complex” was formed and the erosion control is surrounded by factory. On the other hand, in the case of Kimhae-si, only an enshrinement facility already installed as of 2009, which appropriated the demand and remains after 27,000.

In light of these facts, the instant charnel Party did not meet the standards for installation of private charnel facilities as stipulated by the Act on Funeral Services, etc. at the time of the instant disposition, and it is difficult to view that the instant charnel Party’s construction is in harmony with the actual status of land use in its neighboring areas, and it is reasonable to harm the natural environment and landscape due to damage to forests for the construction of the instant charnel Party, etc., and it is anticipated that there may also be negative impacts on the aspect of efficient utilization of land. Thus, even if considering various circumstances asserted by the Plaintiff, such as that the standing timber axis or average gradient of the instant land does not conflict with the standards for permission for changing the form and quality of land under Article 20(2)1 and 2 of the National Land Planning Act and the former Urban Planning Ordinance (amended by Ordinance No. 811, Dec. 31, 2010) upon delegation of the Enforcement Decree of the National Land Planning Act, it cannot be deemed that there were no errors of law by the Defendant’s alteration of the form and quality of land or the alteration of discretionary authority, such as deviation or abuse of the instant disposition.

Therefore, the court below erred by misapprehending the legal principles as to judicial review of discretionary action, which affected the conclusion of the judgment, on the grounds as stated in its reasoning.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)