[1] Whether an application for permission for the establishment of a gas station may be refused on the grounds of the necessity for important public interest other than the restrictions under the relevant laws and regulations (affirmative)

[2] In a case where a person meeting the requirements for a gas station license under the Petroleum Business Act fails to separately meet the standards for the installation of a gas station under the Building Act and other Acts and subordinate statutes, whether a legitimate permission may be granted (negative)

[3] The case holding that the basic factual relations are identical to the grounds for the application for permission for petroleum selling business, which stated in the first non-permission disposition and that the above application as alleged in the appeal litigation did not meet the requirements for permission for change of form and quality, and that the public interest in the urban environment preservation is required in the urban area, as to the land scheduled to be constructed as gas stations

[4] Whether the notice of the area subject to permission under Article 4 (2) of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Quality and Quality is a requirement for determining whether to grant permission for change of land

[1] Where an application for permission for the installation of a gas station is not contrary to the restrictions stipulated under the relevant laws and regulations, the person holding the permission for the installation of the gas station shall grant such permission unless there are special circumstances, and it shall not refuse such permission on the grounds other than the grounds for restriction stipulated under the relevant laws and regulations. However, the permission may be refused if the result of the examination requires serious public interest

[2] The related Acts and subordinate statutes stipulating restrictions on the establishment of gas stations include not only the former Petroleum Business Act (amended by Act No. 5092 of Dec. 29, 1995), the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 15230 of Dec. 31, 1996), and the public notice given by the Mayor/Do Governor delegated by the Enforcement Decree of the former Petroleum Business Act (amended by Presidential Decree No. 15230 of Dec. 31, 1996), but also the standards for the installation of gas stations, such as the Building Act, the Urban Planning Act, the Fire Services Act, the Housing Construction Promotion Act, etc., separately stipulate the standards for the installation of gas stations. In light of the legislative purpose, provisions, scope of application, etc. of gas stations permission, it shall not be construed that the Petroleum Business Act is applied exclusively prior to the Building Act, etc., even if a person meeting the standards for the permission of

[3] The case holding that the basic factual relations are identical to the grounds for the application for permission for petroleum selling business, which stated in the first non-permission disposition and that the above application as alleged in the appeal litigation did not meet the requirements for permission for change of form and quality, and that the public interest in the urban environment preservation is required in the urban area, as to the land scheduled to be constructed as gas stations

[4] If a green belt area under Article 4 (1) 1 of the former Regulations on Criteria, etc. for Permission for Change, etc. of Land Quality and Quality (amended by Ordinance No. 143 of Jun. 5, 1998) under delegation of Article 4 (1) and (7) of the Urban Planning Act falls under "a green belt area which is likely to seriously harm the surrounding environment, reputation, aesthetic view, etc. due to the implementation of the project," the issue of public notice under Article 4 (2) of the same Rule does not constitute a requirement for determining whether to permit change of land form and quality.

[1] Article 12 of the former Petroleum Business Act (amended by Act No. 5092 of Dec. 29, 1995) / [2] Article 1 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act, Article 12 of the former Petroleum Business Act (amended by Act No. 5092 of Dec. 29, 1995) / [3] Article 27 of the Administrative Litigation Act / [general administrative litigation] Article 4 of the Urban Planning Act, Article 4 of the Urban Planning Act, Article 4 (1) and (2) of the former Rules on Standards, etc. for Change, etc. of Land Quality and Quality (amended by Ordinance No. 143 of Jun. 5, 1998) / [4] Article 4 of the Urban Planning Act, Article 4 (1) and (2) of the former Rules on Standards, etc. for Permission for Change, etc. of Land Quality and Transportation (amended by Ordinance No. 143 of Jun. 5,

[1] Supreme Court Decision 95Nu9051 decided Dec. 12, 1995 (Gong1996Sang, 2157), Supreme Court Decision 96Nu5292 decided Jul. 12, 1996 (Gong1996Ha, 2523), Supreme Court Decision 97Nu11584 decided Mar. 27, 1998; Supreme Court Decision 98Du7503 decided Sep. 25, 1998 (Gong1998Ha, 2606) / [2] Supreme Court Decision 94Nu93296 decided Dec. 12, 1995; Supreme Court Decision 97Nu94979 decided Sep. 27, 1998; Supreme Court Decision 97Nu97506 decided Sep. 29, 194; Supreme Court Decision 97Nu94759 decided Dec. 16, 1995]

Plaintiff

Ulsan Metropolitan City Head of Nam-gu (Seoul Metropolitan City before its correction: Do Governor) (Attorney Ha Man-young, Counsel for defendant-appellant)

Busan High Court Decision 96Gu8871 delivered on July 23, 1997

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found that the plaintiff's new disposition of this case was not possible on the land of this case or on the land of this case 1,148 square meters (hereinafter referred to as "land of this case"), since the plaintiff's new disposition of this case was made on November 15, 195 for the purpose of constructing a gas station on the land of this case (hereinafter referred to as "the land of this case"), since the plaintiff's new disposition of this case was not made on the land of this case 1,148 square meters, the court below held that the plaintiff's new disposition of this case was not made on the land of this case 4,000, but on the ground that there was no change in the form and quality of the land of this case's land of this case's 9,000 square meters on the land of this case's land of this case's 1,000,0000 won and no new disposition of this case's land of this case was made on the land of this case's land of this case.

2. However, in a case where an application for permission to establish a gas station is not contrary to the restrictions prescribed by the relevant Acts and subordinate statutes, barring any special circumstance, the person having the right to permit the gas station shall permit the application, and where it is necessary for the public interest other than the restrictions prescribed by the relevant Acts and subordinate statutes as a result of the examination, the permission may be refused (see, e.g., Supreme Court Decisions 96Nu5292, Jul. 12, 1996; 97Nu1584, Mar. 27, 1998; 98Du7503, Sept. 25, 1998; 196Du97503, Sept. 16, 199; 205Du97509, Dec. 29, 200). Meanwhile, the relevant Acts and subordinate statutes providing for the restriction on the installation of a gas station shall not be construed separately to the extent of permission, such as the former Petroleum Business Act’s installation of the Petroleum Business Act.

However, at the court below, the defendant should have prior to changing the form and quality of land to construct gas stations by lowering 8 meters above the surface adjacent to it. Since the surrounding areas of the land of this case are excellent water prices and have beautiful natural landscape, it is absolutely necessary to preserve them for the conservation of the environment and green belt in the city where environmental pollution is serious Ulsan City and its surrounding areas, and the disposition of this case was made by the defendant to the effect that it is necessary for the public interest such as environmental conservation and preservation of the downtown and its surrounding areas, the creation of an environment environment and stability of students' emotional stability in the vicinity of the land of this case, and the removal of traffic accident risk, it is clear in the record that the defendant's initial disposition of this case was made on the ground that the defendant's request for the disposition of this case was made on the ground of the above reasons and the alteration of the form and quality of land under Article 4 of the Urban Planning Act, and it is necessary to consider the defendant's request for the disposition of this case as necessary for the alteration of form and quality of the land of this case.

In addition, according to the facts and records acknowledged by the court below, the land in this case is more than 8 meters away from the surface of the road adjacent to the natural green area (the plaintiff's own assertion that there is a difference of not less than 10 meters). The act of changing the form and quality of land, such as molding the ground surface to install gas stations on the land in this case, shall be prior to the act of changing the form and quality of land, which is consistent with the surface. The defendant, at the time of the plaintiff's application of this case, is likely to designate the land in this case as a restricted area for changing the form and quality of the land in this case to secure green space around the city of Ulsan-dong, Dong-dong and Dong-dong, and to protect natural landscape surrounding the urban park and the village park, and if the land in this case is not subject to the permission of changing the form and quality of the land in this case, the land in this case is not subject to the permission of changing the form and quality of the land in this case's 196-13.

Nevertheless, the court below did not confirm what the defendant used as the ground for the disposition of this case, but did not examine and determine whether it is possible for the plaintiff to obtain permission for changing the form and quality of land necessary for the establishment of a gas station on the land of this case, and whether there is a concern that the establishment of a gas station on the land of this case might harm the important public interest of the urban environmental preservation. Thus, the court below determined that the disposition of this case was unlawful only for the reasons stated in its reasoning. Such judgment of the court below is erroneous in the misapprehension of legal principles as to permission for the installation of a gas station, the exercise of the right of explanation, and the incomplete hearing

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)