Hansung Construction Co., Ltd. (Attorney Kim Young-young, Counsel for the defendant-appellant)

Goyang market (Law Firm LLC, Attorneys Choi Ho-ho et al., Counsel for the defendant-appellant)

June 29, 2010

1. We affirm that the Defendant’s refusal disposition on February 2, 2010 and the refusal disposition on approval of the housing construction project plan, which was made against the Plaintiff, are invalid.

2. The plaintiff's claim for confirmation and revocation of invalidation against the provisional disposition on December 28, 2009, which rejected development activities, is dismissed, respectively.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. The primary purport of the claim

It is confirmed that the Defendant’s provisional injunction against the Plaintiff on December 28, 2009 and the provisional injunction against the building permission and the approval of the housing construction project plan rendered on February 2, 2010 are invalid.

2. Preliminary purport of claim

The defendant's provisional disposition of no permission for development activities on December 28, 2009 and the provisional disposition of no permission for construction and no approval for the housing construction project plan on February 2, 2010, each of which are revoked to the plaintiff.

1. Basic facts

A. On March 23, 2007, the Plaintiff filed an application with the Defendant for permission to engage in development activities for apartment houses of 14 Dong 475 households on each of the above lands, and filed an application for approval for the housing construction plan on April 6, 2007 for the construction of apartment houses on each of the above lands.

B. On April 4, 2007 and the 12th of the same month, the defendant decided as a prospective site for urbanization for the creation of the media ballast, which is a regional pending project under the high-sea Basic Urban Planning Act in 2020, and the approval of the housing construction plan for the individual location of multi-family housing has not been formulated in a separate development plan (draft) as an area where a separate development plan is to be formulated, and made a disposition rejecting each of the above applications by the plaintiff (hereinafter the defendant's above disposition is referred to as "the first rejection disposition of this case").

C. Accordingly, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the first rejection disposition of this case as the court 2007Guhap1847, and the Defendant added the following grounds for the said rejection disposition (hereinafter “additional grounds for the first rejection disposition of this case”) to the effect that “the Plaintiff’s application is designated as a quasi-industrial area in accordance with the guidelines for establishing Class I district unit planning of Gyeonggi-do in which the Plaintiff’s application is filed, and the quasi-industrial area cannot be approved for the construction of multi-family housing

D. In the above lawsuit No. 2007Guhap1847, the court affirmed the plaintiff's claim that the grounds for the first rejection disposition of this case cannot be identical to those for the first rejection disposition of this case, on the grounds that the defendant's grounds for the first rejection disposition of this case are not recognized as identical to those for the first rejection disposition of this case, and the above judgment became final and conclusive through the case of 2009Du16275.

E. On December 18, 2009, after the judgment of the above Supreme Court became final and conclusive, the Plaintiff filed a civil petition with the Defendant demanding the implementation of follow-up measures in accordance with the above final and conclusive judgment. On December 28, 2009, the Defendant notified the Plaintiff that the Plaintiff’s development act is impossible due to the following reasons under the title of civil petition reply (hereinafter “the Defendant’s reply”) (hereinafter referred to as “the Defendant’s reply on December 28, 2009”).

In order to establish a systematic and reasonable development plan for the region in question as the area reflected as a city-oriented site for the promotion of the regional pending projects in accordance with the Seoul Metropolitan Area Metropolitan Planning Act 2020 and the 2020 high-sea Basic Urban Planning Act, Seoyang-gu Seoyang-gu is impossible to engage in new development activities for which permission for development is restricted pursuant to Article 63 of the National Land Planning and Utilization Act.

F. Meanwhile, on February 2, 2010, the Defendant notified that it is impossible for the Plaintiff to engage in development activities due to the following reasons under the title “re-disposition notification following an application for approval of a housing construction project plan” (hereinafter “the Defendant’s above notification”)

1) The filing site is subject to the reflection of the project of the "Cule Media Ballast" which is a regional pending project in the 2020 High Basic Urban Planning ( September 18, 2006) and the Metropolitan Urban Planning (Seoul Metropolitan City, July 4, 2007) as determined and announced by the Ministry of Land, Transport and Maritime Affairs, and in order to prevent systematic urban development and difficult development in our city, it is difficult to permit new development activities as of December 26, 2007 through the Residents' Public Inspection and Urban Planning Deliberation Committee under Article 63 of the National Land Planning and Utilization Act.

2) In addition, the relevant area shall submit a proposal for designating an urban development zone under Article 3 of the Urban Development Act and Article 5 of the Enforcement Decree of the same Act to the Ministry of Land, Transport and Maritime Affairs, which is the authority designating an urban development zone, from the Korea Land Corporation on February 4, 2008, and submit a proposal for designating an urban development zone under Article 3 of the Urban Development Act and Article 5 of the Enforcement Decree of the same Act to the Ministry of Land, Transport and Maritime Affairs from April 21, 2008 to October 28 of the same year, the Ministry of Land, Transport and Maritime Affairs implements a continuous administrative procedure, such as conditional resolution by the Central Urban Planning Committee on December 10, 209 through a public notice for public inspection and public hearing of residents, and permission for development in the area where

3) In addition, pursuant to the provisions of Section 1 of Chapter II of Chapter II of the Gyeonggi-do Guidelines for the Establishment of Class 1 District Unit Plans, “the establishment of a district unit plan for the construction of multi-family housing in a quasi-industrial area shall, in principle, not be permitted: Provided, That the foregoing shall not apply where a company’s head office, branch, or research institute is invited, within the relevant number of employees and within the scope of less than 20% of the area

G. On May 27, 2010, the Defendant notified the Plaintiff on May 27, 2010, that the disposition as of February 2, 2010 added the following to the disposition as the ground for the disposition (hereinafter “instant additional disposition”).

On May 19, 2010, the Ministry of Land, Transport and Maritime Affairs announced the designation of urban development zones and project implementers in order to secure the self-sufficiency function of ancient cities and to promote systematic development for the prevention of difficult development in surrounding areas and the improvement of infrastructure in accordance with Article 3 and Article 11 of the Urban Development Act. The Korea Land and Housing Corporation, which is a project implementer, has an opinion that it is difficult to establish and implement a plan in line with the purpose of designating urban development project zones at the present time because it is expected that all areas will be implemented by the expropriation and use method in order to protect people's property rights and facilitate the implementation of public projects.

[Ground of recognition] Facts without dispute, Gap 1 through 3, Eul 1, Eul 2, 18, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The defendant's response on December 28, 2009 is a rejection disposition with the same contents as the first rejection disposition of this case and the grounds for the first rejection disposition of this case, and is null and void or illegal a disposition contrary to the binding force of the above final and conclusive Supreme Court's ruling, and the disposition on February 2, 2010 is a legitimate invalidation after the response of the plaintiff on December 28, 2009.

B. Defendant’s assertion

① The Defendant’s reply on December 28, 2009 is merely a civil petition pursuant to the Plaintiff’s filing of a civil petition after the judgment of the said Supreme Court became final and conclusive, and is not a disposition following the Plaintiff’s application for development activities and approval of the housing construction project plan, but a disposition on the Plaintiff’s application on February 2, 2010 is a legitimate disposition that does not go against the binding force of the said final and conclusive judgment.

② The Defendant’s reply on December 28, 2009 constitutes a disposition. This is a legitimate disposition that does not go against the binding force of the above final and conclusive judgment, since it is a rejection disposition due to legal reasons after the final and conclusive judgment was rendered.

3. Related statutes;

It is as shown in the attached Form.

4. Determination on the defense prior to the merits

On the ground that the defendant's response on December 28, 2009 constitutes a rejection disposition, the defendant asserts that the above response is not a disposition.

If a notification by an administrative agency is made by the law and has a certain effect added to the notification by the administrative agency, it is an act under public law, which directly changes the specific rights and obligations of the people, and is not an administrative disposition, but a simple fact or concept that does not have a legal effect, a notification of simple fact or concept, an answer to questions regarding the interpretation of statutes, and a notification of the result of disposal of a petition case or petition case, etc., are not an administrative disposition, because it itself

According to the facts acknowledged above, although the defendant's response on December 28, 2009 had the form of response based on the civil petition filing on or around December 18, 2009, the plaintiff's refusal to apply for permission of development and to apply for approval of the housing construction project plan for the land of this case filed with the defendant on or around March 2007 and around April 2007. Thus, the above response constitutes an administrative disposition having the effect of directly changing the plaintiff's specific rights and duties, which is the non-approval of the development permission and the housing construction project plan plan plan. Thus, the defendant's assertion that the response on December 28, 2009 was not a disposition by the plaintiff on December 28, 2009 is without merit.

5. Judgment on the merits

A. Determination as to the reply of December 28, 2009

1) Whether it goes against the binding force of the final and conclusive judgment

According to the provisions of Article 30 (2) of the Administrative Litigation Act, when a judgment revoking a rejection disposition by an administrative agency becomes final and conclusive, an administrative agency that has taken the disposition is obligated to take a new measure against an application for the relocation of the administrative agency in accordance with the purport of the judgment. However, an administrative agency that is a party to the final and conclusive judgment may take a new measure by supplementing the grounds for illegality stated in the final and conclusive judgment. Whether the administrative disposition is legitimate or not is determined based on the statutes and facts at the time when the administrative disposition was taken. Therefore, in cases where the law was revised and implemented after the disposition of rejection, a disposition of rejection against an application for the relocation of the administrative agency may be issued for a new reason, and such disposition also constitutes a new disposition under Article 30 (2) of the Administrative Litigation Act

On April 207, the defendant's first rejection disposition was made illegal on the grounds that the defendant's first rejection disposition was rejected without any specific and reasonable grounds without any grounds. On the other hand, the defendant's reply on December 28, 2009 (the rejection disposition) after the defendant's first rejection disposition was made on December 26, 2007 pursuant to the defendant's first rejection disposition on December 2020 after the defendant's first rejection disposition was made, and the surrounding area of the plaintiff's application was designated as a restricted area pursuant to Article 63 of the National Land Planning and Utilization Act (hereinafter "National Land Planning Act") and the plaintiff's application cannot be permitted. Accordingly, the defendant's reply on December 28, 2009 was made on the ground that the above land was changed to the area where the permission of this case was made after the first rejection disposition, and the above part of the defendant's rejection disposition did not violate the plaintiff's second rejection disposition's final judgment or its second rejection disposition's second rejection disposition's second rejection disposition.

2) Whether the reply made on December 28, 2009 was lawful

Article 63(1)3 of the National Land Planning and Utilization Act provides that the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor, or the head of a Si/Gun may restrict permission for development activities for a period of not more than three years, and may extend the restriction on permission for development activities for a period of not more than two years only once for a period of not more than two years, as regards an area for which a basic urban planning or an urban management plan is formulated and determined.

In full view of the purport of the arguments in Gap evidence Nos. 4 and Eul evidence Nos. 3-1 and 2-2, the defendant may recognize the fact that the defendant made a public announcement of restricting the development activities of Goyang-gu in accordance with Article 63 of the National Land Planning Act and Article 8 of the Land Use Regulation Act for members of Goyang-gu, Yangyang-dong, including the application price of this case, in order to prevent difficult development with respect to the regional pending land sites reflected in "20 Seoul Metropolitan area and Metropolitan Urban Planning" and "2020 Goyang-gu Basic Urban Planning" on December 27, 2007. According to the above facts, it is necessary to establish a systematic and reasonable development plan in accordance with the above basic plan as to the surrounding areas of the application site of this case, and it is reasonable to view that the defendant's legitimate development plan is expected to change the specific use area, specific use zone or specific use zone surrounding the site of this case, and that the criteria for permission for development activities of the newly constructed multi-family housing can still be argued based on the general basic urban planning of this case.

B. Determination as to the disposition dated February 2, 2010

In the case of the so-called "disposition" that gives or denies the benefit of authorization, permission or license upon the application of the parties among the administrative acts, if a rejection disposition is taken against the application of the parties, the repetition of the rejection disposition in addition to the reasons is a non-existent rejection disposition against the application, unless the rejection disposition is revoked by the legitimate procedure (see Supreme Court Decision 98Du1895 delivered on December 28, 199, etc.).

Around April 2007, the fact that the defendant rejected the plaintiff's above application for permission for development and approval for the housing construction project plan under the title called civil petition conference on December 28, 2009 is as seen above. Since the above disposition was not revoked by legitimate procedure, it is invalid as a rejection disposition against the defendant's application that did not exist on February 2, 2010 (the additional disposition of this case added by the above disposition on May 19, 2010). Thus, the plaintiff's main claim on this part is justified.

3. Conclusion

Therefore, among the plaintiff's claim, the defendant's disposition as of February 2, 2010 is null and void. Thus, the plaintiff's main claim as to this part is accepted, and the main and conjunctive claim as to the disposition as of December 28, 2009 is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Kim Dong-dong (Presiding Judge) and Lee Ho-hoon;