In a case where: (a) the head of the competent Si made a decision to revise an urban management plan to create a park cemetery by accepting land donation and partially bearing project costs as a joint project implementer; and (b) concluded an agreement with the Urban Development Corporation to entrust a new construction project for the relocation of a cremation to a part of a park cemetery; and (c) subsequently made a disposition to authorize an implementation plan for an urban planning facility project, the case holding that the decision to revise the relevant urban management plan made by the competent Mayor without delegation of the authority to decide an urban management plan concerning the

Article 43(1) and (2) of the former National Land Planning and Utilization Act (Amended by Act No. 9442, Feb. 6, 2009); Article 141(1) of the former Rules on the Determination, Structure, and Standards for Installation of Urban and Gun Planning Facilities (Amended by Act No. 1490, Jun. 28, 2012); Article 141(1) of the former Rules on the Determination, Structure, and Standards for Installation of Urban and Gun Planning Facilities (Amended by Act No. 1490, Jun. 28, 2012)

Mine Forest Park Co., Ltd. (Law Firm Seo-gu, Attorneys Park Man-ho et al., Counsel for the plaintiff-appellant)

Chuncheon Market (Attorney Lee Jong-chul, Counsel for the defendant-appellant)

Seoul High Court Decision (Chuncheon) 2010Nu35 decided April 27, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal (to the extent of supplement in case of supplemental appellate brief) are examined (to the extent of supplement in case of the plaintiff's supplemental appellate brief).

1. Plaintiff’s ground of appeal

A. The issue of whether an administrative disposition is deemed an administrative disposition cannot be determined abstract, general, and in specific cases, an administrative disposition is a law enforcement with regard to specific facts conducted by an administrative agency as the public authority, which directly affects the rights and obligations of the people. In mind, the contents and purport of the relevant Acts and subordinate statutes and whether the act satisfies the requirements of establishment and validity as an administrative disposition to a certain extent in the subject, content, form, procedure, etc. of the relevant Acts and subordinate statutes, the substantial relation between the act and the disadvantage suffered by the interested parties such as the other party, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. shall be determined individually (see Supreme Court Decision 2007Du1316, Oct. 11, 2007, etc.).

The lower court determined that the instant consignment agreement, which determined the matters necessary for the Defendant to entrust the construction of the new construction of the Chuncheon City Development Corporation among the urban development projects in the Gecheon City in the Gecheon Urban Development Project, is merely an agreement between the parties to the agreement between the Defendant and the Chuncheon Urban Development Corporation, and it cannot be deemed an administrative disposition, in full view of the following: (a) the terms of the consignment agreement; (b) the rights and duties of the Defendant and the Chuncheon Urban Development Corporation to obtain under the consignment agreement; (c) the purpose of the consignment agreement; and (d) subsequent measures taken by the Chuncheon Urban Development Corporation; and (d) the Defendant, an administrative agency, as an administrative agency, cannot be deemed an administrative disposition, inasmuch as it is difficult to

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to administrative disposition, as otherwise alleged in the ground of appeal. The Supreme Court decision cited in the ground of appeal is different from this case

B. Meanwhile, insofar as the instant consignment agreement cannot be deemed an administrative disposition, the allegation in the grounds of appeal that there is a legal interest in seeking confirmation of the validity of a disposition, etc. stipulated in Article 35 of the Administrative Litigation Act, on the premise that the instant consignment agreement constitutes an administrative disposition, shall not be accepted without further review.

2. As to the Defendant’s ground of appeal

A. Whether a crematorium installation is included in the determination of modification of the instant urban management plan

The lower court, based on the duly admitted evidence, acknowledged the facts as indicated in its reasoning, and determined that the Defendant included the content of converting a green area of 10,653 square meters outside the existing common cemetery zone into a cemetery-related facility in addition to the content of incorporating a green area of 11,055 square meters outside the existing common cemetery zone into a cemetery-related facility in order to secure a green area reduced by installing crematoriums within the existing common cemetery zone (a green area of crematoriums is approximately 7,700 square meters).

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no violation of the interpretation of the amendment decision of the urban management plan of this case or violation of the principle of free evaluation of evidence against logical and empirical rules.

B. Whether the Plaintiff has a legal interest in filing an appeal

Even if a third party is not the direct counter-party to an administrative disposition, if the legal interests protected by the relevant administrative disposition are infringed, the party is entitled to be judged by the legitimacy thereof by filing an administrative litigation seeking a nullification of the relevant administrative disposition. The legal interests referred to in this context refer to the individual, direct, and specific interests protected by the relevant laws and regulations and regulations (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006). The interests include the profits which do not directly infringe on the property interest and the living environment (see, e.g., Supreme Court Decision 2011Du4404, Oct. 11, 2012).

The court below determined that the basic purpose of the former National Land Planning and Utilization Act is to promote public welfare by promoting efficient development and utilization of the land, but on the other hand, by properly reflecting the opinions of neighboring residents, owners of land, buildings, etc. and interested parties (hereinafter “interested parties, etc.”) in the course of the determination of urban management planning or the implementation of urban planning facility project, and by comprehensively taking into account Articles 3, 13, 26, 27, 28, 90, 134, and 136 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009; hereinafter “former National Land Planning Act”), the court below held that the former National Land Planning and Utilization Act has an individual, direct, and specific purpose of protecting individual interests by preventing unjust infringement of legal rights or interests of interested parties, etc. due to such disposition.

Furthermore, the lower court determined to the effect that each of the dispositions of this case on the following grounds: (a) the Defendant’s decision to modify the instant urban management planning and the instant disposition to authorize the implementation plan for the Chuncheon Urban Planning Facility Project (hereinafter “instant dispositions”) include part of the land outside the existing cemetery zone in order to secure the green belt area that is reduced by installing the instant crematorium within the existing cemetery zone; (b) the Plaintiff, who is a joint project implementer, who contributed 443,90 square meters of the instant donated land to the Defendant for the creation of the instant park cemetery, and bears approximately KRW 20 billion out of the project cost, is likely to infringe on the legal interest that may develop the undeveloped portion of the land in consultation with the Defendant in accordance with the implementation agreement concluded with the Defendant due to each of the dispositions of this case; and (c) the undeveloped portion of the land not included in the existing cemetery zone, as well as the land not included in the undeveloped portion of the existing cemetery zone, is unlawful.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles or interpretation of an agreement, as otherwise alleged in the ground of appeal.

C. Whether the decision to modify the instant urban management plan is unlawful

According to the former National Land Planning Act, a crematorium and a common cemetery are all public health and sanitation facilities, but each separate infrastructure [Article 2 subparag. 6 (f) of the former National Land Planning and Utilization Act and Article 2 (1) subparag. 6 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21807, Nov. 2, 2009; hereinafter the same shall apply]. In order to build infrastructure, the court below determined the type, name, location, scale, etc. of such infrastructure by an urban management plan in advance except as otherwise provided for in the former Enforcement Decree of the National Land Planning and Utilization Act (main sentence of Article 43(1) of the former National Land Planning and Utilization Act). In exceptional cases where the former Enforcement Decree of the National Land Planning and Utilization Act does not require the determination of an urban management plan, the court below determined that “recretion” should not be included therein [Article 43(1) proviso to the former National Land Planning and Utilization Act; Article 35(1)1 (a) of the former Enforcement Decree of the National Land Planning Act; Article 1609(c) of the former Enforcement Rule]

Furthermore, the lower court rejected the Defendant’s assertion that the determination of an urban management plan for the installation of the instant crematorium is unnecessary, on the grounds that Article 141(1) of the Regulations on the Determination, Structure and Standards for Installation of Urban Planning Facilities (hereinafter “Rules of Urban Planning Facilities”) provides that “the funeral hall, charnel facilities and crematoriums provided for the general use, may be installed in the common cemetery.” On the other hand, Article 43(1) of the former National Land Planning Act requires the determination of an urban management plan at the time of the installation of infrastructure, whereas Article 43(2) of the former National Land Planning Act provides that “the matters necessary for the determination, structure, and installation of an urban planning facility” are different from the Enforcement Rule enacted by Ordinance of the Ministry of Land, Transport and Maritime Affairs, which is the basis for which the determination of an urban planning facility is not required under Article 43(2) of the National Land Planning and Utilization Act, and that the determination of an urban planning facility is not required under Article 14(1) of the said Rules to be included in the determination of an urban management plan for cremation and its purpose.”

Therefore, the lower court determined to the effect that, in order to establish the instant crematorium, there should be a lawful decision on urban management planning, and that the decision on the amendment of the instant urban management planning, which was made by the Defendant, falls under the authority of the Gangwon-do Governor, and that the Governor of Gangwon-do delegated the authority to decide on the urban management planning concerning the installation of crematoriums to the Defendant, and thus, the Defendant’s decision on the amendment of the instant urban management planning plan, including the establishment of the instant crematorium, was made by a person

In light of the laws and records related to the former National Land Planning and Utilization Act, the above judgment of the court below is just, and there is no error of law by misunderstanding the interpretation of Article 43(1) and (2) of the former National Land Planning and Utilization Act, Article 141(1) of the Rules on Urban Planning Facilities or by misapprehending the legal principles on delegation of administrative affairs, etc.

3. Conclusion

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

Justices Min Il-young (Presiding Justice)