In designating an implementer of an urban development project under the Urban Development Act, whether a designating authority of an urban development zone may designate an implementer at his/her own decision, regardless of submission of an application for designating an implementer (affirmative)

In light of the form and content of Article 15(1) of the Enforcement Decree of the Urban Development Act, the above provision can only be interpreted as imposing the duty to submit an application for designation of an implementer to a person who intends to be designated as an implementer, and the main sentence of Article 11(1) of the Urban Development Act stipulates that “a implementer shall be designated by the designating authority from among the persons referred to in the subparagraphs of paragraph (1) of the same Article,” as well as the main sentence of Article 11(1) of the same Act stipulates that a person who fails to apply for designation to the designating authority among the persons referred to in the subparagraphs of paragraph (1) of the same Article cannot be designated as an implementer under the same Act or the Enforcement Decree of the same Act, the designating authority of an urban development zone may designate an implementer at its own discretion, regardless

Article 11(1) of the Urban Development Act, and Article 15(1) of the Enforcement Decree of the Urban Development Act

Plaintiff 1 and 345 others (Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Aju, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Nu25686 delivered on April 12, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Article 15(1) of the Enforcement Decree of the Urban Development Act (hereinafter referred to as the "Act") provides that "a person who intends to be designated as an implementer of an urban development project pursuant to Article 11(1) of the Act shall submit an application for designating a project implementer to the designating authority of an urban development zone (referring to the Special Metropolitan City Mayor, Metropolitan City Mayors, or Do Governors pursuant to Articles 3 and 4(1) of the Act; hereinafter referred to as the "rightholder"). In light of the form and content of Article 15(1) of the Enforcement Decree of the Act, the above provision can only be interpreted as imposing the duty to submit an application for designating an implementer to a person who intends to be designated as an implementer." In addition to the main sentence of Article 11(1) of the Act provides that "the designating authority shall designate an implementer from among the persons referred to in the subparagraphs of paragraph (1) of the same Article, or in the Enforcement Decree of the Act, a person who has established an urban development project among those referred to in the subparagraphs of paragraph (1) of the same Article 1) of the Act cannot designate an implementer.

Therefore, the argument in the grounds of appeal on the premise that the designating authority cannot designate a person who fails to submit an application for designation as an implementer is without merit (On the other hand, according to the records, according to the defendant's disposition in this case, it can be known that the non-party Seoul Special Metropolitan City Urban Development Corporation (hereinafter "SP") designated as the implementer of the city development project in this case (hereinafter "SP") has submitted the application for designation as a project implementer to the defendant on March 17, 2003 prior to the disposition in this case).

Although the reasoning of the lower court on this part is inappropriate, the conclusion that rejected this part of the Plaintiffs’ assertion is justifiable, and therefore, it cannot be said that there was an error affecting the conclusion of the judgment.

2. The lower court determined that the proviso of Article 11(1) of the Act stipulates that a landowner or an association shall be designated as an implementer when an urban development zone is fully developed using a replotting method; Article 11(2) of the Act provides that a landowner or an association may designate an implementer in certain cases, such as not applying for designation of an implementer within a period prescribed by Presidential Decree; Article 16(2) of the Enforcement Decree of the Act provides that the period prescribed by Presidential Decree refers to six months from the date of establishment and announcement of a development plan; however, each of the above provisions applies to the development of an urban development zone entirely through a replotting method as prescribed by the proviso of Article 11(1) of the Act; and it cannot be applied to the urban development project of this case where the expropriation and use method is implemented by a public development method, the date of establishment and announcement of a development plan for the urban development project of this case, which is the date of November 10, 2003, which is the date of the implementation and announcement of a development plan for the urban development project of this case.

3. The court below held that the contents of an urban development project implementer and the method of implementing an urban development project, which form the contents of the urban development plan, are important contents in designating an urban development zone, and since Article 7 (2) of the Urban Development Act delegates specific matters to the Presidential Decree for hearing opinions of residents, etc., Article 9-2 (2) 2 of the Enforcement Decree of the Act provides "matters concerning the implementer of an urban development project and the method of implementing an urban development project" as the matters to be public inspection and public notice for hearing opinions of residents, etc. cannot be deemed to exceed the delegation scope stipulated under Article 7 of the Act, and therefore, in this case, the defendant included the contents of the land in the public inspection and public notice for hearing opinions of residents in order to designate it as an urban development zone, including the implementer and the method of implementing an urban development project in the contents thereof is legitimate. In light of the relevant statutes, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the matters to be included in the public inspection and public notice as alleged in the grounds for appeal.

4. The court below held that Article 8 of the Act provides that when a designating authority designates an urban development zone or formulates a development plan after designating an urban development zone, it shall undergo deliberation by the Urban Planning Committee, and since the contents of a development plan under Article 5 of the Act include matters concerning an implementer of an urban development project and the method of implementation of an urban development project, etc., in this case, even if the defendant, as part of the development plan of the urban development project of this case, was deliberated upon by the Seoul Metropolitan City Urban Planning Committee on October 22, 2003, it cannot be deemed unlawful since it is based on Article 8 of the Urban Development Act. In light of the relevant Acts and subordinate statutes, the judgment of the court below is just and acceptable, and it is not erroneous in the misapprehension of legal principles as to matters that should not be included in the deliberation by the Urban Planning Committee as alleged in the grounds for appeal.

5. The court below held that Article 4 of the Act, in principle, when the designating authority intends to designate an urban development zone, a development plan for the relevant urban development zone shall be formulated, and if an urban development zone is designated in an area prescribed by the Presidential Decree, a development plan may be formulated after the designation of the urban development zone, and Article 5-2 of the Enforcement Decree of the Act provides that "area prescribed by the Presidential Decree" referred to in Article 4 of the Act refers to a green area and an area other than an urban area. Since each of the above provisions stipulates that an urban development zone can be established after the designation of the urban development zone, it cannot be seen as a provision that a development plan should be formulated separately after the designation of the urban development zone in the instant case, on the ground that the Defendant, the designating authority, at the same time as the designation of the urban development zone in the instant land, established a development plan at the same time as the designation of the urban development zone in the instant case, and there is no error in the misapprehension of legal principles on the timing of urban development planning, as alleged in the grounds for

6. The court below rejected the plaintiffs' assertion that the non-party Corporation's excessive low compensation for the owners of the land of this case and the disposition of this case infringes on the plaintiffs' private property rights. The designation of the urban development project implementer should be determined by considering the purpose of the development project and the social and economic conditions at the time of the project and the characteristics appearing in the project implementation by each implementer. The plaintiffs' assertion that the above ground should be dealt with as a matter of law in the land expropriation procedure in the future between the non-party corporation and the land owners of this case, and the disposition of this case which designated the non-party corporation as the implementer does not constitute an unlawful infringement on the plaintiffs' private property rights. In light of the related Acts and subordinate statutes and related legal principles, the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles on the guarantee of private property rights, as alleged in the grounds for appeal.

7. In light of the fact that the Act and the Enforcement Decree stipulate that an urban development project operator may determine the method of urban development in accordance with the Act and the Enforcement Decree of the Act, it cannot be interpreted to the effect that the project implementation method should be determined first after the urban development project operator was designated, and that Article 3(1) of the Urban Development Act provides that "a Si/Do Governor may designate an urban development zone" and Article 4(1) of the Urban Development Act provides that "where the designating authority of an urban development zone intends to designate an urban development zone, he/she shall establish an urban development project plan if he/she intends to designate an urban development zone" and Article 5(1) provides matters concerning the method of implementation of an urban development project as included in the development plan, the determination of the method of implementation in the instant case is lawful as it is in accordance with the relevant provisions of the Urban Development Act. In light of the relevant Acts and subordinate statutes, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal,

8. The plaintiffs' assertion in the grounds of appeal that the disposition of this case, which the defendant designated the non-party construction as the project implementer, was erroneous in depriving the plaintiffs of the opportunity to apply for the designation of the project implementer and against the plaintiffs' constitutional equality rights by discriminating against the plaintiffs without any reasonable grounds, is not only a new argument in the final appeal, but also the defendant as the designating authority may designate the project implementer regardless of whether the application for the designation of the project implementer was filed. According to the records, the defendant's disposition of this case was based on the judgment that the designation of the non-party construction as the project implementer is appropriate for promoting the public interest and efficiency in the implementation of the urban development project of this case, which aims at promoting planned and systematic urban development, creating a pleasant urban environment and promoting public welfare, and supplying various functions, such as national rental housing site, and the designation of the non-party construction as the non-party construction project implementer rather than the plaintiffs who are the land owners with own interests, without any reasonable grounds.

9. Therefore, all appeals are 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.

Justices Kim Ji-hyung (Presiding Justice)