[1] The meaning of the administrative plan and the limitation of discretion on the decision of the administrative plan by the administrative body

[2] The case holding that the head of the Gu's urban planning decision to create a resting plaza in the vicinity of the Cheong Accounting Urban Natural Park was unlawful since the balancing of interests in the public and private interests was justified

[1] Article 12 of the former Urban Planning Act (repealed by Act No. 6655 of Feb. 4, 2002), Article 27 of the Administrative Litigation Act / [2] Article 12 of the former Urban Planning Act (repealed by Act No. 6655 of Feb. 4, 2002), Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 96Nu8567 delivered on November 29, 1996 (Gong1997Sang, 210) Supreme Court Decision 2003Du5426 delivered on September 8, 2006 (Gong2006Ha, 1673)

[Judgment of the court below]

The head of Seocho-gu (Attorney Jeong-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Nu8816 delivered on October 6, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The term "administrative plan" is established as an activity standard to realize a certain order at a certain point in the future by integrating and coordinating administrative means related to each other in order to achieve a specific administrative objective such as the construction, maintenance, improvement, etc. of a city based on a professional and technical judgment on administration. Since the former Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002) only provides an abstract administrative objective and procedure, but does not provide any specific provision regarding the contents of the administrative plan, administrative agency has a relatively wide range of freedom in drafting and determining a specific administrative plan. However, the freedom of such formation, which the administrative agency has, is not unlimited, but is not limited to a legitimate comparison between public and private interests, as well as between public and private interests. Accordingly, if the administrative agency establishes and determines the administrative plan, including all or all matters to be considered as the object of balancing, or where it lacks the legitimacy and objectivity of the administrative plan, it is unlawful to determine the objectivity and objectivity of the administrative plan (see, e.g., Supreme Court Decision 2006Du368.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and found that it is necessary to create a resting square to provide visitors with a place of rest and to improve the urban landscape, and the defendant has a relatively broad freedom of formation of the urban planning project in order to achieve such administrative purpose. However, in formulating the urban planning project, it is necessary to consider the necessity and demand of additional urban planning facilities through a basic survey on the population, traffic, environment, and land use, and to establish the urban planning plan, and to review the size and the scope of the land to be included in the urban planning project, and to establish the urban planning project under the direction of the urban planning project without any specific data or ground, it is necessary to establish and review the urban planning plan under the direction of the urban planning committee to develop the urban planning project in order to ensure that the defendant did not use the land and the surrounding area of the urban natural park. Even if it is based on the results of the basic investigation, it is not necessary to establish the urban planning project under the direction of the urban planning committee to develop the urban planning project under the direction of the urban planning project.

In accordance with the above legal principles and relevant laws, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the mistake of facts, the reasoning and inconsistent reasoning due to the violation of the rules of evidence, or the comparison of public and private interests, as otherwise alleged in the ground of appeal.

Therefore, the appeal is 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 Shin Hyun-chul (Presiding Justice)