Plaintiff 1 and 35 others (Law Firm KEL, Attorney Kim-hee, Counsel for the plaintiff-appellant)

Pakistan Market (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

School Foundation (Law Firm Sejong, Attorney Lee Young-gu, Counsel for defendant-appellant)

July 14, 2009

Suwon District Court Decision 2008Guhap2069 Decided December 9, 2008

1. All appeals filed by the plaintiffs are dismissed.

2. The appeal costs are fully borne by the Plaintiffs, including the part resulting from the supplementary participation.

The judgment of the first instance shall be revoked. The defendant's disposition of approval to implement a project against the defendant's supplementary intervenor (hereinafter referred to as "participating") on March 25, 2008 shall be revoked.

1. The reasoning for the court's explanation concerning this case is as follows. The part of the 14th to 11th 15th 13th 13th 15 of the judgment of the court of first instance is modified as follows. The part of the 18th 15th 15 "shall be deemed reasonable to be ,.......... Thus, even in the case of the disposition of this case, if at least the defendant did not hold prior consultation with the Gyeonggi-do Governor for the legal fiction of the decision of the urban management plan at the time of the disposition of this case, it is difficult to see that there is any defect that can cancel the disposition of this case, even if it did not hold prior consultation for some other authorization and permission," and the part of the 21th 17 through 23th 12th 2th 23th 14th 25th 25th 14th 25th 25th 2010 of the Civil Procedure Act is amended as follows.

2. The approval system for implementation of a project under the Special Act on Support;

1) Pursuant to the relevant provisions of the Special Act on Support, among persons eligible to implement a project pursuant to the comprehensive plan under Article 8 and an annual project plan under Article 9 (hereinafter referred to as "project operator"), the project operator shall obtain approval from the head of the competent Si/Gun/Gu (hereinafter referred to as "project approval authority"), excluding the State, local governments, government-invested institutions, and local government-invested corporations. To obtain approval for the project, ① name and purpose of the project, ② details and size of the project, ③ address and name of the project operator, ④ estimated project cost and financing method, ⑤ the implementation period of the project, ⑤ the project place (including the location), ⑤ the acquisition plan of the required land, ② effect of the project, ② the project plan and investment plan containing the same matters as the relevant drawing shall be submitted to the project approval authority (Article 11(3) of the Act, Article 11(1) of the Enforcement Decree of the Act), and the project approval authority shall examine the name and purpose of the project operator, ② name and address of the project operator, ③ the project implementation period, ⑤ the project implementation period or land, and shall be publicly notified.

In other words, the approval for the implementation of the project under the Special Support Act is a measure to designate or approve the area where the project is to be implemented in full consideration of the following factors: (i) the project operator, (ii) the contents of the project, and (iii) the area where the project is to be implemented.

In light of the above project implementation approval, it is reasonable to interpret that the disposition of this case is a final disposition that the defendant issued pursuant to Article 11 of the Special Act on Support and constitutes a project implementation approval as stipulated in Article 11 of the Special Act on Support, since the defendant's disposition of this case is a final disposition that the defendant issued pursuant to Article 11 of the Special Act on Support, and it is reasonable to interpret that part of the necessary authorization or permission is not recognized as a project implementation approval agenda under the Special Act on Support due to a relationship in which the consultation procedure with the relevant administrative agencies is not completed in advance.

2) Whether all authorization and permission matters subject to an agenda should be consulted prior to approval for the implementation of the project

A) Article 29(1) of the Special Support Act provides that the following authorization, permission, reporting, and approval shall be deemed to have been granted when the implementation of a project is approved pursuant to Article 11, and that various authorization, permission, reporting, and approval shall be listed from No. 1 to No. 28. Paragraph (2) provides that “where approval is granted for a project falling under paragraph (1), prior consultation shall be made with the head of the relevant central administrative agency and the head of the relevant local government, prior consultation shall be made with the head of the relevant central administrative agency and the head of the local government.” Thus, it may be problematic whether the approval for the implementation of a project should be subject to prior consultation on a lump sum basis at the time when granting approval for the implementation of the project, and the validity of the approval for the implementation of the project shall be decided without such prior consultation.

In general, if a consultation with the relevant administrative agency for obtaining constructive authorization and permission does not take place, such consultation procedures are stipulated in the law, but they fall under the internal procedure of an administrative agency not publicly announced to the public, and there may be cases where the other party to the authorization and permission is entirely not aware of whether the consultation was made, and if the principal authorization and permission is invalidated on the ground of failure to implement the consultation procedure, the other party to the authorization and permission may incur a bad loss. As such, defects in failure to implement the consultation procedure properly may be deemed to constitute grounds for revocation depending on their degree, but they shall not be deemed grounds for revocation as a matter of course. Thus, this study examines the validity of the disposition of this case under the condition that no partial authorization and permission were obtained.

3. Whether the project approval under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects becomes effective

Article 31(5) of the Special Act on Assistance to the Project Approval Agenda provides that "if approval for the implementation of a project is granted pursuant to Article 11, the project approval and the public notice of the project approval under Articles 20 and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall be deemed to exist." If the project approval is deemed granted, the project operator shall have the right to expropriate land, and many landowners and interested persons shall have a strong effect that restricts the exercise of property rights, such as the duty to preserve land and the duty to expropriate land, etc.

In relation to the interpretation of the above provision, in case where the whole authorized and permitted matters related to the business prescribed in Article 29 (1) of the Special Act on Support prior to the disposition of approval for the implementation of the project are subject to the legal fiction of approval and permission en bloc after consultation with all prior to the disposition of approval for the implementation of the project, there is no doubt that the effect of the legal fiction of the project approval prescribed in Article 31 (5) of the Special Act on

However, even if the project implementation approval is not granted for some of the necessary authorizations and permissions in the future as in the instant disposition, if there is a disposition to approve the project implementation under the Special Act on Support, the effect of the project approval agenda shall take place at the time of the disposition, or if there is no clear provision in the Special Act on Support as to whether the project implementation agenda becomes effective after prior consultation, etc. even if the project implementation approval is issued, and there is no clear provision in the Special Act on Support. This is a matter of interpretation as to whether the project implementation approval is granted in the absence of the effect of some authorizations and permissions, and it is ultimately a matter of interpretation as to whether such approval falls under the "project implementation approval under Article 11" as stipulated in Article 31 of the Special Act on Support.

A disposition to approve the implementation of a project under the Special Act on Support has meaning of designation of a project operator, ② details of the project, ③ designation of a project area. In particular, in the case of a large-scale project, the contents of the project can vary according to the progress of the project from the stage in which the general plan is formulated to the stage in which detailed implementation plans are established, which can be executed. Since there are many cases where a large-scale project is implemented, there may be cases where it is impossible to conclude consultation on the legal fiction of authorization and permission for the whole project at once, and therefore, it is inevitable to interpret that the relevant matters shall be subject to legal fiction of authorization and permission only when consultation is held with respect to the subject of legal fiction of authorization and permission for each stage.

However, Article 29 of the Special Support Act provides that approval, permission, etc. shall be deemed granted when a project is approved pursuant to Article 11 of the Special Support Act; however, when a project is approved, consultation on matters related to authorization, permission, etc. shall be held in advance with the heads of the relevant administrative agencies; it is the principle of the Special Support Act; when a project approval is deemed granted, land expropriation rights, etc. shall be granted to the project operator; generally, prior consultation with the heads of the relevant administrative agencies for authorization of the implementation plan under the National Land Planning Act shall be held when specific matters of execution have been finalized; however, if a project approval agenda becomes effective before an implementation plan is approved because specific matters of execution have not yet become final and conclusive, there is a concern that the expropriation and compensation procedure may result in unnecessary restrictions on the exercise of ownership by many interested parties; Article 11 of the Special Support Act provides that approval of the implementation of a project is granted; Article 31 of the Special Support Act provides that prior consultation on the implementation of a project, such as land to be granted at the time of approval of the whole Special Support Act.

Therefore, it is difficult to see that the legal fiction of project approval under the Special Act on Support is naturally granted to the case where there is no prior consultation on certain matters of authorization or permission, such as the instant disposition.

4. Conclusion

Therefore, the judgment of the court of first instance is justified, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Ahn Young-chul (Presiding Judge)