The legislative purport of Article 10(1)1 of the Urban Development Act and whether the designation of an urban development zone is revoked under the same provision even if an urban development project implementer has not been designated among them, in the absence of an application for authorization of an implementation plan within three years from the date on which the urban development zone was designated and announced (affirmative)

Articles 9(5), 10(1)1, 11(1), 17(1) and (2), and 80 subparag. 1 of the Urban Development Act

[Defendant-Appellant-Appellant-Appellant-Appellee (Law Firm Na, et al., Counsel for defendant-appellant-appellant-appellee)

Sung-nam Market (Law Firm LLC, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Nu6892 decided August 18, 2015

The judgment below is reversed. The plaintiff's appeal is dismissed. The litigation costs after the appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. A. A. A lawsuit seeking the revocation of an administrative disposition is a lawsuit seeking the restoration to the original state by excluding an unlawful state arising from such disposition and protecting or remedying the rights and interests infringed or interfered with such disposition. Thus, even if the disposition is revoked, there is no benefit to seek the revocation of such disposition if it is impossible to reinstate the original state (see, e.g., Supreme Court Decisions 2002Du10278, Jul. 22, 2004; 2013Du11567, Sept. 25, 2014).

B. According to the Urban Development Act (hereinafter “Act”) and the Enforcement Decree of the Act, “urban development project” means a project implemented to create a complex or city having functions, such as residence, commerce, industry, distribution, information and communications, ecology, culture, health and welfare, etc. in an urban development zone (Article 2(1)2 of the Act). An urban development zone may be designated when a planned urban development is deemed necessary by the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Do Governor, a Special Self-Governing Province Governor, or a Mayor of a large city with a population of at least 500,00 (hereinafter “rightholder”) (Article 3(1)2 of the Act). In order to designate an urban development zone, the designation authority shall establish an urban development project plan for the relevant urban development zone (Article 4(1)3 of the Act), if the designation authority designates an urban development zone or formulates a development plan, it shall be announced in the Official Gazette or official bulletin (Article 9(1)3 of the Act); if an implementer and the location of its main office are not designated by the implementer, the Act shall be punished by Article 2(1).

Meanwhile, a designating authority shall designate an implementer of an urban development project from among the persons stipulated in each subparagraph of Article 11(1) of the Act, such as the State or a local government or a landowner in an urban development zone (Article 11(1) of the Act). An implementer shall prepare an implementation plan for an urban development project and obtain authorization from the designating authority (Article 17(1) and (2) of the Act). If an implementer fails to file an application for authorization of an implementation plan under Article 17 by the date on which three years elapse from the date on which an urban development zone is designated and announced, the designation of an urban development zone shall be deemed revoked on the following day of the third anniversary (Article 10(1)1 of the Act; hereinafter “instant provision”).

C. In full view of the fact that the designation of an urban development zone is restricted by Article 9(5) of the Act, and that an urban development zone is designated and publicly announced without an implementer designated under Article 15(1) of the Enforcement Decree of the Act, the instant provision is intended to stipulate exceptions in such cases while deeming the cancellation of the designation of an urban development zone under Article 15(1) of the Act, the legislative purpose of the instant provision is to prevent an excessive restriction on landowners’ exercise of property rights due to the delay in the beginning of the urban development project. Thus, the instant provision is deemed to have its legislative purpose in order to prevent an excessive restriction on the exercise of property rights by landowners, etc. from being delayed from the beginning of the urban development project. Therefore, if no application is filed for authorization of an implementation plan under Article 17 of the Act by the date on which three years have passed

2. According to evidence and records duly adopted by the court below, ① the defendant, on May 15, 2009, without designating an implementer on May 15, 2009, designated the project site of this case as "Seongnam-si Urban Development Zone (hereinafter "the project site of this case")" (hereinafter "the urban development zone of this case") and announced an urban development project plan (hereinafter "the urban development project of this case") by expropriation or use under Article 22 of the Act. ② The plaintiff acquired the right to the urban development project of this case from Se.I., and completed the registration of transfer under the name of the plaintiff on May 25, 2010, the plaintiff did not return the plan of this case to the defendant on May 25, 2010 for the reason that the plaintiff's rejection disposition of this case is not clear, but it did not return the plan of this case to the court of first instance (hereinafter "the plaintiff's rejection disposition of this case").

3. Examining these facts in light of the legal principles as seen earlier, the instant urban development zone is deemed to have been cancelled on the following day since the authorization of implementation plan was not applied until May 15, 2009, which was three years from May 15, 2009, when the date of designation and announcement, and the designation of an urban development zone was cancelled as long as the designation of an urban development zone was cancelled as the premise that the designation of an urban development zone is designated, even if the designation of an urban development zone was cancelled, the Defendant cannot designate the Plaintiff as an implementer of the instant urban development project. Thus, even if the disposition was cancelled, the instant urban development zone shall be deemed to have no benefit to seek cancellation of each of the instant dispositions, since it falls under

Nevertheless, on different premises, the court below tried to make a judgment on the merits on the premise that there is a benefit of lawsuit seeking revocation of each of the dispositions of this case. In so determining, the court below erred by misapprehending the legal principles on interpretation and application of the provisions of this case and the benefit of lawsuit in the appeal litigation, thereby affecting the conclusion of the judgment. The grounds for

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the remaining grounds of appeal. This case is sufficient for this court to directly render a judgment, and the judgment of the court of first instance which dismissed the lawsuit of this case is dismissed. The costs of the lawsuit after the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)