[1] Requirements to permit the relocation of a removed building due to public works, etc. in a development-restricted area under Article 7 (1) 3 (g) (1) of the Enforcement Rule of the former Urban Planning Act

[2] Whether an appeal seeking revocation of an administrative disposition can be asserted as a ground for disposition, in an appeal litigation, as a ground for revocation of an administrative disposition, a separate fact that is not identical to that of the original disposition (negative)

[3] The case holding that the allegation that a non-permission disposition is legitimate on the grounds that another person filed an application for the removal of a building in order to allow the new construction of a building within a development-restricted area by already abandoning the right to file an application for the removal of a building does not coincide with the original grounds for the non-permission disposition

[1] In light of the purpose of designating development restriction zones and the purpose of designating development restriction zones under Article 21 (2) and (3) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), and the purport and contents of Article 20 (1) 1 (f) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16891 of Jul. 1, 200), if the existing building was located in the boundary of an Eup/Myeon/Dong within the development restriction zone and the purpose and contents of the relevant provisions, it is reasonable to interpret that the existing building was located in the development restriction zone and where the existing building was located in the boundary of an Eup/Myeon/Dong and where the existing building was located in the development restriction zone and where the existing building was located in the boundary of an Eup/Myeon/Dong within the development restriction zone and its purpose and, in principle, it is reasonable to interpret that the existing building was not within the boundary of an Eup/Myeon/Dong within the development restriction zone.

[2] In an appeal seeking the revocation of an administrative disposition, from the perspective of the substantial rule of law and the protection of trust in the people who are the other party to the administrative disposition, the agency can add or modify a new ground for disposition only to the extent recognized as identical in the grounds for the original disposition, and it is not allowed to assert a ground for disposition on the ground of a separate fact that is not recognized as identical to the basic facts

[3] The case holding that the allegation that a non-permission disposition is legitimate on the grounds that another person filed an application for the removal of a building in order to allow the new construction of a building within a development-restricted area by already giving up the right to file an application for the removal of a building does not coincide with the original grounds for the non-permission disposition

[1] Article 21 of the former Urban Planning Act (amended by Act No. 6243, Jan. 28, 200; Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655, Feb. 4, 2002); Article 20 (1) 1 and (2) of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891, Jul. 1, 200; Article 20 (2) of the former Enforcement Decree of the Urban Planning Act (repealed by Presidential Decree No. 17816, Dec. 26, 200); Article 20 (1) 3 (g) of the former Enforcement Decree of the Urban Planning Act (amended by Act No. 2405, Jul. 4, 200); Article 201 of the former Enforcement Decree of the Urban Planning Act (amended by Act No. 20165, Dec. 31, 2002) / [2] Article 166 of the former Urban Planning Act

[1] Supreme Court Decision 90Nu1878 delivered on February 12, 1991 (Gong1991, 990) Supreme Court Decision 91Nu8128 delivered on May 12, 1992 (Gong1992, 185) 95Nu10471 delivered on June 14, 1996 (Gong1996Ha, 2217) 85Nu694 delivered on July 21, 1987 (Gong1987, 1994, 1997Du19694 delivered on November 29, 197) 91. 20Nu70 delivered on September 29, 197 (Gong1992, 126)

Plaintiff (Attorney Jin-cil, Counsel for the plaintiff-appellant)

The head of North Korea of Busan Metropolitan City

Busan High Court Decision 2000Nu1430 delivered on April 20, 2001

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal (the supplemental appellate brief not timely filed)

Re-determination is made to the extent of supplement in the grounds for appeal.

1. Summary of the judgment below

A. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for revocation of the instant disposition on the ground that the Plaintiff, the wife of the deceased, was located in the zone of Gangseo-gu, Busan (No. 1 omitted), Busan (hereinafter “the instant construction”) and the size of 420 square meters, located in the development restriction zone, was located in the airport located in Busan Metropolitan City (hereinafter “the instant construction”). On November 1998, the land was expropriated, and 1,63.72 square meters per 63.72 square meters per 1, the deceased’s house owned by the deceased was demolished on April 23, 1999 after the decedent was expropriated together with other land owned by the deceased, and the Plaintiff, the wife of which was located in the development restriction zone, did not fall under the Plaintiff’s claim for revocation of the instant disposition on the ground that 290 square meters (hereinafter “the instant building site of this case”) was not subject to the Plaintiff’s application for permission for new construction on the ground of the same 94.5 square meters on the ground of this case.

In other words, Article 7 (1) 3 (g) (i) of the former Enforcement Rule of the Urban Planning Act (amended by Ordinance of the Ministry of Construction and Transportation No. 220 of December 8, 199), and Article 7 (1) 3 (g) (i) of the former Enforcement Rule of the Urban Planning Act (amended by Ordinance of the Ministry of Construction and Transportation No. 220 of December 8, 199), and Article 7 (1) 3 (g) of the former Enforcement Rule shall be interpreted to refer to other Dongs abutting on the boundary with the Dong with the jurisdiction of the place of removal in ordinary cases. However, it is reasonable to reasonably consider that the boundary between the former 1 Dong and the latter 1 Dong can be determined differently from the case of the Gu 1 Dong 2-dong and the case of the Gu 1-dong dong 2-dong 3-dong 3-dong 3-dong 1-dong 1-dong 1-dong 1-dong 1-dong 2-dong 1-dong 1-Dong 1-dong 2-dong 3-dong 1-dong 1-dong 2- will not be regulated.

In addition, there is no sufficient evidence to recognize that the site for the transfer of this case falls under the "land created by legitimate procedures", "site and miscellaneous land under Article 7 (1) 3 (g) (7) of the Enforcement Rule of the former Urban Planning Act", and rather, according to the evidence of the judgment, the site for the transfer of this case is a land category answer, and the application for the transfer of this case appears to have been naturally left alone together with the land of Taecheoncheon, and therefore, the application for the transfer of this case also contains the permission of changing the form and quality of land as a single subject of the application for the transfer of this case. Therefore, the application for the transfer of this case does not fall under the requirements of item (g) (7)

B. Furthermore, in the instant case, the lower court asserted that Nonparty 2 filed the instant application with the view to enabling Nonparty 3 to build a new building within the development-restricted area. Of course, it would be difficult to determine whether the instant application may be added depending on the identity of basic facts. However, if the Plaintiff received an application for a new construction on November 23, 198, 297, 913,910 won, for the following reasons, it would be deemed that the Plaintiff 2 would not have been permitted to live in the said area on the same 9-year basis as the instant application for a new construction. The lower court determined that the Plaintiff’s subsequent application for a new construction on the same 9-year basis as the instant 2-year ground for the removal of the instant building on the same 9-year basis as the instant application for a new construction on the same 9-year basis, and that the subsequent application for a new construction on the same 9-year basis as that of the Plaintiff’s 13-story building located within the same 9-year area.

2. The judgment of this Court

A. However, the lower court’s judgment is difficult to accept as it is for the following reasons.

(1) According to Article 21(2) and (3) of the former Urban Planning Act (amended by Act No. 6243, Jan. 28, 200; hereinafter referred to as the “Act”), Article 20(1)1(f) and (2) of the Enforcement Decree of the Act (amended by Presidential Decree No. 16891, Jul. 1, 200); Article 7(1)3(g)(1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 16891, Jul. 1, 200), etc., a building cannot be constructed in violation of the purpose of designation of the area. However, it is not possible to construct a building in a development-restricted area in violation of the purpose of designation of the area. However, the "public works", "public works, village joint projects, or neighboring villages (including the nearest distance where there are special circumstances, and the nearest Eup/Myeon/Dong area where daily smoke is lost)."

In light of the purpose of designating development restriction zones and the purport and contents of the above relevant provisions, "in neighboring land or neighboring village, which is a branch where a building removed from the above project can be permitted to be removed from the above project under Article 7 (1) 3 (g) (1) of the Enforcement Rule of the Act shall, in principle, be located in an Eup/Myeon/Dong, such as an Eup/Myeon/Dong in which the existing building was removed. However, if a living smoke notification is lost, it shall be interpreted that it includes the land or village located in another Eup/Myeon/Dong where the existing building was located in the boundary of an Eup/Myeon/Dong where the existing building was located (see Supreme Court Decision 95Nu10471 delivered on June 14, 196). Meanwhile, in light of the case where a person living within a development restriction zone and his/her institutional purport of recognizing the axis is within the extent that does not interfere with the realization of the purpose of designating a development restriction zone, the boundary between the existing building and the existing building on the boundary of the land can not be seen as the boundary.

However, according to the records, since from around 1972, the plaintiff, who was living in Gangseo-gu, Busan ( Address 5 omitted) with the deceased, was accommodated with the land and its ground subject to expropriation, which was the basis of living due to the construction of this case, and 575 square meters prior to Gangseo-gu, Busan ( Address 6 omitted), Gangseo-gu, Busan ( Address 7 omitted), can be deemed to be lost, and the Dong ( Address 8 omitted) where the building subject to expropriation of this case is located and Dong ( Address 9 omitted) where the building of this case is located and Dong ( Address 9 omitted) where the building of this case is located and Dong ( Address 8 omitted) where the building of this case is located and the building of this case adjoins part of it. Thus, it is reasonable to view that the application for the discharge of this case constitutes land within the scope of obtaining permission under Article 7 (1) 3 (g) of the Enforcement Rule of the Act.

(2) In addition, Article 7 (1) 3 (g) (g) of the Enforcement Rule of the Act provides that, in principle, it shall be sufficient to reduce the inconvenience of the residents by expanding the subject of application to the relevant Si/Gun/Gu or to the Si/Gun/Gu adjacent thereto where the land to be removed is created by legitimate procedures, such as a site and a miscellaneous land, except in extenuating circumstances.

However, even according to the facts acknowledged by the court below, since the land category of the application site for the transfer of this case is the answer, and it is not a forest since it is not a forest as it is naturally left as it is, along with the Taecheon Branch, it cannot be said that the application site for the transfer of this case does not meet the requirements of subparagraph (g) (7).

(3) If the facts are found, the Plaintiff appears to meet the requirements for the application for a permit for a permit for a permit for a stable, barring special circumstances, but the lower court determined that the instant disposition was lawful, which limitedly interpreted the requirements for the permit for a permit for a stable permit without any reasonable ground. In so doing, the lower court erred by misapprehending the legal doctrine on the permit for a permit for a stable permit,

The ground of appeal pointing this out is with merit.

B. Furthermore, the lower court’s assumptive judgment is also inappropriate for the following reasons.

In an appeal litigation seeking the cancellation of an administrative disposition, from the perspective of the substantial rule of law and the protection of trust in the people who are the other party to the administrative disposition, the agency can add or change a new ground for disposition only to the extent that it is recognized as identical to the original ground for disposition, and it is not allowed to assert a separate ground for disposition on the ground that it is not recognized as identical to the basic facts (see Supreme Court Decisions 95Nu9051, Dec. 12, 1995; 9Du6392, Mar. 23, 2001, etc.).

Therefore, even though the Defendant asserted to the effect that the disposition of this case was legitimate because he had Nonparty 2 built a new building in a development-restricted zone, even though he had had had had had had the deceased ever been able to build a new building on the part of the deceased, the above assertion cannot be added to the grounds for disposition as it is apparent that the grounds for the disposition of this case and the basic facts do not coincide with the original grounds for the disposition of this case, so the court below should have rejected the Defendant’s assertion on this ground, and should not further determine the substance of the argument.

Nevertheless, the court below held that the disposition of this case was lawful at the end of the fact-finding as to the above assertion, and there is no error in the misapprehension of legal principles as to the addition of grounds for disposition or the scope of deliberation in an appeal litigation.

The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)