[1] In a case where a hearing is not held in the revocation of a disposition to designate a project operator under Article 23 (5) of the former Urban Planning Act, whether the revocation of a disposition to designate a project operator without the procedure is illegal (affirmative)

[2] In a case where an administrative agency entered into an agreement on the implementation of an urban planning project with a party and established a provision that excludes hearing procedures, such as holding a hearing under the relevant Acts and subordinate statutes and the Administrative Procedures Act, whether the application of the provision on holding a hearing is an exceptional case where a hearing is excluded or it does not require a hearing

[1] According to Articles 78 and 78-2 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), and Articles 22(1)1, 78-4, and 21(4) of the Administrative Procedures Act, an administrative agency shall hold a hearing to revoke a project operator’s designation under Article 23(5) of the former Urban Planning Act. However, a hearing may not be conducted only in cases falling under the exception under Articles 22(4) and 21(4) of the Administrative Procedures Act. In light of the purport of the hearing system, it is intended to consider the possibility of correction of the illegal cause by giving the parties an opportunity to submit materials favorable to defend themselves and favorable to the disposition, so long as the administrative agency does not necessarily fall under exceptional cases where a hearing is not conducted due to the consequence of infringing administrative disposition, the administrative agency’s lack of the hearing procedure constitutes grounds for revocation of unlawful disposition.

[2] Even if an administrative agency entered into an agreement on the implementation of an urban planning project with a party and excluded the procedures for hearing opinions, such as the implementation of a hearing under the relevant statutes and the Administrative Procedures Act, it shall not be deemed an exceptional case where the application of the provisions on the implementation of a hearing is excluded or the execution of a hearing is not allowed, in light of the purpose of the Administrative Procedures Act to ensure the fairness, transparency, and reliability of administration and protect the rights and interests of the people, and the purport of the hearing system, etc. by allowing citizens to participate in the administration.

[1] Articles 23(5), 78, and 78-2 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), Articles 21(4), 22(1)1 and (4) of the Administrative Procedures Act / [2] Articles 23(5), 78, and 78-2 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), Articles 21(4), 22(1)1 and (4) of the Administrative Procedures Act

[1] Supreme Court Decision 99Du5870 decided Nov. 14, 2000 (Gong2001Sang, 56), Supreme Court Decision 2000Du337 decided Apr. 13, 2001 (Gong2001Sang, 1143), Supreme Court Decision 2002Du7517 decided Mar. 12, 2004 (Gong2004Du1254 decided May 28, 2004)

Daeyeong-mad Co., Ltd. (Attorney Lee Dong-young, Counsel for the defendant-appellant)

Ansan City (Law Firm Ansan, Attorneys Nam Jong-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Nu11801 delivered on August 22, 2002

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

First, we examine the grounds of appeal on the hearing of opinion under Article 22 of the Administrative Procedures Act.

1. The judgment of the court below

According to the reasoning of the judgment below, on June 26, 200, the court below held that the defendant's rejection disposition against the plaintiff on June 26, 200 (hereinafter "the disposition of this case") was a disposition revoking the disposition that the plaintiff designated as the concessionaire of the urban planning project of this case on January 19, 200 at the same time, and rejected the plaintiff's application of this case's approval order or public hearing in the case of the above disposition of this case's Disposition of this case's "the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 2000 and enforced July 1, 200, hereinafter "the former Urban Planning Act") since it is obvious that the defendant was unlawful or violated in the process of designation of the project operator of this case, and therefore, it was not legitimate to give the plaintiff an opportunity to present an opinion under Article 21 (4) 20 of the Administrative Procedures Act's revocation order and notification of this case's approval order.

2. The judgment of this Court

However, this part of the judgment of the court below is not acceptable for the following reasons.

A. According to Articles 78 and 78-2 of the former Urban Planning Act, Article 22(1)1 and (4), and Article 21(4) of the Administrative Procedures Act, an administrative agency shall hold a hearing to revoke the designation of a project operator pursuant to Article 23(5) of the former Urban Planning Act. However, a hearing may not be held only where an administrative agency falls under exceptional grounds prescribed in Articles 22(4) and 21(4) of the Administrative Procedures Act. The hearing system is intended to consider the possibility of correction of unlawful grounds and to ensure the appropriateness and appropriateness of the disposition by granting parties an opportunity to submit materials favorable to defend themselves in relation to the administrative disposition. In light of the purport of the hearing system, a hearing shall be conducted only if it does not fall under exceptional cases where an administrative agency is unable to hold a hearing on grounds of infringement of administrative disposition, and a disposition lacking the procedure constitutes grounds for revocation (see, e.g., Supreme Court Decision 200Nu31371, Jul. 9, 191).

In addition, the instant disposition is an infringing administrative disposition revoking the designation of the project implementer of the instant urban planning project. The Plaintiff’s revocation of the designation as the project implementer will not only incur considerable loss to the expenses incurred in preparing the said project, but also lose the expected interest for the said project. Therefore, in order to prepare for such situation, it is necessary to obtain prior notification of the instant disposition, and it is not necessary to have an opportunity to submit materials favorable to the defense through the hearing procedure, etc., and there is no need to have an opportunity to submit materials favorable to the defense. In addition, in addition to the designation as the project implementer, there is no urgent circumstance that it is possible to implement the project only when it is possible to obtain authorization of the implementation plan pursuant to Article 25(1) of the former Urban Planning Act, and thus, it cannot be deemed that the instant disposition falls

In addition, even if an administrative agency entered into an agreement with the parties regarding the implementation of an urban planning project and excluded the procedures for hearing opinions such as the implementation of a hearing under the relevant statutes and the Administrative Procedures Act, in light of the purpose of the Administrative Procedures Act to ensure fairness, transparency, and reliability in administration and to protect the rights and interests of the people, and the purport of the hearing system as seen earlier, barring any statutory provision that can be deemed excluded from the application of the provisions on the implementation of a hearing by entering into such agreement, it shall not be deemed an exceptional case where the application of the provisions on the implementation of a hearing is excluded or it is unnecessary to conduct a hearing, on the ground that such agreement was entered into.

Nevertheless, the court below concluded that there is no need to give an opportunity to state opinion, such as holding a hearing, in rendering the disposition of this case on the grounds as stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on cases where the holding of a hearing and hearing of opinions may not be held.

B. In addition, according to the records, the notice of April 6, 200 and April 26, 200 by the defendant applied to the plaintiff for designation of a project operator and authorization of an implementation plan under Articles 23(5) and 25 of the former Urban Planning Act, and notified the plaintiff that the agreement was terminated because the defendant was avoided the project of this case if the notice is not made by the specified date. The plaintiff applied for authorization of the urban planning project on May 6 of the same year in accordance with the above notice, and the defendant did not implement the above notice, on the ground that the above notice was not implemented. Thus, it cannot be deemed that the defendant provided the plaintiff an opportunity to state his opinion with regard to the disposition of this case.

Nevertheless, the court below held that the defendant made the above notification and provided the plaintiff with an opportunity to state his opinion. Thus, there is an error of law by misunderstanding the legal principles on giving an opportunity to state his opinion.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Cho Cho-Un (Presiding Justice)