2014Nu69251 The revocation of revocation of revocation of the park site

door-○

Mayang-si

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

Seoul Special Metropolitan City Mayor

Litigation performer ○○○

Seoul Administrative Court Decision 2014Guhap981 decided October 23, 2014

August 25, 2015

September 15, 2015

1. Revocation of the first instance judgment.

2. The Defendant’s rejection disposition against the application for cancellation of the decision on urban planning facilities (parks) of each land listed in the separate sheet No. 1 attached hereto against the Plaintiff on March 27, 2014 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

It is so decided as per Disposition Nos. 1 and 2.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by adding the whole purport of the pleadings to each entry in Gap evidence 1, 4, 5, Eul evidence 1, Eul evidence 2, 3-1, 2, and 3.

A. On January 16, 1968, the Minister of Construction and Transportation decided and publicly announced that one part of the land, including the land listed in the annexed Table 1 list (hereinafter “instant land”) as one of the urban planning facilities, as a green area on the right side of the instant land on the park [the part located on the boundary of the Sinsan Urban Natural Park, the annexed Table 3 satellite photograph (No. 5, the part connected to the road on the boundary of the red lines and green areas are the land in this case), the size of which is approximately KRW 15,00,000 square meters] as a green area on the right side of the instant land. On December 23, 1983, the Minister determined and publicly announced a park building plan to install the Guate on the instant land under the annexed Table 1 list No. 419 of the Construction Division notification.

B. On the other hand, with respect to the land listed in [Attachment 1] List 2 on August 27, 1981 and December 7, 1981

Of the land listed in attached Table 1 List 3, 248/496 of shares in the land listed in attached Table 1 List 3, 2/3 shares in the land listed in Attached Table 1 List 5 on September 17, 1982, 1/2 shares in the land listed in Attached Table 1 List 4 on March 31, 1987, and the registration of ownership transfer is completed in the future of each plaintiff on September 25, 1989.

The registration of ownership transfer was completed in the ○○○, ○○○, ○○, and ○○○○ with respect to the land listed in [Attachment 1] list 5.

C. On April 10, 1985, the Plaintiff obtained permission from the Defendant for urban planning projects (construction of park facilities) to establish a tennis on the instant land, and completed the tennis on or around January 20, 1986 (Public Notice No. 34 of Seoul Special Metropolitan City). From around that time to August 7, 2011, the Plaintiff paid a charge.

D. On March 19, 2014, the Plaintiff filed an application for the cancellation of the determination of urban planning facilities (park) with the purport of requesting the Defendant to purchase the instant land or cancel the designation as a park site (hereinafter “instant application”). However, on March 27, 2014, the Defendant did not apply Article 48(1) of the National Land Planning and Utilization Act as to the invalidation of the determination of urban planning facilities as to the instant land (construction of park facilities) as it was completed on March 27, 2014. Article 48(1) of the National Land Planning and Utilization Act does not apply to the Plaintiff. (2) The Seoul Special Metropolitan City is entitled to compensation for a long-term undeveloped park site for which urban planning facilities have not been implemented. However, the instant land is not subject to compensation because it was already completed in the urban planning project (construction of park facilities). (3) Urban park facilities necessary to protect the urban environment and natural environment and contribute to the improvement of the pleasant living environment and peace of citizens, and it is difficult to comply with the reasons for cancellation in principle, “A’ reply to the park.”

2. Judgment on the defendant's main defense

A. The defendant's main defense

The defendant asserts that there is no provision that residents may apply for the cancellation of urban planning facilities under the National Land Planning and Utilization Act (amended by Act No. 11998, Aug. 6, 2013; hereinafter referred to as the "former National Land Planning Act") and that there is no change in circumstances with regard to a long-term and comprehensive administrative plan, such as urban planning, after the plan is finalized, and thus it cannot be recognized that the residents have the right to request the modification of the plan. Thus, there is no right to request the plaintiff to cancel the decision of urban planning facilities (park), and the plaintiff merely filed a civil petition without complying with the procedure and form for the formulation of urban planning plans under Article 26 of the former National Land Planning and Utilization Act, so the answer in this case is merely a civil petition and cannot be deemed an administrative disposition that is the object of a lawsuit for appeal.

B. Determination

The former National Land Planning Act provides for matters necessary for the formulation, implementation, etc. of a plan for the utilization and preservation of national land to promote public welfare and to improve the quality of life of the people, thereby reducing restrictions on the exercise of individual property rights due to the determination of urban or Gun planning facilities (Article 47), and on the invalidation of the determination of urban or Gun planning facilities (Article 48), as well as the provisions on the invalidation of the determination of urban or Gun planning facilities (Article 48) every five years for the Special Metropolitan City Mayor, Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or head of Si or Gun (hereinafter referred to as the "Drafting authority"), who is a person entitled to formulate an urban or Gun management plan, to comprehensively review whether an urban or Gun management plan under his/her jurisdiction is appropriate (Article 34), and the residents (including interested parties), to require the person entitled to formulate an urban or Gun management plan to formulate and amend the plan, including the matters on the installation, improvement or improvement of infrastructure, designation and district planning.

Based on the above legal principles, since the Plaintiff constitutes a significant owner of the instant land determined as urban planning facilities (park), who has an interest in the determination of the relevant urban planning facilities (park), the Plaintiff has the right to file an application under the law or sound reasoning to demand the formulation or alteration of the said determination of urban planning facilities (park). Therefore, with respect to the Plaintiff’s request for the cancellation of the designation of urban planning facilities (park) on the instant land upon the instant request, it is reasonable to view the instant reply to the purport that the Defendant rejected it as an administrative disposition subject to appeal litigation. The Defendant’s main defense against the instant reply cannot be accepted.

A. The plaintiff's assertion 1) The plaintiff's assertion

In light of the current utilization status of the instant land and its neighboring land and, in particular, around May 2010, the fact that the Gu tennis was newly established in the vicinity of the instant land, there is no need to maintain the instant land as an urban planning facility (park), and the Defendant did not present a detailed plan for the utilization of the instant land. On the other hand, the Plaintiff purchased the instant land for the purpose of constructing the instant land, but was subjected to a long-term restriction on the use and profit-making of the instant land due to the designation of urban planning facilities (park). Accordingly, even though the designation of urban planning facilities (park) on the instant land should be revoked, the instant reply was unlawful since the Defendant made the instant reply by deviating from and abusing the discretion.

2) The defendant's assertion

The instant land has been abandoned without operation of park facilities and has temporarily been abandoned and functioned as park facilities (teice site) for a long time, and there is a great need to maintain the instant land as a park to protect the living environment of neighboring residents of the instant land. Since the Plaintiff acquired the instant land with knowledge that there is a limitation on ownership, it cannot be said that the Plaintiff has a significant private interest infringed on. Accordingly, the designation of urban planning facilities (park) as to the instant land should be maintained, and the instant reply is lawful.

B. Relevant statutes

Attached Form 2 is as shown in the relevant Acts and subordinate statutes.

C. Determination

1) Basic legal principles

The term "administrative plan" means a set of activity criteria to realize a certain order at a certain point in the future by integrating and coordinating related administrative means 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. The relevant Acts and subordinate statutes only provide abstract administrative goals and procedures, and do not provide any particular provision with respect to the contents of the administrative plan, and thus, the administrative agency has relatively broad freedom in formulating and determining a specific administrative plan. However, the freedom of such formation held by the administrative agency is not unlimited, but is not limited to the legitimate comparison between the public interest and private interest, as well as between the public interest and private interest, and the private interest. Thus, if the administrative agency establishes and determines the administrative plan, it is unlawful in imposing the administrative plan, or where the administrative agency fails to provide the profit balancing at all or to include the matters that should be determined by the consideration of the profit balancing, but lacks legitimacy and objectivity (see Supreme Court Decision 196Da19688, Apr. 1, 1996).

11. Supreme Court Decision 96Nu8567 Decided February 29, 201; Supreme Court Decision 2010Du21464 Decided February 24, 201, etc.

The foregoing legal doctrine also applies to cases where an administrative body accepts a proposal for the formulation of an urban management plan by residents under Article 26 of the former National Land Planning Act and decides whether to make a decision on an urban management plan (see Supreme Court Decisions 2009Du16978, Feb. 11, 2010; 2010.3.

25. Furthermore, an application for alteration of an urban planning facility shall be filed with the determination authority of an urban planning facility with respect to which a resident who owns land, etc. in an urban planning facility zone has not been executed for a long time, and the same shall apply to the determination authority to accept such application and determine whether to modify an urban planning facility (see Supreme Court Decision 2009Du21499, Feb. 2012)

1. 12.see, e.g., Supreme Court Decision 2010Du5806, supra)

2) Whether the discretionary authority is deviates or abused or not

In light of the above legal principles, the following circumstances are recognized if the evidence as seen earlier added the purport of the entire pleading to the statement No. 5 No. 5.

① The Plaintiff had already designated the instant land as an urban planning facility (park) before acquiring the ownership of a part of the instant land. Although housing had already been concentrated on the left side of the instant land at the time of the said acquisition of ownership, it is reasonable to deem that the Plaintiff acquired the instant land with the knowledge that the instant land was restricted in exercising the ownership of the instant land, comprehensively taking account of the fact that the land category of the instant land was forest and field. ② Following the determination and public notice of the park building plan for the instant land and the completion of the urban planning project (construction of park facilities), it is not recognized that the instant land was actually used as the park site from January 20, 1986 to August 7, 201 (amended by Act No. 13051, Jan. 20, 2015; hereinafter referred to as the “Urban Park & Park Act”) as the urban park and green area Act (amended by Act No. 13051, Jan. 20, 2015).

However, considering the above facts and the following circumstances, Gap evidence Nos. 5, 6, 7, and Eul evidence Nos. 6 and Eul evidence Nos. 6 added to the whole purport of the pleadings, considering the following circumstances, the plaintiff's private interest infringed upon by maintaining the land of this case as urban planning facilities (park) at the time of the response of this case is larger than the public interest due to maintaining the land of this case as urban planning facilities (park) as at the time of response of this case, so it is reasonable to view the response of this case that the rejection of the application for cancellation of the decision of urban planning facilities

1) ① In light of the legislative intent of the Act before the repeal of the Act, which is the basis for designating and maintaining the instant land as an urban planning facility (infrastructure), such as the Urban Planning Act, Park Act, Urban Park Act, National Land Planning Act, National Land Planning Act, and Park Park Act, urban planning facilities are built for the purpose of promoting the sound development of the city and promoting public safety and order and public welfare. In particular, urban parks have the public interest purpose to contribute to the protection of natural scenery and the improvement of citizens’ health, recreation

② Although a park building plan on the instant land was publicly announced on December 23, 1983, the Defendant did not create the instant land as a park. Accordingly, the Plaintiff obtained permission for and permission for extension of an urban planning project, and operated the tennis on the instant land from January 20, 1986 to August 7, 201, and the Plaintiff left the instant land without being used for any purpose after the completion of the management of the tennis.

③ According to the images set forth in Appendix 3 (No. 5), due to the road (in light of the images set forth in the Evidence No. 5, it appears that the Plaintiff was packaging before and after the purchase of the instant land) located on the right side of the instant land, the instant land is separated from the green belt (Taksan Urban Natural Park) located on the right side. Although the instant land is concentrated with a house located on the left side of the instant land (as a result, according to the images set forth in the evidence No. 5, the Plaintiff had already been newly constructed a house before the purchase of the instant land), it appears that there were a large number of parks or sports facilities, such as a 0-sports park, neighboring park, natural park, 00, 00, 00, and 00 residents’ culture and sports center, etc., and even if the instant land was not the instant land, neighboring residents of the instant land could sufficiently enjoy health, recreation, and emotional life by using the said green belt and sports facilities.

④ In particular, around around May 2010, about about 1km and about 15 minutes from the instant land, the Gu teice 00 teice techen was newly established around around May 2010. The 00 techen was equipped with six sides of the area of 5,080 square meters and lighting and lighting facilities, and the Plaintiff appears to have been equipped with more convenient and pleasant facilities than the techen that the Plaintiff had been operated on the instant land. The distance also is close to the point where the neighboring residents of the instant land can sufficiently use. In addition, the construction of the 00 techen, it is difficult to view that there exists a realistic need to provide the instant land to the techen in accordance with the park building plan.

⑤ The size of the land, which was designated as the previous urban planning facilities (park) and planned to build the tennis in accordance with the park building plan, was 3,244 meters in total, and accordingly, the Plaintiff installed the teccote of five pages on the said land. However, the Defendant purchased part of the said land, constructed the road, and used it for establishing the school, and only the instant land of 2,922 meters in total in the area corresponding to the teccote of four pages was left. The Defendant denied the need to maintain the said land as the park with respect to a part of the land designated as the urban planning facilities (park) along with the instant land, and was also cancelled from the urban planning facilities (park) to use it for purposes other than the park.

(6) Although an urban park may build facilities, buildings, or structures, other than park facilities, with permission to occupy and use in the urban park, it is limited to facilities for public interest, or the main purpose and form of restrictive use (see Article 24(1)1, (2), and (3) of the former Act on Parks and Greenbelts, and Article 22 of the Enforcement Decree of the Act on Parks and Greenbelts (Amended by Presidential Decree No. 25585, Sep. 2, 2014)). Therefore, it does not seem that the Plaintiff may construct the housing or the buildings he/she wishes to use on the instant land.

7) The instant land was designated as an urban planning facility (park) for about 46 years from around 1968 to around 2014, and the Plaintiff owned part of the instant land from around 1981 to around 1987 up to around 27 to 33 years from around 2014, and was able to use the instant land only for the use of the tennis as prescribed in the park building plan. However, since around May 2010, it is practically impossible for the Plaintiff to operate the tennis by inserting the private expenses from the instant land into the vicinity of the instant land. As long as the instant land is maintained as an urban planning facility (park), it is difficult to find the method of the Plaintiff to otherwise utilize the instant land.

(8) Nevertheless, on November 5, 201, the transfer date of the instant reply, the Defendant cannot accept the Plaintiff’s civil petition with respect to the instant land or the Plaintiff’s request for the cancellation of the designation of urban planning facilities (parks), and provided that there was no plan to create a park on the instant land separately in Seoul Special Metropolitan City, and did not prepare any plans or measures to utilize the instant land for any purpose other than the tennis. At the last date for pleading of the instant case, the Plaintiff stated that at the last date for pleading of the instant land, the Plaintiff would have to operate the tennis station in accordance with the original purpose for the park site, and did not present a detailed park building plan other than the tennis station.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted, and since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the judgment of the court of first instance and accepting the claim of this case.

The presiding judge shall admonish a judge;

Judge Seo-dae

Judge Voluntary Award