[Defendant-Appellee] The Head of Si/Gun/Gu Office

Ulsan Metropolitan City Head of Ulsan Metropolitan City (Law Firm International Law Firm, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

January 22, 2010

Ulsan District Court Decision 2009Guhap199 Decided September 9, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's disposition to reflect the application for the draft of an urban management plan against the plaintiff on November 10, 2008 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this Court’s judgment is as follows: (a) evidence No. 29 of the first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s second instance court’s first instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s

2. The addition;

“2. Judgment on the Defendant’s main defense of safety

A. The Defendant asserts that since the authority to formulate the instant urban management plan is the Ulsan Metropolitan City Mayor, the Defendant cannot seek cancellation of the instant disposition against the Defendant, and that even if a proposal for formulating the said urban management plan was merely based on the pre-stage stage of determination of the urban management plan, it cannot be said that it directly affects the rights and duties or legal relations of the landowners, etc. within the urban management plan zone, and thus, the Defendant’s disposition that rejected the proposal for formulating the instant

Article 24 of the National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “National Land Planning Act”) provides that a Special Metropolitan City Mayor, a Metropolitan City Mayor, or the head of a Si/Gun shall formulate an urban management plan on his/her jurisdiction. Meanwhile, Article 26(1) of the National Land Planning and Utilization Act provides that residents, including interested parties, may propose the formulation of an urban management plan to a drafting authority, and stipulates matters concerning the installation, maintenance, or improvement of infrastructure (Article 1). Article 2 Subparag. 6 of the National Land Planning and Utilization Act provides that public health and sanitary facilities, such as crematoriums, cemeteries, and charnel facilities, shall be defined as one of the infrastructure. Furthermore, in light of the provisions of Article 26(2) of the National Land Planning and Utilization Act and the purport of guaranteeing property rights under the Constitution, the Defendant is the drafting authority of the instant site under his/her jurisdiction, and thus, is the subject of the formulation of an urban management plan and the return of the plan to a land within 200.

Therefore, the plaintiff can file an appeal for revocation against the defendant's rejection of the proposal of the management plan of this case. Thus, the defendant's defense of this safety is without merit.

B. The defendant also asserts that even if the plaintiff proposed an urban management plan on the charnel facilities of this case, under the proviso of Article 43 (1) of the National Land Planning Act, Article 35 (1) 1 (c) of the Enforcement Decree of the above Act (amended by Presidential Decree No. 21807 of Nov. 2, 2009), and Article 6 (1) 9 of the Enforcement Rule of the above Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 160 of Aug. 19, 2009), the above charnel facilities may be installed without the determination of the urban management plan. In addition, even if the defendant accepted the plaintiff's proposal of the above urban management plan of this case, such urban management plan does not necessarily have to be formulated or determined, and the defendant does not have any status to decide such urban management plan. Accordingly, the defendant's act of rejecting or rejecting the formulation of the urban management plan on the charnel facilities of this case cannot be considered as the subject matter of appeal lawsuit, and there is no interest in litigation since the plaintiff can

However, as seen earlier, the return of the drafting proposal of the instant urban management plan constitutes an administrative disposition subject to appeal litigation, and whether the facilities can be installed without the decision of the urban management plan in judging the disposition of the return of the drafting proposal, or whether the defendant should be in the position to accept the drafting proposal of the instant urban management plan or to make a decision by the said urban management plan after the conclusion of the determination of the disposition of the drafting proposal, and even if the plaintiff is separate from the drafting proposal and decision of the urban management plan, it is irrelevant to the existence of interest in the instant lawsuit, and therefore, the defendant's main safety defense is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Jin-tae (Presiding Judge) (Presiding Justice)