Whether an administrative agency’s rejection of an application filed by a landowner in a cultural heritage protection zone to revoke the designation of the cultural heritage protection zone constitutes an administrative disposition subject to appeal litigation (affirmative)

While the purpose of the Protection of Cultural Properties Act is to promote improvement in the cultural life of the people and contribute to the development of human culture by preserving and utilizing cultural properties, in order to reduce restrictions on the exercise of property rights in accordance with the designation of cultural properties protection zones, administrative agencies are obliged to examine the appropriateness of the designation of protection zones at a certain period of time, and delegated matters concerning the review, etc. to be determined by the Ordinance of the Ministry of Culture and Tourism. As a result of the review, Article 3-2(1) of the Enforcement Rule of the same Act provides that when the designation of protection zones is not appropriate or there are other special reasons, the designation of protection zones shall be cancelled or adjusted. Article 8(3) of the same Act provides that when examining the appropriateness of the designation of protection zones, the designation of protection zones shall be considered in addition to the preservation value of the cultural properties concerned and the impact of the designation of the protection zones on the exercise of property rights in accordance with the purpose of protecting individual property rights under the Constitution, land owners, etc. in the protection zones of cultural properties shall have the right

Articles 8 (2) and (3), 12 (4) of the Cultural Heritage Protection Act, Article 3-2 (1) of the Enforcement Rule of the Cultural Heritage Protection Act, Article 2 of the Administrative Litigation Act

Plaintiff 1 and three others (Attorney Kim Jae-hwan, Counsel for the plaintiff-appellant)

The Governor of Gyeonggi-do

Seoul High Court Decision 2002Nu14463 delivered on July 15, 2003

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

1. Summary of the judgment of the court below

A. According to the reasoning of the judgment below and the reasoning of the judgment of the court of first instance as cited by the court below, the court below acknowledged that the defendant designated and publicly notified Ansan-do and Cheongsan-si discovered at 26-4, Ansan-dong, Masan-dong, Masan-si as Do-designated cultural heritage, and on June 8, 1992, in order to protect this, 52,122 square meters in total from the inside and outside of Ansan-si and the outer 10 meters to the outer 10 meters, as the cultural heritage protection area of this case, on the grounds that the plaintiffs owned the land located within the cultural heritage protection area of this case and applied for the cancellation of the designation of cultural heritage protection area owned by the defendant on July 14, 201 and September 28, 200, the defendant rejected the plaintiffs' request on October 5, 201 to revoke the designation of the cultural heritage protection area of this case as the cultural heritage protection area of this case.

B. Furthermore, as to the legitimacy of the instant lawsuit seeking the revocation of the revocation of the instant disposition by deeming the instant reply as the rejection disposition and seeking the revocation of the rejection disposition, the lower court did not have a separate provision that the Do governor would cancel the designation through deliberation of the Gyeonggi-do Cultural Heritage Committee, on the grounds that (1) as to the revocation of the designation of cultural heritage protection zones for protecting cultural heritage under the Cultural Heritage Protection Act (amended by Act No. 613, Jan. 12, 2000; hereinafter referred to as the "Act") and the Gyeonggi-do Ordinance on the Protection of Cultural Heritage (amended by Act No. 3170, Feb. 25, 2002); and (2) as to the revocation of the designation of cultural heritage protection zones for protecting Do-designated cultural heritage, it cannot be deemed that the Plaintiffs’ right to seek the revocation of the designation of cultural heritage for personal reasons, even if any individual suffers or is likely to suffer disadvantage due to the designation disposition of cultural heritage protection zones, and thus, it cannot be deemed that the Plaintiffs’ right to seek the revocation of the instant administrative disposition cannot be objectively accepted.

2. Judgment on the grounds of appeal

A. While the purpose of the Act is to promote improvement in the cultural life of the people by preserving and utilizing cultural heritage and to contribute to the development of human culture, in order to reduce restrictions on the exercise of property rights in relation to the designation of cultural heritage protection zones, the Act imposes an obligation to examine whether the designation of protection zones is appropriate at a certain period of time (Article 8(2)), and delegate matters concerning the review to be determined by the Ordinance of the Ministry of Culture and Tourism, and when the designation of protection zones is inappropriate or there are other special reasons, the Act stipulates that the designation of protection zones should be cancelled or adjusted (Article 12(4)) and Article 3-2(1) of the Enforcement Rule of the Act by delegation of Article 8(3) of the Act shall consider the impact of the designation of protection zones on the exercise of property rights in addition to the preservation value of the relevant cultural heritage, and in light of the purpose of guaranteeing property rights of individuals under the Constitution, land owners, etc. in the protection zone of cultural heritage shall be deemed as having the right to request the cancellation of the designation of the protection zones.

Nevertheless, on the ground that the right to file an application for the cancellation of the designation of cultural heritage protection zone cannot be recognized on the ground that the response of this case rejecting the application does not constitute an administrative disposition subject to appeal litigation, or on the ground that there is a special change in circumstances, such as that the reason alleged by the plaintiffs after the designation of the protection zone was lost its value as cultural heritage, the court below erred in the misapprehension of legal principles as to the right to file an application under the law or sound reasoning seeking the cancellation of the designation of the protection zone of cultural heritage. The ground of appeal pointing this out 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.

Justices Park Jae- Jae (Presiding Justice)