[1] Whether construction is restricted to the land determined as a site for a public building, which is an urban planning facility, for purposes other than a public building under the Urban Planning Act (affirmative), and whether the prior decision of the housing construction project plan for the said land

[2] Whether an administrative agency’s prior determination of the housing construction project plan under the purpose of acquiring the land must be permitted only by granting permission for land transaction (negative)

[1] Article 4 (1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17 (1) of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Quality and Quality of Land cannot be permitted to construct buildings which are not urban planning facilities in question. Meanwhile, according to Article 2 (1) 3 and 1 (b) of the Urban Planning Act, public office buildings are listed as one of urban planning facilities. Thus, with respect to land to be designated and provided as a site for public office buildings due to the implementation of an urban planning project, building permission for housing shall not be allowed because the construction of buildings to be used for purposes other than public office buildings is limited on that ground, and therefore, prior determination of housing construction plan under Article 32-4 of the Housing Construction Promotion Act cannot be made on that premise.

[2] The Act on the Utilization and Management of the National Territory provides that permission for land transaction within a certain zone shall be granted only to an end-user by judging whether the purpose of the use of the land claimed by the acquisitor is appropriate in light of the current state of the area of the land, etc., and thus preventing speculative transactions in the land. Therefore, in the case of a transaction, the speculative purpose of which is not revealed in compliance with the standards for permission under the above Act, the administrative agency may not refuse the application for permission, but it does not necessarily require the administrative agency to grant prior

[1] Article 23 of the Constitution, Article 2 (1) 1 (b) and 3 of the Urban Planning Act, Article 4 (1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act, Article 17 (1) of the Regulations on Criteria, etc. for Permission, etc. for Change, etc. of Land Form and Quality of Land, Article 32-4 of the Housing Construction Promotion Act / [2] Article 21-3 and

[1] Supreme Court Decision 92Nu18924 delivered on September 28, 1993, Supreme Court Decision 94Nu1678 delivered on May 10, 1994 (Gong194Sang, 1719)

Samju Development Co., Ltd. (Attorney Yang Il-won, Counsel for the plaintiff-appellant)

Guri Market (Aju General Law Firm, Attorneys Effective-Gyeong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 96Gu31316 delivered on January 14, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17(1) of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Quality and Quality of Land, etc. is prohibited from permitting the construction of buildings which are not urban planning facilities, to the land determined as the site of urban planning facilities under the Urban Planning Act. Meanwhile, according to Article 2(1)3 and 1(b) of the Urban Planning Act, public office buildings are listed as one of urban planning facilities. Thus, with respect to the land designated as the site of urban planning facilities by the implementation of urban planning projects, building permission for housing cannot be allowed because the construction of buildings to be used for purposes other than public office buildings is limited on the ground (see Supreme Court Decision 94Nu1678 delivered on May 10, 1994). Accordingly, pre-determination of the housing construction project plan under the provisions of Article 32-4 of the Housing Construction Promotion

According to the reasoning of the judgment below, the court below held that it was legitimate for the defendant to refuse the plaintiff's prior application for the decision on the housing construction project of this case on the ground that about about about about 7,000 of about 7,000 of the land of this case was incorporated into a site for public use under the above urban planning according to the urban planning announced by the Guri-si as of June 14, 1995. The above decision of the court below is just, and there is no violation of the provisions of Article 23 of the Constitution of the Republic of Korea as to the guarantee of property rights, or misunderstanding of the legal principles as to deviation or abuse of discretionary power. The argument is without merit.

2. Regarding ground of appeal No. 2

The Act on the Utilization and Management of the National Territory provides that permission for land transactions within a certain zone shall be granted only to the actual users by judging whether the purpose of the use of the land claimed by the acquisitor is appropriate in light of the current state of the area of the land, etc., and to prevent speculative transactions in the land by granting permission for land acquisition only to the actual users. Therefore, in the case of a transaction that meets the standards for permission prescribed by the above Act and whose speculative purpose is not known, the administrative agency may not refuse the application for permission, but the administrative agency’

According to the reasoning of the judgment below, the court below held that even though the plaintiff filed an objection against the above disposition and the Land Use Examination Committee revoked non-permission on the ground that the land transaction permission was not finalized on the ground that the land was not finalized on the ground that the urban planning of the land in this case was not finalized on the ground that the plaintiff filed an objection against the above disposition and the land was not permitted on the ground that the land was not determined on the ground that the land in this case was impossible to implement the housing construction project for the land in this case, and therefore, the defendant's rejection of the application for prior decision of the plaintiff's housing construction project plan cannot be deemed to be contrary to the principle of good faith on the ground that the above decision is not consistent with the land transaction permission. The above decision of the court below is just,

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)