[1] In a case where a person who designates an urban development zone pursuant to Article 3 of the former Urban Development Act prepares a new development plan to substantially modify the main part of the development plan, whether the original development plan becomes null and void (affirmative in principle)

[2] In a case where an urban development zone designation disposition was made based on a proposal that was made by a person who is not a legitimate proposing authority or that failed to meet the consent requirements for proposal, whether such disposition is unlawful (negative)

[1] Articles 4(1) and (2) and (3), 5(1), 8(1), and 9(1) of the former Urban Development Act (amended by Act No. 9862 of Dec. 29, 2009) / [2] Articles 3(1), 4, and 11(5) and (6) of the former Urban Development Act (amended by Act No. 9862 of Dec. 29, 2009)

[1] Supreme Court en banc Decision 2011Du6400 Decided March 22, 2012 (Gong2012Sang, 682)

Plaintiff (Law Firm LSS, Attorneys Lee Dong-chul et al., Counsel for the plaintiff-appellant)

Do Governor of Chungcheongnam-Nam (Attorney Song Chang-ju, Counsel for the defendant-appellant)

Daejeon High Court Decision 2009Nu2557, 2010Nu786 decided July 1, 2010

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

The grounds of appeal are examined.

1. As to the ground of appeal on the lawsuit seeking revocation because the designation of the instant urban development zone and the establishment of a development plan are not invalidated

A. Article 4(1), (2) and (3) of the former Urban Development Act (amended by Act No. 9862, Dec. 29, 2009; hereinafter “Act”) provides that a person who designates an urban development zone pursuant to Article 3 (hereinafter “person entitled to designate”) shall establish a development plan for the relevant urban development zone in order to designate an urban development zone and may modify a development plan directly or at the request of the implementer, etc. of the urban development project. Furthermore, in order to formulate a development plan for an urban development project by replotting method, a person who intends to revise a development plan for the replotting method shall obtain consent of at least 2/3 of the land area of the area to which replotting method applies and at least 1/2 of the total number of landowners of the area to which replotting method applies, and the same shall also apply to an amendment of a development plan for the implementation of replotting method: Provided, That the same shall not apply

In addition, Article 5(1) of the Act provides that matters to be included in development plans shall be specifically determined; Article 8(1) of the Act provides that when a designating authority intends to designate an urban development zone, it shall undergo deliberation by the Central Urban Planning Committee or the City/Do Urban Planning Committee, etc. after consulting with the head of the relevant administrative agency, and the same shall also apply to revisions, but the same shall not apply to revisions to minor matters prescribed by Presidential Decree. In addition, Article 9(1) of the Act provides that where an urban development zone is designated, the designating authority shall make a public announcement thereof

In light of the contents, form, purport, etc. of the relevant legal provisions, in cases where a designating authority formulates and publicly announces a new development plan to substantially modify the main parts of the development plan, unlike the case of modifying the original development plan, the original development plan shall become null and void (see, e.g., Supreme Court en banc Decision 2011Du6400, Mar. 22, 2012).

However, according to the records, the reason for modifying a development plan established by the instant development zone designation and the establishment of a development plan (hereinafter “the primary disposition of this case”) is an alteration, etc. of a development plan following the adjustment of infrastructure, such as the abolition of school sites, quasi-resident site plan, and park distribution plan by living zone, according to the opinions of the ASEAN-nam Office of Education. The specific details are as follows: (a) the entire school site is abolished; (b) the parking lot area is 4,920 square meters to 7,668 square meters (2,748 square meters); (c) the park area is 32,547 square meters from 32,510 square meters to 21,510 square meters (11,037 square meters reduction), and (d) the installation plan of major infrastructure is modified by the alteration of the land use plan of this case to 14,534 square meters from 46,473 square meters to 534 square meters (8,061 square meters); and (c) the land area of this case is 284 square meters or more.

In light of the aforementioned facts in light of the legal principles as seen earlier, it is reasonable to view that the second disposition of this case was a substantial modification of the main contents of the establishment of the development plan among the first disposition of this case. Thus, the establishment of the development plan among the first disposition of this case was modified to the second disposition of this case and lost its validity. Accordingly, the lawsuit seeking revocation of this part is unlawful as there is no legal interest in lawsuit.

In the same purport, the court below's rejection of the lawsuit seeking the revocation of the establishment part of the development plan among the first disposition of this case is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to whether the previous disposition becomes invalid due to the modification, etc.

B. However, since the amendment and effectiveness due to the second disposition of this case was made out of the development plan among the first disposition of this case, the court below erred in holding that the part of the first disposition of this case, other than the establishment of the development plan, was invalid due to the second disposition of this case, and that the part of the lawsuit seeking the revocation of this case is unlawful as there is no benefit of lawsuit.

However, the ground for revocation is merely based on the proposal for the designation of a development zone without the right to proposal or without meeting the consent requirements necessary for the proposal, and thus, it cannot be considered as the ground for revocation, or in light of the records, as it violated the procedures such as hearing residents' opinions, the claim should be dismissed. Thus, in this case where only the plaintiff appealed, it cannot be judged disadvantageous to the plaintiff in accordance with the principle of prohibition of disadvantageous alteration. Thus, the judgment of the court below which dismissed this part of the lawsuit shall be maintained.

2. As to the ground of appeal on the first disposition of this case, the remainder of the development planning, except for the development planning, is based on the proposal of a person who has no right to proposal, and

Article 3 (1) of the Act provides that when a planned urban development is deemed necessary, the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Do Governor, a Special Self-Governing Province Governor (hereinafter referred to as "Mayor/Do Governor") may designate an urban development zone, and Article 3 (4) of the Act provides that the head of a Si (excluding a Si in a large city)/Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply) may request the Mayor/Do Governor to designate

Meanwhile, Article 11(5) of the Act provides that a landowner, etc. in an urban development zone may propose the designation of an urban development zone to the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu, as prescribed by Presidential Decree, and Article 11(6) of the Act provides that a landowner, etc. shall obtain consent from a landowner (including superficies) equivalent to at least 2/3 of the area of the land in the urban development zone

In light of the contents and purport of the provisions of this Act, when a planned urban development is deemed necessary, a designating authority such as a Mayor/Do Governor may designate an urban development zone, and a proposal for designation of a development zone such as landowners is merely a mere urging of the designating authority to exercise the authority, not a procedure necessary for the designating an urban development zone by the designating authority. Therefore, even if a proposer who has proposed designation of an urban development zone is not a legitimate proposing authority or a landowner who has failed to obtain the consent of more than two-thirds of the area of the target area necessary for the proposal for designation of a development zone, the designation of an urban development zone based on the proposal cannot

In the same purport, the court below is just in rejecting the plaintiff's assertion that the part of the first disposition of this case except for the development planning is based on the proposal of the person without the right to proposal, and there is no error of law by misapprehending the legal principles as to Articles 3, 4, and 11 of the Act, as otherwise alleged in the ground of appeal.

In addition, the allegation in the grounds of appeal that the above disposition is illegal as it is based on a proposal that fails to meet the consent requirements necessary for the designation of development zones cannot be accepted for the same reason.

3. As to the ground of appeal on the violation of law such as failure to exhaust all necessary deliberations as to the legitimacy of the second disposition of this case

After finding facts as stated in its reasoning, the lower court determined that the second disposition of this case was valid as it was legally and publicly notified with the consent requirement under Article 4(3) of the Act.

In light of the records, the above judgment of the court below is just and acceptable, and there is no violation of law such as failing to exhaust all necessary deliberations as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed and the 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 Ko Young-han (Presiding Justice)