In a case where an owner of land in an area designated as a “hyeong-si Tourism Complex” filed an application for revocation of the designation of a tourism complex on the grounds of illegality in the procedure for the designation of the tourism complex, etc., but the Do Governor rejected the application, the case holding that the refusal by the owner of the land in the aforementioned tourism

In a case where an owner of land in an area designated as a “hyeong Sightseeing Tourism Complex” filed an application for revocation of the designation of a tourism complex on the grounds of illegality in the procedure for the designation of a tourism complex, etc., but the Do Governor rejected the application, the case holding that the refusal by the Do Governor does not constitute an appeal litigation because the owner of the land in the area was not entitled to file an application for revocation of the designation of a tourism complex under the relevant statutes

Article 2(1)1 of the Administrative Litigation Act, Articles 52 and 54 of the Tourism Promotion Act

Plaintiff (Attorney Park Young-sik, Counsel for the plaintiff-appellant)

The Gangwon-do Governor

Yong Liart Co., Ltd. (Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)

October 29, 2009

1. The instant lawsuit shall be dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

On May 15, 2009, the Defendant revoked the application for revocation of the designation of a tourism complex with respect to the cemetery 7,031 square meters (hereinafter referred to as “instant land”) against the Plaintiff on the surface of Gangseo-gun, Seowon-gun, which was made against the Plaintiff on May 15, 200.

1. Basic facts

A. The Defendant’s designation and public notice of “the instant tourism complex” (hereinafter “instant tourism complex”)

○ Designation and Public Notice Date: February 21, 2001

○ Name of a tourist complex: a tourist complex for Pyeongtaek Pyeong-gu.

The location and area of ○ Tourism Complex: The Domsan-gun, Gangwon-do, Gangwon-do (the name of the administrative district was changed to the rental-type on September 1, 2007) and the area of the tourism complex: 17,189,420 square meters in the same Myeon.

The purpose of designating ○ Tourism Complex: Creation of an international tourism complex by attracting overseas investments and creation of a foundation for attracting international events by expanding the sports facilities in the Eastern area.

B. Change of the designated area and approval and announcement of the creation plan for the tourism complex of this case

○ Date of approval and public notice: approval on March 16, 2004, and public notice on March 20, 2004

○ Revised Designated Area: 17,179,09 square meters (reduction of 10,321 square meters due to an empty lane in which conversion was made at the time of the division and registration conversion of land incorporated into a tourism complex).

○ Area approved for a creation plan: 17,179,09 square meters;

○ Project Operator: Intervenor joining the Defendant (hereinafter referred to as “ Intervenor”);

○ Total Project Costs: KRW 109.5 billion 27 billion

○ Business Plan Period (Standard Year 2002): 1 Stage 2002 through 2005, 2 Stage 2006 and 2010, 3 Stage 201 and 2015

○ Major Facilities: Tourist hotel 40 rooms, family hotel 30 Dong 51 rooms, contact 95 Dong 1,952 rooms,

Ski ground 28 pages, ice-listed one, nine public golf courses, 36 holes of membership golf courses;

Ski Museum 1 Dong, Convention Center 1, Tearc 1, resort facilities, etc.

86,691 2,328 1 accommodation, 634,951 331,919 126 accommodation, 677,837,846 41 Dong recreational and recreational facilities, 1,639,732 9,386 4 other facilities 9,139,888- - Total 17,179,099 418,479 172 Dong 172,479

C. Current status of the instant land

The Plaintiff’s land, as a final mountain, is land category of forests and fields after changing the graveyard or current grave, and is included in the area designated as a tourism complex and the area approved for the creation plan of the instant tourism complex. According to the above creation plan, in the case of the instant land, the land is planned as the site for the skiing ground incidental facilities among the three-stage projects promoted from 2011 to 2015.

D. Plaintiff’s application for revocation of designation of a tourist complex and Defendant’s response thereto

(1) On May 7, 2009, the Plaintiff filed an application with the Defendant for revocation of the designation of a tourism complex in respect of the instant land (hereinafter “instant application”) by asserting that “The instant designation of a tourism complex was made without any notification to the Plaintiff, and is unlawful in the course of the procedure, as well as the development project was not commenced within two years from the date of the public notice of approval of the development plan, and thus became null and void pursuant to Article 56(2) of the Tourism Promotion Act.”

(2) On May 15, 2009, the Defendant sent a reply to the Plaintiff on the ground that “the designation of the instant tourism complex had gone through a lawful procedure, the development project is underway, and the intervenor, who is a project implementer, is expected to purchase the instant land at the time of establishing the three-stage project plan” (hereinafter “instant reply”).

[Reasons for Recognition] Facts without dispute, entry of Gap 1 through 3, 5, Eul 1 through 6, the result of on-site inspection by this court, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Defendant’s defense prior to the merits

With respect to the Plaintiff’s lawsuit that the Defendant’s refusal to revoke the designation of a tourism complex on the instant land owned by the Plaintiff is unlawful despite the fact that the Intervenor did not commence the business within two years from the date of the public notice on the approval of the instant tourism complex development plan and the designation of the tourism complex was invalidated, the Defendant cannot be deemed to have the right to file an application for revocation of the designation of a tourism complex with the Plaintiff, and the instant reply merely did not constitute an administrative disposition on the Plaintiff’s civil petition because it merely

B. Determination

(1) If an administrative agency’s refusal against a citizen’s application constitutes an administrative disposition that is subject to an appeal litigation, the filing of the application must be an exercise of public authority or an equivalent administrative action, and the refusal must cause any change in the applicant’s legal relationship, and the citizen’s refusal must have the right to file an appeal in accordance with laws and regulations or cooking demanding that the citizen act be conducted. If an administrative agency refuses to accept a citizen’s application without any ground for the right to file an appeal, that refusal does not affect the applicant’s right or legal interest, and it cannot be deemed an administrative disposition that is subject to an appeal litigation (see Supreme Court Decisions 200Du9229, Nov. 22, 2002; 2004Du1626, Apr. 15, 2005, etc.).

In addition, with respect to an administrative disposition that has become in dispute due to the lapse of the period for filing a lawsuit, the right to request a change of the administrative disposition shall not be deemed to have the right to seek a change of the administrative disposition unless there are special circumstances such as the provision of the right to request a change in the individual law or the recognition of such right in the interpretation of the relevant law (see Supreme Court Decision 2005Du1104, Apr. 26, 2007,

(2) According to the facts acknowledged earlier, the actual substance of the Plaintiff’s application in this case is to demand a change in the location and area of the tourism complex based on the disposition of designation of the tourism complex in this case and the approval of the formation plan of the tourism complex in this case, which has already been in conflict with

(A) However, according to the relevant laws and regulations as seen earlier, the Tourism Promotion Act, upon the application of the head of a Si/Gun/Gu, designates a tourism complex after consultation with the head of the relevant administrative agency, and the revocation or alteration of the designation of a tourism complex is also the same (Article 52), and the head of a Si/Gun/Gu having jurisdiction over a tourism complex shall obtain approval from the competent Mayor/Do Governor when preparing or amending a tourism complex plan, and shall consult with the head of the relevant administrative agency when a Mayor/Do Governor approves a development plan or intends to modify a plan (Article 54), and there is no provision that a landowner in a tourism complex may file an application for designation of a tourism complex or modification

(B) In addition, with respect to an administrative act requiring long-term and universality such as designation of a tourism complex and its creation plan, it is not possible to recognize the right to request a change on a daily basis to interested parties, such as land owners or local residents, etc. within a tourism complex on the ground that there is a change in circumstances after designation or creation plan of a tourism complex becomes final and conclusive (see, e.g., Supreme Court Decisions 94Nu8433, Dec. 9, 1994; 2003Du1311, Oct. 27, 2004; 2003Du1311, Oct. 27, 2004). If the disposition authority becomes unnecessary to continue the original disposition after the disposition or the need for public interest arises, it can be withdrawn or changed by a separate administrative act without any separate legal basis, but it does not grant the right to request such withdrawal or change to the disposition authority or the interested parties, etc. (see Supreme Court Decision 96Nu6219, Sept. 12, 1997).

(3) Therefore, even if the lawsuit in this case is unlawful [this case's right to demand alteration of the designation of the tourism complex in this case is recognized, Article 56 (2) of the Tourism Promotion Act provides that "if a project operator fails to commence a project within two years from the date on which the approval of the development plan was publicly notified, the approval of the development plan becomes void on the day after two years have elapsed from the date of the public notification of the approval of the development plan, and thereby does not provide that the designation of the tourism complex shall lose its effect. In addition, the determination of the commencement of the tourism complex development project shall be based on whether the project operator can be deemed to have actually commenced the construction in accordance with the contents of the development plan plan, and it shall not be based on the commencement of all land included in the project area. This case's tourism complex is operated in three consecutive stages under the development project plan. The premise that the project period in this case is scheduled to be a site for the skiing ground among the three-stage projects with 2011 to 2015, 200,0000,00 27,01.

3. Conclusion

Therefore, the instant lawsuit is dismissed, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Song-Gyeong (Presiding Judge)