Namyang-si (Law Firm Barun, Attorneys Na Young-young et al., Counsel for defendant-appellant)

Korea Rail Network Authority (Law Firm One, Attorney Kim Tae-tae, Counsel for defendant-appellant)

June 23, 2017

Seoul Administrative Court Decision 2016Gudan54261 decided December 30, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of KRW 145,98,700 for indemnity against the plaintiff on March 16, 2016.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for adding the following judgments to the matters asserted by the Plaintiff in the trial, and therefore, it is identical to the reasoning for the judgment of the first instance. Thus, this Court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

2. Additional matters to be determined;

The Plaintiff asserts that the Plaintiff’s possession of the instant land for the implementation of the instant project constitutes an occupation or use of public facilities under Article 65(4) of the National Land Planning and Utilization Act, and thus, the occupation or use fee is exempted. Thus, the instant disposition based on the Plaintiff’s possession of the instant land is unlawful.

Article 65 (3) of the National Land Planning and Utilization Act provides that "If a Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun intends to grant permission for development activities including matters concerning attribution of public facilities under paragraphs (1) and (2), he/she shall hear the opinion of the management agency to which the relevant public facilities belong in advance." Article 65 (4) of the National Land Planning and Utilization Act provides that "if a Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun has obtained permission for development activities after hearing the opinion of the management agency pursuant to paragraph (3), a person who has obtained permission for development activities shall be deemed to have obtained approval, permission,

Therefore, in order for the Plaintiff to conduct development activities including the matters concerning the reversion of public facilities under Article 65(1) of the National Land Planning and Utilization Act, the pertinent public facilities shall hear the opinion of the management agency to which the pertinent public facilities belong, and in the event that the Plaintiff obtained the permission for development activities after hearing the opinion of the management agency pursuant to Article 65(3), the development activities may be conducted by deeming that the Plaintiff obtained the approval, permission, etc. under the relevant Acts concerning the occupation and use of the public facilities included in the permission. The evidence alone submitted by the Plaintiff is insufficient to acknowledge that the Plaintiff performed the procedure under Article 65(3) and (4) of the National Land Planning and Utilization Act, and there is no other evidence to acknowledge it (the Plaintiff did not request the free reversion under Article 65(1) of the National Land Planning and Utilization Act at the time of consultation with the Defendant prior to the public announcement of the authorization of the instant project, or hearing the Defendant’s opinion on it. Rather, it is difficult to view the Plaintiff’s opinion on the premise that the Plaintiff refused the request for compensation.

3. Conclusion

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

Judges Kim Jong-hee (Presiding Judge)