[1] The legal nature of the “disposition to permit the alteration of the current state of cultural heritage” under Articles 34 and 75 of the former Cultural Heritage Protection Act (i.e., discretionary act) and the limitation of additional clauses that can be attached to the disposition to permit the alteration of the current

[2] In a case where the Mayor of Busan Metropolitan City attached an additional note to the extension and reconstruction of the Youngdo to the 6th line from the Youngdo class, and designated the Youngdo class as the Busan Metropolitan City-designated cultural heritage after issuing a building permit for the 2nd line, and the Gap company obtained a permit for the alteration of the cultural heritage state to the head of the Busan Metropolitan City mid-gu Busan Metropolitan City for the removal of the Youngdo class, and the head of the Busan Metropolitan City made a disposition for the alteration of the current state with an additional note, such as “A company’s absence of the Youngdo class and the establishment of exhibition halls where related materials can be exhibited,” the case holding that the attachment of the above additional note while the permission for alteration was unlawful due to the deviation

[1] The permission for the alteration of the current state of cultural heritage under Articles 34 and 75 of the former Cultural Heritage Protection Act (wholly amended by Act No. 1000, Feb. 4, 2010) constitutes an administrative agency’s discretionary act. Unless there are explicit prohibition provisions in the relevant Acts and subordinate statutes, additional clauses may be attached to achieve administrative purposes even if there are no legal grounds. However, the contents of the additional clauses should be lawful and implement, and they should not be in violation of the principle of proportionality, the principle of equality, and the principle of prohibition of unfair decision-making, and should be within the extent that such administrative

[2] The case holding that in the case where the Busan Metropolitan City Mayor issued the permission to change the current state of cultural heritage with additional additional clauses to expand and reconstruction the Young Do party in the vicinity of the new site to the 6th line, and designated the Young Do party as the Busan Metropolitan City designated cultural heritage after the six years passed since the permission to construct the Do party was issued, and the company Gap obtained the permission to change the current state of cultural heritage from the head of Jung-gu Busan Metropolitan City, which was delegated with the right to permit the removal of Young Do party, and the head of the Gu in Busan Metropolitan City issued the permission to change the current state of cultural heritage with additional clauses (hereinafter "the additional clauses of this case") such as "the construction of exhibition hall where the company A is able to exhibit the absence and related materials of Young Do party," the additional clauses of this case violated Gap company's property rights without any reasonable reason, and it violates Gap company's duty not to build a building permit, which is an administrative act that becomes the main body, and it violates the principle of proportionality and equality.

[1] Articles 34 (see current Article 35), 75 (see current Article 74), and 75 (see current Article 74) of the former Cultural Heritage Protection Act (wholly amended by Act No. 1000, Feb. 4, 2010) / [2] Articles 34 subparagraph 3 (see current Article 35 (1) 1), 71 (1) (see current Article 70 (3)), and (3) (see current Article 70 (1)), 73 (1) (see current Article 72 (1)), 75 (see current Article 74), and 90 (1) (see current Article 12) of the former Cultural Heritage Protection Act (wholly amended by Act No. 1000, Feb. 4, 2010)

Lot shopping Co., Ltd. (Law Firm Rated, etc. and one other, Counsel for the plaintiff-appellant)

Head of Jung-gu Busan Metropolitan Government (Attorney Jung-soo et al., Counsel for defendant-appellant)

Busan District Court Decision 2010Guhap1904 Decided October 29, 2010

September 23, 2011

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On February 2, 2010, the part of the permission to change the designated cultural heritage permitted by the Defendant for the Plaintiff is revoked: “The establishment of a exhibition hall that can exhibit the absence and related materials of the Young Do as it is dismantled,” and the part of the permission to change the designated cultural heritage permitted by the Defendant on February 2, 2010, which read “the establishment of a exhibition hall and a exhibition hall shall be removed on the condition that the establishment of the exhibition hall and all accompanying expenses shall be borne by the lot, but the establishment of the exhibition hall and exhibition plan shall be

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

(a) Permission to construct a lot lot;

On December 11, 1999, the Plaintiff filed an application for a building permit with the head of Busan Metropolitan City Mayor in order to newly build the “Yesan 2 Lotk 3” on the land outside 20-1 and outside 109 parcels (hereinafter referred to as “Yeansan 2”). On November 11, 2000, the head of Busan Metropolitan City Mayor issued a building permit disposition (hereinafter referred to as “instant building permit”) on the condition that “the construction project to extend and re-construction the king-do 4-lane to the 6-lanes from the king-do 3-lane, in accordance with the traffic impact assessment and resolution” (hereinafter referred to as “the first vice”).

(b) Progress until the implementation plan for the new construction project is amended;

The Young River which connects Youngdo, which is the central road of Jung-gu in Busan, in which the construction site of the lotd World is located, is a bridge with the opening function completed on November 23, 1934, and the operation of the opening function was suspended on September 1, 1966, due to the waterworks management officer installed on September 1, 196, and the passage of vehicles was restricted at least 8t on December 1, 1986 due to the deterioration, and it was judged D (risk level) due to the overall corrosion and damage in the precise safety diagnosis conducted on February 25, 203, and the removal problem was discussed in full scale as it was designated as a disaster risk facility on March 25 of the same year.

On February 18, 2004, Busan Metropolitan City returned the proposal of the plaintiff to install a substitute bridge to the next side without dismantling the Young Do bridge, on the ground of the safety of the plaintiff, and around December 2004, the Busan Metropolitan City decided to expand and restore the original form, such as the opening function, by accepting the proposal presented by the citizen advisory committee related to Young Do Do Do - and utilizing the existing Do - and decided to expand and restore the original form, such as the opening function, by utilizing the existing Do -. On December 30, 204 and March 21, 2005, the plaintiff urged the plaintiff to perform the construction work of expanding and reconstruction the Young Do - according to the original viceline

After that, Busan Metropolitan City has dismantled the management policies of Youngdo schools and changed the construction of a new bridge close to its original form by using the existing absence to the maximum extent possible. On July 7, 2006, when revising the urban planning project (construction project) implementation plan, the Plaintiff added the following conditions. Accordingly, on June 8, 2007, the Plaintiff started the construction of a temporary temporary bridge and completed the construction on July 27, 2009.

Conditions related to the Young Do curriculum added to the modified authorization;

Since the Yeongdeungpo-do Do Expanding expansion plan is a consultation with the Local Cultural Heritage Committee, it shall reflect the results of the consultation, and it shall be implemented after consultation with the waterworks project headquarters on the relocation, etc. of the water supply center due to the removal and expansion of the Young-do Do Do Do Do Do Do Do Do Do Do Do Do Do Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun

(c) Process of deliberation by the subcommittee on the designation of cultural heritage and the subcommittee on cultural heritage;

On the other hand, on November 25, 2006, the head of Busan Metropolitan City designated the Youngdo as the designated cultural heritage of Busan Metropolitan City. Accordingly, on December 6, 2006, the Plaintiff applied for permission for alteration of the current state to the Defendant, who was delegated the right to permit alteration of the current state of cultural heritage by Busan Metropolitan City, with the right to permit alteration of the current state of cultural heritage, on the condition that “the installation of a six-wheel line meeting the opening capacity on both sides and the installation of a temporary bridge, and the reduction of the mechanical room following the construction of a coastal road,” and on December 18, 2006, the Defendant permitted the application on the condition that “the principle of restoration of the current state should be examined, and the plan for storage and utilization of existing materials should be organized and discussed by the subcommittee of cultural heritage”

Accordingly, the Busan Metropolitan City Subcommittee on Cultural Heritage was held seven times from January 29, 2007 to July 16, 2009, and the long-term exhibition hall construction was implemented in Busan Metropolitan City, and the plan to prepare and implement a short-term exhibition plan was implemented in the site until the exhibition hall is established.

D. Progress to the permission for alteration of the current state of this case

On August 25, 2009, the Plaintiff filed an application with the Defendant for permission for the first change of the current state with respect to the exhibition plan, etc. regarding the repair and restoration of the Young River, but the Defendant notified the Defendant of the application for re-application by supplementing the financial resources, etc. for the establishment of the exhibition hall on the ground that the Busan Metropolitan Cultural Heritage Committee has passed a resolution to postpone deliberation until it is presented with the means of sharing financial resources for the establishment of the exhibition hall on September 10,

Accordingly, on December 3, 2009, the Plaintiff filed an application for reconsideration of the budget bill for the establishment of the exhibition hall with approximately KRW 9 billion and the burden of financial resources to be borne separately by the Plaintiff, and on December 8, 2009, the Plaintiff first executed the exhibition hall construction cost in advance and presented a proposal for subsequent settlement. However, on December 11, 2009, the Defendant responded to the purport that it is difficult for the Plaintiff to accept it against the intention of the Cultural Heritage Committee, which was proposed by the Plaintiff on December 11, 2009, and returned it on January 5, 2010 and on January 8, 2010, on the ground that the supplementary materials were not submitted.

On January 26, 2010, the Plaintiff filed an application for re-deliberation for the change of the current state of cultural heritage again. On February 2, 2010, the Defendant: (a) attached the following sub-sections (hereinafter “instant sub-sections”) according to the results of the deliberation by the Busan Cultural Heritage Committee on February 2, 2010; and (b) granted permission for the change of the current state of cultural heritage (hereinafter “instant change of the current state”).

Contents of the Sub-Section of this case

It is required to establish a exhibition hall to exhibit the absence of a field belt and related materials because the field belt, which is cultural heritage, is dissipated, to dissolve the field belt on the condition that the establishment of the exhibition hall and all the expenses incidental thereto are borne by the lot belt, but to establish a plan for the establishment and exhibition of the exhibition hall before the dissolution of the field belt and undergo deliberation by the Cultural Heritage Committee

[Ground of Recognition] Unsatisfy, Gap evidence 1 to Gap evidence 10, Gap evidence 12 through 15, Eul evidence 2 to Eul evidence 5, Eul evidence 7 to Eul evidence 28, the purport of the whole pleadings and arguments.

2. Judgment on the main defense of this case

The Defendant asserts that, since the father of this case constitutes an essential element of the permission for alteration of the current state of this case, the instant lawsuit seeking revocation of the father of this case is unlawful.

In general, the father of this case is not subject to administrative litigation independently, but in the case of the father of this case, since this case constitutes a so-called "liability," which imposes an independent performance obligation separate from the permission for the alteration of the present state of this case, it can be subject to administrative litigation independently from the permission for the alteration of the present state of this case, as well as can be subject to revocation independently.

Therefore, the defendant's main defense is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

The subsidiary officer of this case, which caused the Plaintiff to bear the cost of the construction of the exhibition hall to be borne by Busan Metropolitan City, is ① an unreasonably associated subsidiary officer without any connection with the cause and purpose of the construction permit of this case, which is substantially deemed to be the administrative act of this case, ② a new addition is made as it was designated as a Si-doctrine cultural property after six years from the construction permit of this case, and it violates the principle of proportionality and the principle of equality in light of all the circumstances leading to the subsidiary officer of this case.

Therefore, this case’s assistant officer should be revoked because it is unlawful by abusing and abusing discretionary power.

B. Relevant statutes

This is the same as the corresponding part of the judgment of the first instance.

C. Determination

(1) The permission to change the current state of cultural heritage under Articles 34 and 75 of the former Cultural Heritage Protection Act (wholly amended by Act No. 1000, Feb. 4, 2010; hereinafter “Cultural Heritage Protection Act”) falls under the discretionary act of an administrative agency, and even if there are no grounds under the relevant Act and subordinate statutes in such discretionary act, unless there are explicit prohibitions under the relevant Acts and subordinate statutes, additional clauses may be attached in order to achieve administrative objectives. However, the contents of such additional clauses should be lawful and implement, and they should not be in violation of the principle of proportionality and the principle of proportionality, the principle of prohibition of unfair decision-making, and should be within the extent that the intrinsic effect of administrative

(2) In light of the above legal principles, we examine the legitimacy of the father of the instant case.

First of all, according to Articles 73(1) and 90(1) of the Cultural Heritage Protection Act, expenses incurred in the preservation of cultural heritage of the city shall be borne by the local government concerned: Provided, That where cultural heritage is likely to be damaged due to construction works or where it is necessary to protect the landscape of the surrounding cultural heritage, the implementer of the construction works is obligated to take necessary measures, and in this case, the expenses incurred in taking the measures shall be borne by the implementer

However, the first vice officer added at the time of the instant construction permit was merely to implement construction to extend the field 6 line to the field 6 line. Since it was inevitable for Busan Metropolitan City to dismantle the field Do Do Do Do Gun Gun Gun Gun Gun Gun Gun Gun Gun due to the deterioration of the field Do Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun , the Plaintiff was additionally obligated to dismantle and restore the field Do Gun Gun Gun Gun Gun Gun Gun , and the fact that it was designated as the field Do Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun was the main reason for the deterioration of the field Do Do Gun Gun Gun Gun Gun Gun , and it was before the field Do Do Gun was designated as cultural property at the time of the instant construction permit. Accordingly, expenses incurred in the preservation of the field Do Do Gun Gun Gun Gun Gun Gun.

(3) Also, in light of the overall purport of the oral argument as to the above facts, ① the first vice officer extended to the sixth line from the Young River to the 6th line in order to resolve traffic problems, but, in fact, the function of the bridge was deteriorated to the extent that the Young River would be designated as a disaster risk facility, the Busan Metropolitan City would collect citizens’ opinions and make a decision to construct the new bridge after demolishing the Young River, and the Plaintiff would demand the Plaintiff to construct the new bridge after dismantling the Young River. The Plaintiff also accepted the demand of the Busan Metropolitan City even though the construction cost increases, and the Plaintiff also received the demand for the construction of the new bridge. In addition, the wind that the Busan Metropolitan City designates the Young River as a Si-do Cultural Heritage. In addition, the Plaintiff would be obliged to obtain permission for the alteration of the current state of cultural heritage in order to remove the Young River, and the Plaintiff would be obliged to additionally bear the necessary expenses for the alteration of the present state with the construction permit added to the construction permit of the previous Young River to the construction permit of the Go River to the extent of restoringing the cultural heritage.

(4) Accordingly, the instant subsidiary officer violated the Plaintiff’s property right without reasonable grounds in that it first, after six years from the construction permit of this case, was designated as a Si cultural property by Young Do school, which had already performed the functions of the bridge, and second, the administrative act that became the body in the formal sense is the permission for the alteration of the current state of this case, but in a substantial sense, the instant construction permit and the instant construction permit impose ex post facto the duty of exhibition officers not related to the purpose and cause of the removal due to the deterioration of the Young Do road and the designation of cultural property. In a substantial sense, the instant subsidiary officer violated the principle of prohibition of post-control and unfair decision-making, and third, the Plaintiff’s burden related to the construction of the bridge in relation to the construction of the bridge in this case is against the principle of proportionality and the principle of proportionality that the Plaintiff is obliged to bear the cost of construction of the bridge in accordance with the principle of proportionality and the principle of equal construction of the Busan Metropolitan City.

(5) Therefore, the instant subsidiary officer’s violation of the principle of prohibition of unfair decision-making, the principle of prohibition of post-control, the principle of proportionality, and the principle of equality, and thus, is unlawful by deviating from and abusing discretionary power, and the Plaintiff’s major business in Busan Metropolitan City bears certain social responsibilities and obligations as a large enterprise that mainly engages in business in Busan Metropolitan City.

4. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the vice-office of this case is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.

Judges Kim Shin (Presiding Judge)

1) In the last subcommittee, the plaintiff who newly constructed a scam was asked to bear more costs than the construction of the exhibition hall, and the committee for cultural heritage in order to deliberate on the permission for the alteration of the present state demands a detailed plan for the expenses for the construction of the exhibition hall, the defendant would be able to persuade the plaintiff on the basis of the deliberation that the plaintiff bears the expenses for the construction of the exhibition hall.

2) The Plaintiff’s assertion relating to the principle of protection of trust cannot be accepted in that there was no public opinion statement.

Note 3) The construction cost claimed by the Plaintiff as a result of its increase is KRW 31 billion.

4) Additional construction cost claimed by the Plaintiff is KRW 60 billion.

5) Although the Defendant asserted that the Plaintiff accepted the father of the instant case, it is insufficient to recognize the Plaintiff’s acceptance only with the entries of No. 33-13 of the evidence, and there is no other evidence to acknowledge it.