Plaintiff (Law Firm A&C, Attorneys Seo-Gyeong et al., Counsel for the plaintiff-appellant)

Market for macro-market

Sub-dong Rental Housing Association (Attorney Ahn Byung-chul, Counsel for defendant-appellant)

August 25, 2015

1. The part of the instant lawsuit seeking approval of the rental housing construction project plan and revocation of the determination of the district unit planning zone shall be dismissed;

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

With respect to Defendant’s supplementary intervenors and Shee Construction Co., Ltd. (hereinafter referred to as “Shee Construction”), approval and disposition of a rental housing construction project plan, (district unit planning zone and planning) urban management plan (district unit planning zone and planning) as of August 25, 2014, and disposition of designation of a project implementer for urban planning facility projects and approval of an implementation plan on December 4, 2014 shall be revoked.

1. Details of the disposition;

A. The Defendant’s assistant intervenor is a rental housing association that obtained authorization from the Defendant on April 17, 2013 for the purpose of constructing and leasing housing.

B. On July 5, 2013, the Defendant’s Intervenor and the Shee Construction (hereinafter “Defendant’s Intervenor, etc.”) filed an application with the Defendant for approval on the rental housing construction plan, which requires the designation and decision of the district unit planning zone and district unit planning, on the land outside 186 and 52, Dong-ri, Dong-ri, Dong-ri, and the Defendant (hereinafter “instant rental housing construction project”).

C. The Defendant’s assistant intervenor acquired ownership of at least 90% of the housing site for the instant project (referring to the site that is constructed due to the instant project as a site corresponding to a residential site (multi-family) in the list of paragraph 3 of the same Article; hereinafter “instant housing site”) and filed an application for designation as a public project operator under Article 14 of the Rental Housing Act with respect to the instant project with respect to the Gyeongnam-do Governor, who was designated as a public project operator on June 18, 2014.

D. On August 13, 2014, the Defendant issued a disposition to approve the instant project plan to the Defendant’s Intervenor, etc. (hereinafter “instant project plan approval disposition”). On August 25, 2014, the Defendant publicly notified the instant project plan approval disposition under Article 273 of the macro-si Notice on August 25, 2014. The main contents of the notice are as follows.

본문내 포함된 표 3. 사업시행지의 위치·면적 및 건설주택의 규모 가. 사업위치: 거제시 일운면 소동리 186 외 52필지 (대지면적: 33,361㎡) 5. 다른 법률에 따른 인·허가 등의 의제사항 다. 국토의 계획 및 이용에 관한 법률(이하 ‘국토계획법’이라 한다) 제30조에 따른 도시·군관리계획결정 6. 주택법 제17조 제1항에 따라 고시가 의제되는 사항 가. 국토계획법 제30조에 따른 도시·군관리계획결정(변경) 거제(소동지구) 도시관리계획[지구단위계획구역 및 계획 결정(변경)] - 붙임 1 [붙임 1] 2. 지구단위계획구역 결정(변경)조서 ■ 지구단위계획구역 결정(변경) 조서 구분 구역명 위치 면적(㎡) 기정 변경 변경후 신설 소동지구 지구단위계획구역 거제시 일운면 소동리 186번지 일원 36,954 36,954 3. 지구단위계획 결정(변경)조서 가. 토지이용계획 결정(변경)조서 구분 면적 구성비(%) 계 36,954 100 주거용지(아파트) 33,361 90.28 공공시설용지(도로) 3,593 9.72 나. 기반시설의 배치와 규모에 관한 도시관리계획 결정(변경)조서 1) 교통시설 ■ 도로결정조서 구분 규모 기능 연장(m) 기점 종점 사용형태 비고 등급 류별 번호 폭원(m) 기정 소로 2 171 8 국지도로 181 중로 1-12 소로 1-36 일반도로 변경 중로 1 25 20 보조간선 도로 181 일반도로 폭원확장 ■ 변경 사유서 변경 전 도로명 변경 후 도로명 변경내용 변경사유 소로 2-171호선 중로 1-25호선 ○ 폭원확장 공동주택(아파트)계획 구역의 원활한 진·출입을 위한 도로 폭 확장 - 연장: 181m - 폭원: 20m(8m→20m) - 면적: 1,448㎡→3,593㎡

E. In the process of approving the instant project plan, the Defendant, based on the instant project plan’s approval disposition in accordance with Article 17(1)5 of the Housing Act, deemed that a consultation with the head of an urban division and a district unit planning zone and a district unit planning zone had been held, on the aggregate of 33,361 square meters of the instant housing construction site and 3,593 square meters of public facilities (road) (hereinafter “road site in this case”) and 36,954 square meters of a district unit planning zone and district unit planning (hereinafter “instant district unit planning”) were deemed to have been deemed to have been deemed to have been deemed to have been deemed to have been an agenda for the determination of district unit planning and district unit planning (hereinafter “instant district unit planning”) and the announcement of the determination thereof on September 25, 2014.

F. On December 4, 2014, the Defendant’s Intervenor, etc. issued an application for designation of the implementor of an urban or Gun planning facility project and an implementation plan authorization for the Defendant’s Intervenor, etc. on the following grounds: (a) on December 4, 2014, in order to construct roads, such as 1-25 lines and 1-12 lines during which the width has been expanded according to the instant district unit plan’s determination at his own expense; and (b) on December 4, 2014, the Defendant

G. The Plaintiff owned a lot number 293 square meters and a road of 120 square meters on the said (number 1 omitted). As seen above, the Plaintiff extended the 2-171 line to 1-25 lines among the small-ro 2-171 lines, and part of the land owned by the said Plaintiff was incorporated into a road by the construction of 1-12 line.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 7, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the part of the instant lawsuit seeking approval of the instant project plan and revocation of the instant district unit plan is legitimate

A. Determination on the part seeking revocation of the approval disposition of the instant business plan

1) The Defendant and the Defendant’s assistant intervenor asserted that a revocation suit against the approval disposition of the instant business plan was filed after the time limit for filing a lawsuit expires.

However, in cases where an administrative disposition is taken through a usual public notice, the other party to the disposition is an unspecified number of persons and the effect of the disposition is uniformly applied to many and unspecified persons, so it shall be deemed that the party to the disposition was aware of the fact that there was an administrative disposition on August 31, 2014, regardless of whether the party to the disposition was actually aware of the fact that the public notice was made (see Supreme Court Decision 2004Du619, Jun. 14, 2007, etc.). Since the defendant issued a disposition to approve the business plan of this case and announced it on August 25, 2014 pursuant to Article 6(3) of the Regulations on the Efficient Management of Administrative Affairs, the above public notice became effective on August 31, 2014, where five days have passed since the date of the public notice, and the plaintiff was aware of the fact that the business plan of this case was approved on August 31, 2014.

However, the Plaintiff’s filing of a lawsuit seeking revocation of the approval disposition of the instant business plan on December 17, 2014 after the lapse of 90 days from the filing date is apparent in the record. As such, the part seeking revocation of the approval disposition of the instant business plan is unlawful since it was filed after the filing period

2) On this issue, the Plaintiff asserts that: (a) the determination of an urban/Gun management plan pursuant to Articles 31(1) and 32(4) of the National Land Planning and Utilization Act takes place on the day when the topographical map was publicly announced; (b) the point at which the approval of the instant project plan takes effect is as of September 25, 2014 when the topographical map was publicly announced; and (c) the Defendant illegally failed to hear opinions from interested parties, such as the Plaintiff, etc., or residents, during the process of determining the instant district unit plan, and thus, the instant project plan approval disposition cannot be deemed as having become the Plaintiff’s disposition on the effective date of the public announcement; and (d) the

(1) However, the validity of the approval disposition of the instant project plan is merely a decision of an urban/Gun management plan, and it is difficult to view that the validity of the approval disposition of the instant project plan also takes effect pursuant to the aforementioned provisions. ② As seen below, the Defendant does not need to take separate procedures to hear opinions from residents as prescribed by relevant statutes, such as the National Land Planning and Utilization Act in the process of determining the instant district unit plan, and the Defendant should be deemed to have known that there was an administrative disposition on the date when the notice of the approval disposition of the instant project plan takes effect, regardless of whether the Plaintiff actually knew of the existence of the approval disposition of the instant project plan in accordance with the aforementioned legal principles. Thus,

B. Determination on the part seeking revocation of the instant district unit planning

ex officio, Article 17 (1) 5 of the Housing Act provides that when a person authorized to approve project plans approves a project plan pursuant to Article 16 of the Housing Act, matters consulted with the heads of relevant administrative agencies concerning the determination of district unit planning zones and district unit planning among urban and Gun management plans under Article 30 of the National Land Planning and Utilization Act shall be deemed to have received the relevant decision, and when approval of a project plan is publicly notified, it shall be deemed that a public announcement has been made

In light of these provisions, when the defendant intends to approve the instant project plan, he/she shall review and consult with the head of the relevant administrative agency whether the instant district unit planning decision conforms to the relevant provisions, such as the National Land Planning Act, and if such procedures are followed, it is naturally effective to determine the instant district unit planning in accordance with the aforementioned relevant laws and regulations, and it is not clear that the instant district unit planning decision, other than the instant project plan approval disposition, has been taken separately.

Therefore, in a dispute over the approval and disposition of the instant project plan, the Plaintiff may contest not only the grounds for the approval and disposition of the instant project plan itself, but also the grounds for the determination of the instant district unit plan, and it is not necessary to file a separate lawsuit (see Supreme Court Decision 99Du10988, Jan. 16, 2001). The part seeking revocation of the instant district unit plan is unlawful.

4. Determination on the legitimacy of the disposition, such as designation of the implementer of this case

A. The plaintiff's assertion

The approval disposition of the instant project plan and the decision of the instant district unit plan are unlawful due to the following defects, and thus, the designation, etc. of the implementer of the instant project shall be revoked as long as the preceding disposition becomes invalid retroactively.

1) According to Article 16(4)1 of the Housing Act, in the event that the Defendant’s assistant intervenor implements the instant project that requires the determination of the instant district unit plan jointly with Shee Construction, the Defendant’s assistant intervenor failed to secure at least 95/100 of the ownership of the land subject to the instant district unit plan (i.e., 33,361 square meters in the instant housing site + 3,593 square meters in the instant road site). However, even if the Defendant’s assertion is limited to the instant housing site subject to securing at least 95/100 of ownership, the Defendant’s assistant intervenor secured the ownership of the land equivalent to less than 95/100 of the instant housing site, which is less than 33,361 square meters in the instant housing site, and thus did not meet the requirements for approval of the housing unit plan under Article 16(4)1 of the Housing Act. Nevertheless, the Defendant still approved the instant project plan to the Defendant’s assistant intervenor.

2) Since the housing construction project plan and the district unit plan vary in purpose and scope, the scope of deemed scope should be deemed to be limited to the instant housing construction site even if the instant district unit plan is legal fiction pursuant to Article 17(1)5 of the Housing Act, the Defendant included the instant road site within the scope deemed to be limited to the instant housing construction site.

Therefore, as to the instant road site excluded from the agenda, the Defendant omitted such procedures as hearing the opinions of the Plaintiff, etc., who is the landowner, as prescribed by Articles 26(1), 28(1), 6(1)2, and 7(1) of the National Land Planning and Utilization Act.

B. Determination

1) Determination as to whether the requirements for securing ownership, etc. are satisfied

A) According to Article 16(4) of the Housing Act, a person who intends to obtain approval for a housing construction project plan shall, in principle, secure the entire ownership of the relevant housing construction site; however, in the case of a housing construction project requiring the determination of a district unit plan, including the cases deemed pursuant to Article 17(1)5 of the Housing Act, if a site is subject to a claim for sale under the Housing Act, a site that has not been secured by securing a right to use more than 80/100 of the relevant site area exceptionally, including the cases where a housing construction project requiring the determination of a district unit plan is exceptionally subject to a claim for sale under the Housing Act, the requirements for securing ownership are mitigated so that a housing association (excluding a housing remodeling association) that implements a project jointly with a registered project operator pursuant to Article 1

In addition, Article 10 (2) of the Housing Act provides that "where a housing association established pursuant to Article 32 (excluding a housing remodeling association that does not increase the number of households) constructs housing of its members, a project may be implemented jointly with a registered business operator (including a local government, the Korea Land and Housing Corporation, or a local government-invested public corporation), as prescribed by Presidential Decree. In such cases, a housing association and a registered business operator shall be deemed a joint business operator, and a housing association established pursuant to Article 32 of the former Housing Act (Amended by Act No. 13435, Jul. 24, 2015) refers to a regional housing association, workplace housing association, or housing remodeling association as provided for in Article 2 subparagraph 11

However, since a rental housing association established to build or purchase a house and lease it pursuant to Article 7 (1) of the Rental Housing Act, such as the Defendant’s Intervenor, does not fall under a housing association as provided for in Article 2 subparag. 11 of the Housing Act, the instant provision cannot be applied to obtaining approval for a housing construction project plan. Therefore, in principle, a rental housing association’s approval for a housing construction project plan should secure the ownership of the entire housing construction site or secure the right to use more than 80/100 of the relevant housing site area and claim for sale.

However, according to the relevant laws and regulations, such as Articles 3(1) and 14(1) of the Rental Housing Act and Article 12(3) of the Enforcement Decree of the Rental Housing Act, where a rental business operator purchases at least 9/10 of the area of land subject to business in order to construct rental houses with an exclusive use area of at least 85 square meters in excess of the number of units prescribed by Presidential Decree (including cases where he/she has obtained consent to purchase from a landowner), if there is a reason that it would be substantially difficult to implement the remaining land without acquiring the land, he/she may request the Mayor/Do Governor to designate a public project pursuant to subparagraph 5 of Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter “Land Compensation Act”), and if a rental business operator designated as a public project operator intends to obtain approval of a project plan pursuant to Article 16 of the Housing Act, he/she need not submit a certified copy of the register of land to be expropriated or used or a written consent to use, and the Housing Act applies to matters

B) The following circumstances are revealed in light of the provisions of the Rental Housing Act and the Enforcement Decree of the same Act and the related Acts and subordinate statutes, i.e., ① Article 14(1) of the Rental Housing Act intends to construct rental housing through expropriation or use in accordance with the Land Compensation Act for the remaining area in which a rental business operator has failed to secure ownership or right to use more than 90% of the area of land subject to business. This is contradictory to adding the requirements for securing ownership to the entire housing construction site provided for in Article 16(4) of the Housing Act. ② Article 14(1) of the Rental Housing Act provides that where a rental business operator has secured ownership or right to use more than 90% of the area of land subject to business, he/she shall secure the right to use more than 80% of the area of the relevant housing site as a matter of course to meet the exceptional requirements provided for in Article 16(4)1 of the Housing Act, and thus, Article 16(4)1 of the Housing Act provides that the Housing Act shall not be applied to a housing construction project plan.

C) Therefore, the Plaintiff’s assertion that Article 16(4)1 of the Housing Act shall apply to the approval of the instant project plan is without merit (as otherwise alleged by the Plaintiff, the Defendant’s Intervenor to obtain ownership under Article 16(4)1 of the Housing Act shall meet the requirements for the approval of the instant project plan, and the subject is also 36,954 square meters, including the instant housing construction site and road site (the Defendant and the Defendant’s Intervenor, who did not apply Article 16(4)1 of the Housing Act with the approval of the instant project plan, are not subject to Article 16(1) of the Rental Housing Act, and the subject is limited to the instant housing construction site. As such, the instant provision cannot be applied to the Defendant’s Intervenor, and the instant project plan requires the determination of the district unit plan, and thus, the Defendant’s Intervenor’s assertion that the portion of the instant project site is 90/100 or more of the size of 160/100 of the size of the relevant housing site is not secured by 360/130/60/6/360.

2) Determination as to whether there is a defect in the procedure, such as the scope of legal fiction of determination of district unit planning and the hearing of residents’ opinions

A) According to the relevant laws and regulations, such as whether the scope legally construed as the determination of the instant district unit plan is limited to the instant housing construction site, health zone, Articles 2 subparag. 10, 16(1), 17(1)5, and 30(1) of the Housing Act, Article 15(5)1 of the Enforcement Decree of the Housing Act, Article 9(2)1 of the Enforcement Decree of the Housing Act, Article 2 subparag. 13, 65, and 99 of the National Land Planning and Utilization Act, when a person authorized to approve a project plan approves a housing project plan, consultation with the head of the relevant administrative agency as to the determination of the district unit planning zone and district unit planning under Article 30 of the National Land Planning Act, the person who intends to implement the housing construction project shall be deemed to have obtained a public announcement under the National Land Planning Act, if necessary for the determination of the district unit plan along with the housing site, the person who intends to install new public facilities, infrastructure facilities, such as the site or public facilities to vest in the existing public facilities or public facilities.

① In light of such relevant provisions, a housing construction project plan cannot include matters concerning public facilities or arterial facilities necessary to function as a residence. Thus, a housing construction project is naturally responsible for the area where public facilities or arterial facilities are installed beyond the scope of a housing construction site. A person who intends to implement a housing construction project shall install all or part of public facilities or arterial facilities at his/her own expense and responsibility. ② Article 17 of the Housing Act provides that a person who intends to implement a housing construction project shall individually obtain authorization, permission, etc. from an administrative agency, when the procedures for authorization, permission, etc. are complicated, so the procedures for authorization, permission, etc. are complicated, and if an agreement with the head of the competent administrative agency is reached, the housing construction project plan shall be deemed to include various procedures for prompt processing of authorization, permission, etc. for a housing construction project at the time of approval of the housing construction project plan and shall be limited to the area which is beyond the scope of a housing construction project plan under Article 17(1)5 of the Housing Act, which shall be deemed to be directly related to the housing construction site plan.

However, in light of the following circumstances, i.e., the instant project plan included the instant road site, and the instant road site is connected to other roads adjacent to the instant housing construction site in order to expand the width for smooth access to the area of a multi-family housing planning zone; ② consultation was made in the course of consultation on the instant road construction site; ③ the area of the instant district unit planning plan was 36,954 square meters; and among them, the area of the instant housing construction site was 33,361 square meters, and the remaining 3,593 square meters was 9.72% of the instant road site, among which the area of the instant housing construction site was 33,361 square meters, and the remaining 3,593 square meters was 9.72% of the instant road site, it is reasonable to view that the instant road site constitutes an area directly related to the instant project plan as an area where public facilities or arterial facilities are installed.

B) In addition, in light of the legislative intent of Article 17 of the Housing Act for the efficient implementation of the project through procedural unification, so long as the person authorized to approve project plans has approved the project plan after consultation with the head of the relevant administrative agency pursuant to Article 17(3) of the Housing Act, permission, authorization, decision, approval, etc. under Article 17(1) of the Housing Act shall be deemed to have been granted, and it is not necessary to undergo procedures, such as hearing of opinions of residents as prescribed in Article 28 of the National Land Planning Act, etc. separate from the procedure (see Supreme Court Decision 92Nu162, Nov. 10, 192). Thus, it is not necessary to follow procedures separately prescribed in Article 28 of the National Land Planning Act with respect to the road site included in the scope of the instant

C) Therefore, the Plaintiff’s assertion to the effect that the instant road site does not include the instant site within the scope of deemed determination of the instant district unit planning, and the Plaintiff’s assertion to the effect that the procedures for hearing opinions of residents should be

5. Conclusion

Therefore, the part of the lawsuit of this case seeking approval of the business plan of this case and revocation of the district unit plan of this case is unlawful, and thus, the remaining claim of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)