Requirements to allow a “land category change” under the Cadastral Act for land subject to legal regulation on use or development activities, which bring about the change of use.

In full view of the contents and legislative purport of Article 3(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 36(1) of the National Land Planning and Utilization Act, Article 30 of the Enforcement Decree of the same Act, Article 4(1) of the Mountainous Districts Management Act, Article 4 and [Attachment 1] 10 of the Restitution of Development Gains Act, Article 25 of the Enforcement Rule of the Cadastral Act, and the meaning of “use of land” under Article 16(1)2 of the Enforcement Decree of the Cadastral Act, the land category change under the Cadastral Act, which is subject to regulation of use or development activities, is permitted only when the use of land is legally changed through permission for development activities or permission for conversion, etc. which make it possible (in principle, it does not require any physical change to the land itself), and the circumstance that the actual status of the land differs from that of the public register at any time does not affect the permission.

Article 16(1)2 of the former Enforcement Decree of the Cadastral Act (repealed by Article 2 of the Addenda to the Enforcement Decree of the Act on the Survey, Waterway Survey and Cadastral Records, Presidential Decree No. 21881, Dec. 14, 2009) (see Article 67(1)2 of the current Enforcement Decree of the Act on the Survey, Waterway Survey and Cadastral Records), Article 25 of the former Enforcement Rule of the Cadastral Act (repealed by Article 2 of the Addenda to the Enforcement Rule of the Act on the Survey, Waterway Survey and Cadastral Records, No. 191, Dec. 14, 2009) (see Article 84 of the current Enforcement Rule of the Act on the Survey

Plaintiff 1 and two others (Attorney Song Man-chul, Counsel for the plaintiff-appellant)

Head of Gun (Attorney Na Jae-ho, Counsel for defendant-appellant)

Gwangju High Court Decision 2007Nu2004 decided June 5, 2008

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

After finding facts as indicated in its holding, the lower court: (i) under the current legal system, the possibility of using and developing individual land is subject to the regulation of the Cadastral Act, such as the National Land Planning and Utilization Act, in addition to the regulation of land category registered on the public register as to the possibility of using and developing the land; (ii) comprehensively considering the relevant provisions of the above law, it is interpreted that the change of land category other than “building site” should take the procedure of permission for changing the form and quality of the land in advance; (iii) “use of the land” in Article 16(1)2 of the Enforcement Decree of the Cadastral Act does not mean the actual status of using the land, but rather means “use of the land within the specific use area,” “specific use district,” “use district,” “use district,” and “use district,” and “use of the land as legally permitted,” and (ii) if the Plaintiffs did not arbitrarily change the status of land use of the land to the extent that it does not allow the change of the land category and nature of the land to be subject to regulation under Article 16(1(2) of the Cadastral Act.

Examining the reasoning of the judgment below in light of the relevant Acts and subordinate statutes and the records, ① The land in this case is a development restriction zone under Article 3(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones, a natural green area under Article 36(1) of the National Land Planning and Utilization Act, a preserved mountainous district under Article 4(1) of the Enforcement Decree of the Management of Mountainous Districts Act, and a mountainous district under Article 4(1) of the Management of Mountainous Districts Act, and a development act such as conversion of land or alteration of form and quality shall be approved or permitted. ② Under the relevant provisions of the Restitution of Development Gains Act, a project implemented by permission for development activities and permission for mountainous district conversion under Article 56 of the National Land Planning and Utilization Act shall be defined as a project subject to development charges, and ③ Article 25(2) of the Enforcement Rule of the Cadastral Act shall not be accompanied by documents attesting that the land category of the land was not subject to regulation, such as permission for development activities, permission for diversion of land, or a change of land category between the former, field and orchard.

Therefore, the lower court’s conclusion that the Defendant’s disposition of this case was lawful is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the nature or requirements of land category change or by misapprehending the interpretation of Article 16 of the Enforcement Decree of the Cadastral Act and Article 25 of the Enforcement Rule of the Cadastral Act, or by

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)