[1] Whether the management and disposal plan lawfully authorized may be deemed unlawful solely on the ground that the land or structure is distributed to the applicants for parcelling-out and used in a balanced manner in consideration of the size, use status, environment, and other factors of the previous land or structure pursuant to Article 48 (2) 1 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (negative in principle)

[2] Whether the grounds that the pertinent law, which is the basis of an administrative disposition, is in violation of the Constitution before the Constitutional Court's decision on unconstitutionality, are grounds for the invalidation of the Constitution (negative in principle), and whether the retroactive effect of the decision on unconstitutionality on an administrative disposition, which became final and conclusive

[1] Article 48 (2) 1 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012) / [2] Article 19 of the Administrative Litigation Act

[2] Supreme Court Decision 2001Du3181 Decided November 8, 2002 (Gong2003Sang, 75) Supreme Court Decision 201Du16124 Decided November 15, 2012, Supreme Court Decision 2012Du17803 Decided October 31, 2013

Plaintiff (Attorney Kim Young-hun et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] GelfB Co., Ltd. (Attorneys Obong-seok et al., Counsel for defendant-appellee)

Seoul High Court Decision 2011Nu5478 decided August 26, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that the instant rules do not directly change the rights and obligations of the owners of land, etc. [referring to the persons provided for in Article 2 subparagraph 9 (a) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “Urban Improvement Act”); hereinafter the same shall apply] in the project zone without establishing a management and disposal plan, and thus, do not constitute a disposition subject to appeal.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the disposition

2. As to the grounds of appeal Nos. 2 and 6

Article 48(2)1 of the Urban Improvement Act provides that a site or structure shall be distributed and used in a balanced manner to applicants for parcelling-out, taking into comprehensive account the size, use status, environment, and other matters of the previous land or structure as one of the criteria for a management and disposal plan. However, an urban environment improvement project is implemented to improve an urban environment in an area requiring the efficient use of land, such as commercial areas and industrial areas, and the recovery of urban functions or the revitalization of business districts, such as urban areas and industrial areas, etc., and a large number of interests conflict with each other, so that the individual and specific interests of the owners of land, etc. cannot be satisfied. A management and disposal plan in an urban environment improvement project is prescribed by the Act that must be established in implementing the project, and there is no room for discretion regarding the recognition of the status, rights, and obligations of the owners of land, etc., but with regard to the establishment of the specific contents, considerable discretion shall be acknowledged by comprehensively taking into account the size, use status, and environment of the previous land or structure, so long as it is distributed and reasonably distributed to applicants for parcelling-out.

The lower court, citing the judgment of the first instance court, determined that even if the Defendant could not be allocated the sales of the first floor commercial building on the ground that the Plaintiff had sought, in light of each of the following circumstances, the contents of the instant management and disposal plan cannot be seen as violating Article 48 of the Urban Improvement Act or unfairly infringing the Plaintiff’s property right due to the reason that the content of the instant management and disposal plan was considerably unreasonable, even if the sales facilities were excluded from the sales facilities, excluding the commercial buildings located on the roadside, such as the

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on Article 23(3) of the Constitution

3. As to the third ground for appeal

The lower court, citing the first instance judgment, determined that the instant management and disposal plan cannot be deemed unlawful solely on the ground that the construction works were not selected, based on its stated reasoning.

Examining the reasoning of the judgment below in light of the relevant provisions and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on Article 46 (1) of the Act on the Maintenance

4. As to the fourth ground for appeal

If the Constitutional Court, after the issuance of an administrative disposition based on the law, decided that the law, which served as the basis of the administrative disposition, was unconstitutional, the above administrative disposition becomes identical with that of the law that was conducted without the basis of the law. However, in order to make the defective administrative disposition null and void as a matter of course, the defect must be serious, and it must be apparent. In general, the reason that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court renders a decision of unconstitutionality. Thus, the reason that the law, which is the basis of the administrative disposition, violates the Constitution before the Constitutional Court renders a decision of unconstitutionality, can only be the premise of a lawsuit seeking cancellation of the administrative disposition, unless there are special circumstances. Furthermore, it is reasonable to view that the issue of whether an administrative disposition based on the law, which is unconstitutional, is a matter separate from the retroactive effect of the decision of unconstitutionality. Rather, it cannot be said that the administrative disposition based on the law, which was unconstitutional, becomes null and void as a matter of course, and it does not affect the retroactive effect of the administrative disposition that has already occurred after the period of revocation.

In light of such legal principles, even if there was a decision of unconstitutionality as to the part of “as stipulated by the articles of association, etc.” in the case where the owner of a plot of land, etc. implements an urban environment improvement project pursuant to Article 8(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009), which is the basis of the provision after the approval for project implementation of this case, after the approval for project implementation of this case was issued (see Constitutional Court Order 2010Hun-Ba1, Apr. 24, 2012), the ground that such a violation of the Constitution can only be the premise of a lawsuit seeking cancellation of the approval for project implementation of this case, and it does not affect the retroactive effect of the decision of unconstitutionality as long as the period of a lawsuit seeking cancellation of the approval for project implementation of this case has become final and conclusive after the period of the revocation lawsuit against the approval for project implementation of this case.

Therefore, the lower court, which rejected the Plaintiff’s claim, did not err by misapprehending the legal doctrine on the Defendant’s project operator status due to the decision of unconstitutionality.

5. Ground of appeal No. 5

The lower court determined that the Plaintiff’s assertion that the owners of lands, etc. other than the Defendant are not the project implementer of the instant project, and thus, should receive development gains distributed as the project implementer

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the project operator under the Urban Improvement Act.

6. Conclusion

The appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)