[1] The meaning of an urban or Gun management plan that can be legal fiction under Article 19(1)5 of the Housing Act when the person who has the right to approve the housing construction project plan approves the project plan

[2] The purport of the National Land Planning and Utilization Act stipulating that a topographical map shall be prepared and publicly announced after a decision on an urban or Gun management plan is publicly announced, and whether the basic content of an urban or Gun management plan and the approximate location and area of the urban or Gun management plan shall be determined and publicly announced (affirmative)

[1] Article 19(1)5 of the Housing Act; Article 2 subparag. 4, Article 30, and Article 51 of the National Land Planning and Utilization Act / [2] Articles 31(1), 32(1), (4), and (5) of the National Land Planning and Utilization Act; Article 8(2), (7), and (9) of the Framework Act on the Regulation of Land Use; Article 7(1) of the Enforcement Decree of the Framework Act on the Regulation of Land Use

[2] Supreme Court Decision 2014Du37122 Decided April 7, 2017 (Gong2017Sang, 980)

Plaintiff (Law Firm Gangnam-LLC, Attorneys Park Jong-Gyeong et al., Counsel for the plaintiff-appellant)

The astronomical Market

○○○○○○○ Housing Association and one other (Law Firm Staff, Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2017Nu14012 decided May 24, 2018

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. Case summary

According to the reasoning of the first instance judgment cited by the lower judgment and the records, the following circumstances are revealed.

A. On December 5, 2016, the Defendant issued a disposition to approve the housing construction project plan (hereinafter “instant project plan approval disposition”) pursuant to Article 15 of the Housing Act and Article 30 of the Enforcement Decree of the Housing Act regarding the construction of an apartment building of the ○○○○○○○○○○ District Housing Association, which was implemented in the area of 64,718 square meters per day, Dong-gu, Chungcheongnam-gu, Seoul ( Address 1 omitted) with respect to the Defendant joining the Defendant on December 5, 2016, and announced the same date (Article 2016-336 of the Notice in the Yananan City). However, the foregoing notice does not state “the urban management plan decision pursuant to Article 30 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) as one of the deemed matters according to the instant project plan. However, there was no separate topographic drawings related thereto.

B. On December 12, 2016, the Defendant issued a decision on an urban management plan (revision) and a publication of its topographic map (No. 2016-346 of the Yanan City’s Notification). The foregoing written notification states that the Defendant newly created a buffer green belt of a size of 4,615 square meters in total in size to secure traffic noise blocking and buffer spaces on the 3-6 line side of the Cheongdong-gu, Chungcheongnam-gu, Seoul Special Metropolitan City. The attached topographic map indicates that the Plaintiff’s land was incorporated into the said green belt site in the Yandong-gu, Seoul Special Metropolitan City ( Address 2 omitted) and 660 square meters (hereinafter “instant land”).

C. On March 10, 2017, the Plaintiff filed a lawsuit against the Defendant seeking revocation of “the part concerning the instant land” among the “Determination (Modification) of the astronomical Management Plan (amended) dated December 12, 2016” (hereinafter “decision of this case”).

2. The judgment of the court below

The lower court determined that the instant lawsuit was unlawful on the following grounds.

A. In the notice of the approval of the project plan of this case, the determination of an urban/Gun management plan is effective to include the land of this case as a buffer green site, which is an infrastructure, as prescribed by Article 19(1)5 of the Housing Act.

B. The decision of this case is merely an announcement of the contents of the decision of an urban/Gun management plan already deemed pursuant to the notice of the approval of the project plan of this case, and the defendant does not make the decision of this case separate from the notice of the approval of the project plan of this case, and the plaintiff is aware of the validity of the approval of the project plan of this case on the grounds of defects in the decision of this case, so

3. Judgment of the Supreme Court

A. First, we examine the Plaintiff’s assertion regarding the interpretation and application of Article 19(1)5 of the Housing Act.

In light of the language, content, structure, etc. of relevant provisions, such as Article 19(1)5 of the Housing Act, Articles 2 subparag. 4, 30, and 51 of the National Land Planning and Utilization Act, an urban or Gun management plan that can be handled by a person who has the right to approve a housing construction project plan pursuant to Article 19(1)5 of the Housing Act shall be deemed to refer to “plan for construction, maintenance, or improvement of infrastructure” (plan for construction, or improvement of infrastructure) under Article 2 subparag. 4(c) of the National Land Planning and Utilization Act and “district unit planning zone and district unit planning zone” under Article 51(1) of the National Land Planning and Utilization Act among the plans under Article 2 subparag. 4(e) of the same Act.

In the same purport, the judgment below which rejected the Plaintiff’s assertion that the content of incorporating the instant land into a buffer green site, which is an infrastructure, does not constitute an object of constructive authorization and permission under Article 19(1)5 of the Housing Act, is justifiable. In so doing, the judgment below did not err by misapprehending the legal principles on the interpretation and application of the requirements under Article 19(1)5 of the Housing Act.

B. We examine whether the instant decision can be subject to appeal litigation.

(1) According to the provisions of Articles 31(1), 32(1), (4), and (5) of the National Land Planning Act, Article 8(2), (7), and (9) of the Framework Act on the Regulation of Land Use, Article 7(1) of the Enforcement Decree of the Framework Act on the Regulation of Land Use, etc., where a decision on urban management planning is publicly announced, a drawing stating in detail the matters concerning urban/Gun management plans on the topographical map of a scale of 1/50 to 1,500 (the forest, control area, agricultural and fishery area, and natural environment conservation area in a green belt area may be at a scale of 1/3,00 or 1/1,500 (the forest, forest, agricultural and fishery area, and natural environment conservation area shall be at a scale of 1/6,000 through 1/6,000) shall be prepared

As can be seen, the purport of the National Land Planning Act stipulating that a topographical map shall be prepared and publicly announced after the determination of an urban or Gun management plan is publicly announced is to promote convenience in land use and ensure predictability and transparency in administration by clearly announcing the land subject to restrictions on land use by urban or Gun management plans and the details of restrictions on the use thereof (see Supreme Court Decision 2014Du37122, Apr. 7, 2017). As such, a topographical map performs the function of specifying the spatial scope on which the determination of an urban or Gun management plan is made, the basic contents of an urban or Gun management plan, and the approximate location and area thereof shall be determined and publicly announced in the determination of an urban

(2) We examine the above circumstances in accordance with the aforementioned statutes and related legal principles.

The public notice of the approval of the project plan of this case is only one of the matters deemed to be subject to the approval of the project plan of this case, and does not state the content of the approval of the project plan. Therefore, the public notice of the approval of the project plan of this case cannot be deemed an act of externally indicating the determination of the urban/Gun management plan with the content of newly creating a buffer green belt of a size of 4,615 square meters in size in the area of Cheongdong-gu, Chungcheongnam-gu, Seoul Special Metropolitan City.

On the other hand, the decision of this case, as an urban and Gun management plan decision, is written in detail that the buffer green belt with a size of 4,615 square meters is newly designated and created on the 3-6 Cheongdong-dong-dong, Dong-gu, Chungcheongnam-gu, Incheon Metropolitan City, and is also written in the topographical map attached thereto.

Thus, the decision of this case shall be deemed to be an administrative disposition subject to an administrative litigation, and it shall not be deemed to be a notification of simple concept informing the contents of the decision of an urban or Gun management plan already deemed in accordance with the approval of the project plan earlier.

Nevertheless, the lower court determined otherwise, that the Plaintiff did not recognize the disposition nature of the instant decision, and that the Plaintiff did not have any legal interest in dispute independently. In so determining, the lower court erred by misapprehending the legal doctrine on the subject of an appeal litigation.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)