The case holding that a decision made on an urban surrounding park, which is drawn up by the Metropolitan City Mayor without the drafting and application of the head of Si/Gun, shall be null and void.

The case holding that, in light of the legislative purpose of the Urban Planning Act (see Article 1), the principle of due process requested to ensure fairness, transparency, and reliability of administration, and to guarantee the rights and interests of the people, in principle, the expenses for urban planning and urban planning projects of local governments are to be borne by the local government concerned in principle [Article 62 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), etc., the procedure for drafting urban planning and the request of the person holding the right to draft an urban planning decision on the person holding the right to draft an urban planning shall be deemed to be an important and essential condition for the determination of urban planning, on the ground that the Metropolitan City Mayor's disposition of urban neighboring park, which was formulated by him without the formulation and application of the head of Si/Gun, to which the person holding the right to draft the urban planning belongs, is inconsistent

[1] Article 10 of the Local Autonomy Act, Article 8 [Attachment 1] 4 of the Enforcement Decree of the Local Autonomy Act, Article 4(2) of the Addenda to the Act on the Establishment of 9 Autonomous Gus in Gwangjin-gu, Seoul and the Change of Jurisdiction between Special Metropolitan Cities and Metropolitan Cities (amended by Act No. 6243 of Dec. 22, 1994), Articles 1, 10(1) (see current Article 98), 10-2(1) (see current Article 18), 11(1) (see current Article 19), 12(1) (see current Article 24), 62 (see current Article 73), the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891 of Jul. 1, 200)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Sido Joint Island Co., Ltd. (Attorney Park Gyeong-gu, Counsel for the plaintiff-appellant)

Busan Metropolitan City Mayor (Attorney Seo-jin, Counsel for the defendant-appellant)

1. Of the urban planning decisions made by the Defendant on August 6, 1997 by the Busan Metropolitan City Notice No. 1997-197, the determination of the 1 forest land of 3,031,000 square meters in Busan Metropolitan City, the Busan Metropolitan City shall be confirmed to be null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

(a)The plane captain, head-Eup, head-Eup, head-Eup, iron-Myeon, day-to-day and articles of incorporation in Yangsan-gun of Busan Metropolitan City were transferred to Busan Metropolitan City on March 1, 1995 and transferred to Busan Metropolitan City on March 1, 1995 in accordance with the Gwangjin-gu Seoul Special Metropolitan City and the Act on the Establishment of 9 Autonomous Gus and the Change, etc. in Jurisdiction between Special Metropolitan Cities and Metropolitan Cities (No. 4802 of December 22, 199

B. The Minister of Construction and Transportation, upon the reorganization of the administrative district as of March 1, 1995 under the above Act, adjusted the national land utilization plan by administrative district and decided and announced as the Ministry of Construction and Transportation Notice No. 1995-104 of the Ministry of Construction and Transportation as of April 3, 1995. As of March 13, 1996, the defendant decided to revise the Busan Urban Planning Zone by the announcement No. 60 of Busan Metropolitan City as to the urban planning district incorporated into Busan Metropolitan City, including the captain-gun as of March 13, 1996, and established a basic urban planning to reorganize the urban infrastructure, such as roads, water supply and drainage plans, etc. including the urban surrounding park development plan, and obtain conditional approval from the Minister of Construction and Transportation on December 18, 1996.

C.On the other hand, the defendant, along with the procedure of the formulation of the Busan Metropolitan City basic urban planning, held a resident explanatory meeting on August 19, 196 on the plan for the captain-Gun urban planning on December 9, 1996,

(d)The plaintiff shall own 33,620 m20 m2,620 m2,00 m2,000 Busan-gun, Busan-gun, Busan-gun, where urban planning is located within an area determined and publicly announced as a Dobong Green Park.

[Certificate] Evidence Nos. 1-1, 2, 2-1, 2-2, 3-1, 2-2, 3-2, 2-2, 3-2, 2- Eul, 3-4, 5-1, 2, 6-2, 7-1, 2, 3, 8-2, 9-1, 9-2, 12, 13, 13-2, 13

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful because it was made in accordance with the relevant laws and regulations, and the plaintiff did not have the authority to formulate a plan for the plane captain's urban planning. Accordingly, the disposition of this case is null and void because it has a significant and obvious defect in the procedure for the determination of the urban planning, and even if not, it did not properly balance the public and private interests, as well as the public and private interests in the execution of the disposition of this case. In addition, the disposition of this case is inappropriate in terms of location, and the park plan is overlaps with the planning without cost, and it does not meet the requirements, such as the residents' economic burden such as the cost of public interest and development due to the development of the park, the environmental destruction due to the development of the park, and the environmental pollution due to the development of the park, etc., and thus, the disposition of this case loses legitimacy and objectivity.

B. Relevant statutes

(1) Concept of urban planning

○ former Urban Planning Act (amended by Act No. 5898 of Feb. 8, 1999; hereinafter the same shall apply)

Article 2 (Definitions) (1) The definitions of terms used in this Act shall be as follows:

(s) Musbal subparagraph is omitted.

1.The term "urban planning" means the following plans on the land use, transportation, sanitation, environment, industry, security, national defense, welfare, culture, etc. for the promotion of public peace and order and public welfare in urban planning zones:

(a)the plan on the designation or alteration of the urban planning zone and the area, district and zone under the provisions of Section B of Chapter II (Articles 17 through 22);

(b)Plans for the installation, maintenance, and improvement of roads, squares, squares, parking lots, automobile depots, tracks, tracks, cableways, rivers, canals, harbors, green areas, parks, playgrounds, amusement parks, observation towers, public vacant land, public office buildings, schools, libraries, libraries, markets, water supply facilities, sewerage, utility tunnels, slaughter rooms, cemeteries, cemeteries, crematoriums, crematoriums, water pollution prevention facilities, electricity supply facilities, reservoirs, gas supply facilities, oil storage facilities, oil supply facilities, oil supply facilities, oil distribution facilities, waterproof facilities, waterproof facilities, fire-control facilities, fire-control facilities, fire-control facilities, and other facilities prescribed by Presidential Decree;

(c) A plan on a land readjustment project, a group of housing site creation projects, an urban district creation project, a group of industrial site preparation projects, or a redevelopment project;

(2) Allocation of affairs between the Metropolitan City and the Gun under the jurisdiction of the Metropolitan City.

○ former Local Autonomy Act (amended by Act No. 5893 of Feb. 8, 1999; hereinafter the same shall apply)

Article 10 (Standards for Allocation of Affairs by Type of Local Government) (1) The standards for allocation of affairs of local governments to each type of local government under the provisions of Article 9 shall be as follows: Provided, That the affairs under Article 9 (2) 1 shall be common to each local government:

1. A City/Do:

(a) Large-area administrative affairs, the results of which affect two or more Sis/Guns/autonomous Gus;

(b) Affairs of the nature to be handled in accordance with the same standard for each City/Do;

(c) Affairs which need to maintain uniformity within a City/Do unit with local characteristics kept intact;

(d) Affairs concerning liaison, coordination, etc. between the State and Sis/Guns/autonomous Gus;

(e) Affairs inappropriate for independent management by a Si/Gun/autonomous Gu;

(f)any affairs concerning the installation and management of facilities whose size is considered reasonable for joint installation by two or more Sis/Guns/autonomous Gus;

2. Si/Gun/autonomous Gu:

Affairs other than those to be managed by a City/Do under subparagraph 1: Provided, That a Si with a population of at least 500,00 may be allowed to directly handle part of the affairs managed by the Do.

(2) Affairs by type of local government under the standards for distribution under paragraph (1) shall be prescribed by Presidential Decree.

(3) The City/Do and the Si/Gun/autonomous Gu shall not conflict with one another in the course of managing such affairs. If such affairs conflict with another, the Si/Gun/autonomous Gu shall have priority in managing such affairs.

○ Enforcement Decree of the Local Autonomy Act

Examples of affairs by type of local government under the provisions of Article 10 (2) of the Act shall be as shown in Table 1 attached hereto: Provided, That if other Acts and subordinate statutes prescribe otherwise, this shall not apply.

[Attachment 1] Affairs by Local Governments

4. Business affairs of Si/Gun/Gu, 4. Business affairs of Si/Gun/Gu, which are included in the main text; 4. Business affairs of Si/Gun/Gu, 4. Business affairs of Si/Gun/Gu, 4. Business affairs of Si/Gun/Gu, excluding the case of Do) formulation of basic urban planning planning (excluding the case of Do), 2) formulation (excluding the case of Do) formulation (excluding the case of Do) formulation (4) formulation (excluding the case of Do), formulation (5) formulation (excluding the case of Do) of urban planning area, 4) basic urban planning area formulation (excluding the case of Do) formulation (excluding the case of Do) basic urban planning area, 5) basic urban planning area formulation (excluding the case of autonomous Gu) basic urban planning area(excluding the case of Do) planning area(excluding the case of autonomous Gu) planning area(excluding the case of autonomous Gu) formulation (5) basic urban planning project(excluding the case of autonomous Gu), implementation of urban planning project(excluding the case of urban planning project), maintenance project (excluding the case of autonomous Gu).

○ The Act on the Establishment of nine Autonomous Gus in Gwangjin-gu, Seoul and the Alteration of Jurisdiction between Special Metropolitan Cities

Article 4 (Relationship to other Acts and subordinate statutes) (1), (3), (4), (5), (6) Omitted.

(2) In case where the matters overlap with other matters under the authority and jurisdiction of the head of Si/Gun in Acts and subordinate statutes at the time this Act enters into force, those areas in the Metropolitan City, shall be under the authority and jurisdiction of the Metropolitan City Mayor, and Gun/Ku, in case of Gun areas under the Metropolitan

(iii)the urban planning planning authority, the decision-making authority, the urban planning decision-making process and the urban planning project owner;

○○ Urban Planning Act

Article 10-2 (Establishment of Basic Urban Planning) (1) The head of Si/Gun having jurisdiction over the urban planning zones as prescribed by the Presidential Decree, such as the Seoul Special Metropolitan City, Metropolitan Cities and Metropolitan Cities, shall establish a basic urban planning which is a guideline for the direction of long-term urban development and the formulation of urban planning, and obtain the approval of the Minister of Construction

(2) When the Minister of Construction and Transportation intends to approve the basic urban planning under paragraph (1), he shall hear in advance the opinions of the relevant local council (excluding a case where the head of Si/Gun makes an application after hearing in advance the opinions of the relevant local council) and hold a consultation with the heads of relevant central administrative agencies,

(3) The Minister of Construction and Transportation shall, when he approves a basic urban planning under paragraph (1), send it to the head of Si/Gun, and the head of Si/Gun shall, without delay, announce it and have

(4) The head of Si/Gun shall examine the appropriateness of the basic urban planning approved by the Minister of Construction and Transportation under paragraph (1) every 5 years and reflect it in the basic urban planning.

(5) Matters necessary for formulating a basic urban planning shall be prescribed by Presidential Decree.

Article 11 (Drafting of Urban Planning) (1) The head of Si/Gun shall draw up an urban planning to be implemented within the urban planning zone under his jurisdiction in conformity with the contents of the basic urban planning as prescribed in Article 10-2 (1): Provided, That in a case related to the State plan, the Minister of Construction and Transportation may draw up it by himself, after hearing the opinion of the head of Si/Gun, ex officio

(2) In a case where the Si/Gun or the Si/Gun/Gu administrative districts extending over the administrative districts of two or more Sis/Guns, the person to jointly draw up or draw up the urban planning, shall be determined by the consultation of

(3) Where the Minister of Construction and Transportation or the Mayor/Do governor fails to reach an agreement pursuant to the provisions of paragraph (2), he shall designate and publicly announce a person to be drafted according to the following classification: Provided, That in the case of subparagraph 2, he shall consult with

1. In the case where the subject area is located within the administrative districts of the same Do (including the Seoul Special Metropolitan City and Metropolitan Cities; hereinafter in this paragraph the same shall apply): the competent Mayor/Do Governor; and

2. The case where the target area extends over the administrative districts of not less than two Dos: the Minister of Construction and Transportation.

Article 12 (Determination of Urban Planning) (1) The Minister of Construction and Transportation shall hear the opinion of the local council concerned on the matters prescribed by the Presidential Decree, ex officio or at the request of a developer of urban planning under Article 11 (excluding the case where the applicant applies in advance after hearing the opinion of the local council concerned), and make a decision after going through a resolution of the Central Urban Planning Committee. The same shall also apply to the case where he alters the

(2) through (4) omitted.

Article 16-2 (Hearing of Opinions of Residents, etc.) (1) When the head of Si/Gun intends to formulate a basic urban planning under Article 10-2, he shall hold a public hearing to hear the opinions of residents, relevant experts, etc., and when such opinions are deemed reasonable, he shall reflect them in the formulation of

(2) When the head of Si/Gun intends to draft an urban planning under Article 11, he shall hear the opinions of the residents, and when he deems such opinions reasonable, he shall reflect them in formulating the urban planning: Provided, That this shall not apply to matters which require confidentiality for the national defense or insignificant matters

(3) Matters necessary for holding public hearings and hearing opinions of residents shall be determined by Municipal Ordinance of the local government concerned according to standards prescribed by Presidential Decree.

Except as otherwise provided in this Act or other Acts and subordinate statutes, the expenses for urban planning and urban planning projects shall be, in principle, borne by the National Treasury in case the State is implemented by the State, by the head of the local government concerned in case the local government is implemented by him, and by a person other than the administrative agency

(d)Delegation of authority under the Urban Planning Act;

○○ Urban Planning Act

Article 10 (Delegation of Authority) (1) Part of the authority of the Minister of Construction and Transportation under this Act may be delegated to the Mayor of Seoul Special Metropolitan City, Metropolitan City, or Do (hereinafter referred to as the "Mayor/Do Governor") as prescribed by the Presidential Decree, and the Mayor/Do governor may re-entrust the delegated authority to the head of the Si (excluding the Seoul Special Metropolitan City Mayor and Metropolitan City Mayor)/Gun/Gu (limited to the head of autonomous Gu

(2) In case where the authority under the provisions of paragraph (1) is delegated, on the matters to be deliberated by the Central Urban Planning Committee under the provisions of Article 68 from among the delegated matters, it shall go through a resolution of the Local Urban Planning Committee, the Si Urban Planning Committee or the

Enforcement Decree of the Gu Urban Planning Act

Article 6 (Delegation of Authority) (1) The Minister of Construction and Transportation shall delegate the authority (excluding the authority with respect to redevelopment projects) falling under each of the following subparagraphs to the Special Metropolitan City Mayor, Metropolitan City Mayor or Do Governor (hereinafter referred to as the "Mayor/Do Governor") pursuant to Article 10 (1)

1. Determination and modified determination of the urban planning zones as prescribed in Article 2 (1) 1 (a) of the Act; and

2. Determination and modified determination of the urban planning concerning the installation, maintenance and improvement of the urban planning facilities as prescribed in Articles 2(1)1(b) and 2(b) of the Act;

3. Determination and alteration of the urban planning concerning the projects as referred to in Article 2 (1) 1 (c) of the Act (excluding a group of projects to create industrial sites related to the State plan);

4. Modification on insignificant matters of the urban planning as prescribed in the proviso of Article 12 (1) of the Act;

Omission of subparagraphs 5 through 15

(2) Notwithstanding the provisions of paragraph (1), the following authority shall not be delegated to the Mayor/Do Governor:

1. Determination and modified determination of the urban planning directly drafted by the Minister of Construction and Transportation under the proviso of Article 11 (1) of the Act;

heading 2 and 3 omitted

(c) Markets:

(1) The authority to draft and determine the Gun urban planning under the jurisdiction of the Metropolitan City;

Comprehensively taking account of the provisions of the above relevant laws and regulations, the following provisions can be arranged.

First, the right to establish the basic urban planning has only the right to approve the basic urban planning formulated by the Special Metropolitan City Mayor, the Metropolitan City Mayor, and the head of Si/Gun, and the Minister of Construction and Transportation has only the right to establish the basic urban planning belonging to the Metropolitan City, and the head of the relevant Gun is not the Metropolitan City Mayor, not the right to establish the basic urban planning belonging to the Metropolitan City (Article 10 of the Local Autonomy Act, Article 8 [Attachment 1] 4-C. Article 4 of the Enforcement Decree of the Local Autonomy Act, Article 4

Second, the right to draft urban planning based on the basic urban planning has in principle the head of the Si/Gun, but the head of the Gun is not a Metropolitan City Mayor, but the head of the Gun has the right to draft plans exceptionally related to the State plan. The Minister of Construction and Transportation has the right to draft urban planning. In principle, when the Minister of Construction and Transportation makes a decision on urban planning, he shall apply to the Minister of Construction and Transportation under Article 11 of the Urban Planning Act. However, when the Minister of Construction and Transportation makes a decision on urban planning, he may draw up and determine the urban planning ex officio with respect to matters related to the State plan (Article 10 of the Local Autonomy Act, Article 8 [Attachment 1] 4.C. Article 8 [Attachment 1] of the Enforcement Decree of the Local Autonomy Act.

Third, the right to decide urban planning of the Minister of Construction and Transportation was delegated to the Special Metropolitan City Mayor, Metropolitan City Mayor or Do governor with respect to most of the matters including Article 2 (1) 1 (b) of the Urban Planning Act, but the right to decide urban planning, etc. directly formulated by the Minister of Construction and Transportation in accordance with the proviso of Article 11 of the Urban Planning Act has not been delegated to the Special Metropolitan City Mayor, Metropolitan City Mayor or Do governor

Therefore, the right to decide on urban planning for park and road installation in the Busan Metropolitan City captain-gun shall be the head of Busan Metropolitan City. However, the right to formulate the urban planning shall be deemed to have the head of the Gun, and the head of Busan Metropolitan City shall not have the authority to formulate it. Therefore, the disposition of this case made without the formulation and application of the head of the Gun, who is the authority to formulate

(ii)the effects of the decision on urban planning made without the drawing and application of the urban planning authority;

In full view of the above relevant laws and regulations, the urban planning at issue in this case is to be determined through ① the formulation procedure of urban planning by the captain-head of the Gun (basic survey ? continuous investigation ? hearing of opinions by the residents ? local council ? hearing of opinions by the captain-head of the Gun), ② the decision procedure of the Busan Metropolitan City Mayor ? the decision of urban planning committee ? the decision of the Busan Metropolitan City ? the decision of the city planning committee ? the decision of the Busan Metropolitan City ? the decision of the city planning committee ? the decision of the Busan Metropolitan City Do ? the decision of the city plan - the decision of the city plan - the purpose of promoting the sound urban development and contributing to the promotion of public welfare (see Article 1), the principle of due process requested to secure fairness, transparency, and reliability of the administration and to guarantee the rights and interests of the people (see Article 62 of the former Urban Planning Act).

3. Conclusion

Therefore, without further determination as to the remaining grounds for nullification of the disposition of this case, the plaintiff's claim is accepted, and the costs of the lawsuit are assessed against the losing defendant.

Judges Choi Jin-sil (Presiding Judge)