(영문) 대법원 2017.10.12.선고 2017두48987 판결

A. On January 28, 2016, the Plaintiff filed an application with the Defendant for a building permit that includes a permit for development and a permit for diversion of farmland (hereinafter referred to as “instant application”) on the ground of 2,163 square meters, which is part of 27,816 square meters or less, 428.4 meters of the building area.

B. G filed an application for a building permit on January 28, 2016 to construct the same kind of facilities as the site area of 2,163 meters prior to the above B, and 6,103 meters prior to the F (hereinafter referred to as “each of the above lands”) on the ground of 2,163 square meters above the building area of 428.4 meters; H of the same facility on the ground of 2,163 meters above the building area of the instant land, which is 46.39 meters above the building area of 46.39 meters, and H of the instant land, at the same time, G and H filed an application for a building permit on January 28, 2016 to build the same site area of 2,162 square meters above the instant land, and both the Plaintiff, G, H, I, and I (hereinafter referred to as “Plaintiff, etc.”) upon consultation with the Plaintiff’s owner of the instant land or each of the instant industrial complex development plans.

D. The Defendant asserted in the course of the instant lawsuit that, upon the acceptance of the instant application, another application for construction permit regarding a neighboring site and the method to regulate the difficulty of the construction of a new building accordingly no longer exists, and that public welfare obtained from the instant disposition is strong enough to justify the disadvantages suffered by the Plaintiff.

E. The instant land belongs to a specific use area, which is a green conservation area or natural green area, among urban areas, and in order to construct the instant land, it is necessary to cut, embezzling, suspend, and pack the land. In addition, the instant land is a dry field located in a broad smooth field, which is surrounded by broad farmland, such as electric field, paddy field, orchard, and orchard, and there are only 33 lines of national highways in and around the surrounding world. The instant land, including the instant land, appears to be farmland surrounded by green areas, and there are no many people.

2. A. A. Permission for development activities under Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and permission for, and consultation on, diversion of farmland under Article 34 of the Farmland Act have been granted discretion to an administrative agency as to whether the requirements and standards for prohibition are met, since there are many parts of the requirements and standards for prohibition, permission for, and consultation on, diversion of farmland under Article 56 of the same Act. Thus, whether the requirements are satisfied belongs to the discretionary jurisdiction of the administrative agency. Furthermore, permission for construction involving the act of changing the form and quality of land and the act of diversion of farmland within a specific-use area prescribed by the National Land Planning and Utilization Act has the nature of the permission for development activities and the said permission for farmland diversion as mentioned above under Article 11(1) of the Building Act, and thus, the judicial review thereof is also subject to discretionary action, taking into account the room for discretion in determining the public interest of the administrative agency. The criteria for determination is whether a person violates the principle of proportionality and equality (see, e.g., Supreme Court Decision 2016Du1756.

Meanwhile, according to Article 71(1) and 71(1)14 [Attachment 15] of the Enforcement Decree of the National Land Planning and Utilization Act pursuant to delegation of Article 76(1) and Article 36 of the National Land Planning and Utilization Act and Article 71(1)14 [Attachment 15] of the Enforcement Decree of the National Land Planning and Utilization Act, “Class 1 neighborhood living facilities, the construction of which is allowed from the “Preservation Green

B. We examine the above facts in light of the content of the relevant statutes and the aforementioned legal doctrine.

(1) Since the land subject to the instant application is located within a green conservation area under the National Land Planning Act as farmland, the act of changing the form and quality of land under the National Land Planning Act and the instant building permit accompanying the diversion of farmland under the Farmland Act constitute the Defendant’s discretionary act. However, among the criteria for permission for development activities, the national land planning statutes stipulate “whether the said land is in harmony with the surrounding environment or scenery, such as the actual use condition of surrounding areas or the land utilization plan, height of buildings, gradient, trees, water level, water drainage, river, lake, wetlands, etc.” (Article 58(1)4 of the National Land Planning Act, Article 56(1) [Attachment Table 1-2] of the Enforcement Decree of the National Land Planning Act, Article 34 of the Farmland Act, Article 33(1)5 of the Enforcement Decree of the Farmland Act, as the criteria for examination of permission for diversion of farmland, “the diversion of the relevant farmland does not cause any damage to the agricultural management of nearby farmland and the maintenance of the living environment in agricultural and fishing villages.” Therefore, the Defendant is bound to make a judgment of public interest.

(2) If a building permit is granted in this case, permission for development activities under the National Land Planning Act and permission for conversion of farmland under the Farmland Act are deemed to be granted, and thus consultation with the relevant department is required. Such consultation is ultimately related to whether the application of this case satisfies the above criteria for permission, etc., and the defendant made a disposition of refusal in accordance with the "the result of consultation with the relevant department" in the disposition of this case. Furthermore, the defendant clearly stated the purport of the disposition of refusal by asserting that the refusal of the application is recognized as a significant public interest because there is a problem such as the construction of a neighboring building in the litigation of this case and the construction of a new building at the time of acceptance of the application of this case. Accordingly, it cannot be deemed that the defendant merely presented the fact that the land of this case is included in the suspension of the creation of an industrial complex, and it can be deemed that the plaintiff did not meet the criteria for permission for development activities and conversion of farmland.

(3) ① Four persons, including the Plaintiff, etc., are not owners of the instant land or owners of the instant land at the same time with respect to a total of four-class neighborhood living facilities (retail stores) with the approval of the use of the instant land. In light of the fact that the neighboring citizens simultaneously file an application for retail store construction permission on the wide farmland of the green conservation zone, there is doubt as to the purport of the instant application. ② If the building area of each of the above retail stores to be constructed by four persons, including the Plaintiff, is combined on the instant land, the building area of each of the above retail stores to be constructed is considerably larger than 1,751.59m of square meters in light of the land use status or plan of the surrounding areas, it is doubtful whether the above criteria for permission for development activities or the examination criteria for permission for the use of farmland should be satisfied. Moreover, if the building is based on such large building, it is difficult for the Defendant to take into account that the construction of an industrial complex may cause damage to nearby farmland and that the building area of the instant land would be less than 40m of the building permit.

In full view of all these points, it is difficult to view that the application of this case did not meet the standards for permission for development activities and permission for diversion of farmland, etc., and that there was deviation or abuse of discretionary power, such as proportional and equality.

(4) Nevertheless, the lower court determined otherwise on the ground that the establishment and implementation of the industrial complex plan on the instant land is unclear, and that there was an error of deviation and abuse of discretion in the instant disposition, on the grounds that the Defendant’s disadvantage, such as infringement of the Plaintiff’s property right, is more unfavorable than the public interest that

Therefore, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.