[1] Whether a park building plan under the Act on Urban Parks, Greenbelts, etc. is premised on the determination of an urban park management plan concerning the construction of urban parks (affirmative)

[2] The validity of the portion indicated in an urban management plan where the land is indicated as if it were included in the urban management plan in the subsequent plan or disposition for the enforcement of the urban management plan even though it is obvious that the specific land in the urban management plan was not included in the determination and public notice

[1] A park building plan under the Act on Urban Parks, Greenbelts, etc. is based on the premise that an urban management plan concerning the building of urban parks is decided, as an administrative plan concerning the specific creation of a park. In particular, a site for urban parks (the spatial scope) is determined at the stage of an urban management plan, and a park building plan is to specifically determine the contents of an urban park and the arrangement of facilities (see Article 8 of the Enforcement Rule

[2] There are cases where the land is indicated as being included in the urban management planning in the subsequent plan or disposition for the enforcement of the urban management plan even though it is apparent that the specific land in the urban management plan was not included in the determination and public announcement of the urban management plan and its drawing. This is a matter of fact that the determination and public announcement of the urban management plan actually constitutes a modification of the urban management plan and thus, it is null and void unless it goes through the procedure for modification of the urban management plan under Article 30(5) of the former National Land Planning and Utilization Act (amended by Act

[1] Article 2 subparag. 3(a), Article 16(1), and Article 16-2 of the Urban Parks, Greenbelts, etc. Act, Article 8 of the Enforcement Rule of the Urban Parks, Greenbelts, etc. Act, Article 43(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) / [2] Article 30 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009), Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 2013Du14221 Decided December 10, 2015 (Gong2016Sang, 133) / [2] Supreme Court Decision 99Du11851 Decided March 23, 200 (Gong200Sang, 1073)

Plaintiff 1 and eight others (Law Firm Hun-Ga, Attorneys Kim Jae-soo et al., Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Han-ro, Attorneys Ha Tae-ro, Counsel for defendant-appellant)

Seoul High Court Decision 2018Nu34987 decided May 24, 2018

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

The grounds of appeal are examined.

1. Article 2 subparag. 3(a) of the Act on Urban Parks, Greenbelts, Etc. (hereinafter “Urban Parks and Greenbelts Act”) provides that “parks pursuant to Article 2 subparag. 6(b) of the same Act, which are determined by an urban or Gun management plan pursuant to Article 30 of the National Land Planning and Utilization Act, shall be one of the urban parks.” Article 16(1) of the same Act provides that when an urban or Gun management plan concerning the construction of an urban park is determined, the Special Metropolitan City Mayor, etc. having jurisdiction over the administrative district where the relevant urban park is located, shall formulate a creation plan for the relevant urban park. In addition, the main sentence of Article 43(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “National Land Planning Act”) shall be determined in advance by the type, name, location, size, etc. of the relevant facilities (see, e.g., Supreme Court Decision 201Du15181, supra.).

There are cases where a land is indicated as being included in an urban management plan in a subsequent plan or a disposition for the enforcement of an urban management plan even though the determination and public announcement of an urban management plan and its drawing clearly indicate that a specific land is not included in an urban management plan. This is a substantial modification of the determination of an urban management plan, and thus, is null and void as long as it does not go through the procedure for modification of an urban management plan as prescribed in Article 30(5) of the National Land Planning and Utilization Act (see, e.g., Supreme Court Decision

2. In light of the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following circumstances are revealed.

A. On June 21, 2004, the Mayor of Seoul Special Metropolitan City changed and publicly announced the urban management plan (urban planning facilities: parks) that included the instant forest, etc. into the ○○ Neighborhood Park (hereinafter “previous disposition”). (The part concerning the instant forest in the modified determination of the above urban management plan is referred to as “previous disposition”).

B. The Nonparty, the owner of the instant forest, filed a revocation lawsuit against the Seoul Special Metropolitan City Mayor, and the judgment was rendered and finalized to revoke the previous disposition (hereinafter “related final judgment”).

C. In accordance with the relevant final judgment on December 18, 2008, the Mayor of Seoul Special Metropolitan City determined for modification and announcement of urban management planning (urban planning facilities: parks) that exclude the instant forest from the 000 neighboring parks.

D. Meanwhile, the instant forest was included in the “entry square” as part of the instant forest in the ○○ Green Park creation plan for ○○○ Green Park on May 15, 2008 by the Seoul Special Metropolitan City Mayor, and the instant forest was still indicated as included in the “○○ Green Park” as it was included in the instant ○○ Green Park, as in the Seoul Special Metropolitan City Mayor’s decision on modification and public announcement of the creation plan for ○○ Green Park on May 4, 2016.

3. Examining these circumstances in light of the aforementioned legal principles, the instant forest was excluded from the “Urban Management Planning Concerning the Construction of Urban Parks,” which is the premise of a park building plan, and thereafter, the part on which the instant forest is indicated as being included in the “○○○ Green Park” in the modified determination on the creation plan for a ○○○ Green Park shall be deemed as having no effect contrary to the “Urban Management Planning Concerning the

The lower court’s determination that each of the instant dispositions cannot be deemed to have violated the aforementioned ○○○○ Green Park creation plan for the modification thereof is justifiable. In so determining, the lower court did not err by either violating Articles 16 and 16-2 of the Act on Parks and Greenbelts or by misapprehending the legal doctrine on park building plans, contrary to what is alleged in the grounds of

4. The plaintiffs' appeals are without merit, 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 Dong-won (Presiding Justice)