Korea Life Insurance Co., Ltd. (Law Firm Apex, Attorneys Kim Dong-ho et al., Counsel for the plaintiff-appellant)

Head of Yeongdeungpo-si (Attorney Lee Byung-hun, Counsel for the plaintiff-appellant)

November 18, 2009

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s provisional injunction against the Plaintiff on July 23, 2008, and the disposition of imposition of KRW 1,116,402,00 for non-performance penalty imposed on July 29, 2008 (the written complaint on July 28, 2008 appears to be erroneous) shall be revoked, respectively.

1. Details of the disposition;

A. Permission for a land transaction contract on December 29, 2006 (hereinafter “instant land transaction contract permission”).

- Defendant 1

- Permission: Each land (natural green belt area; hereinafter referred to as “instant land”) on which the permission for a land transaction contract is written in the attached Form.

- The purpose of use: Welfare convenience facilities (scheduled date of commencement: December 2007)

B. An order to use land transaction contract on March 20, 208 as an obligation to permit land transaction contract.

- Defendant 1

- Period of implementation: from March 25, 2008 to June 25, 2008

C. Application for permission for development activities (land form and quality alteration) on June 24, 2008 (hereinafter “instant application”).

- Plaintiff ? Defendant

- Object of application: 9,90 square meters of each land indicated in the details of application for permission for development activities in the attached Form (hereinafter “instant application site”).

- Purposes of development activities: Creation of a dormitory and its affiliated facilities (hereinafter referred to as “instant dormitory”) site stated in the details of the application for permission for development activities.

(d) Notice of imposition of enforcement fines on July 2, 2008;

- Defendant 1

(e) Presentation of opinions on July 14, 2008 regarding advance notice of imposition of enforcement fines.

- Plaintiff ? Defendant

F. Disposition of non-permission of development activities (land form and quality alteration) on July 23, 2008 (hereinafter “instant non-permission disposition”).

- Defendant 1

- Grounds for non-permission

○ Article 58 of the National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “National Land Planning Act”) and Article 56(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21669, Aug. 5, 2009);

Although an urban management plan is not determined in an area where a road or a sewerage system is not installed, it is found that the existing status road (large 3.5 to 4m, extension 100m) is at least 6m wide, and that the existing status road (large 3.5m, 100m) is at least 6m wide, and it is improper as a plan to connect to a neighboring urban planning road (large Do Ordinance Article 21).

G. Imposition of enforcement fines on July 29, 2008 (hereinafter “instant disposition for imposition”)

- Defendant 1

- Subject to imposition: In the case of this case, the subject of imposition is the subject of the instant imposition, including the land number 1,334m2, 1,334m2, 689m2, 689m2, 14,765m2, and 14,765m2 (hereinafter collectively referred to as “the subject of the instant imposition”).

- Amount: 1,16,402,00 won = 665,00 won ¡¿ (1,334 square meters + 689 square meters + 14,765 square meters) ¡¿ 0.1];

- Grounds for imposition: Not being used for the purpose of permission (welfare facilities: the scheduled date of commencement: December 2007; the implementation period: March 25, 2008 to June 25, 2008);

- Applicable Law: Articles 124, 124-2 of the National Land Planning and Utilization Act

(h) Appeal.

- Plaintiff ? Gyeonggi-do Administrative Appeals Commission

- Subject to appeal: The disapproval of this case and the disposition of imposition (hereinafter collectively referred to as "the disposition of this case").

- All dismissals on March 3, 2009

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Gap evidence 5, 8, 9, 11 (including additional numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) Disposition of non-permission of this case

㈎ 이 사건 신청지는 면적이 5,000㎡를 초과하므로 용인시 도시계획조례 제28조 제1호에 따라 용인시 도시계획위원회의 자문을 거쳤어야 함에도 이러한 절차를 거치지 않고 이 사건 불허처분을 하였다.

㈏ 이 사건 신청지 위쪽은 원고 소유의 연수원시설이 있어 녹지로서의 기능을 상실하였고, 이 사건 신청지 오른쪽은 용인시 기흥구 보정동 (지번 8 생략), (지번 9 생략), (지번 10 생략) 각 토지에 관하여 건축허가 및 지반조성이 완료되어 녹지 기능을 상실하였다. 행정청 스스로도 이 사건 신청지 인근에 근린공원과 소공원의 설치를 예정함으로써 녹지축을 훼손할 계획을 세우고 있다. 따라서 이 사건 신청지는 자연경관 및 미관이 양호하다거나 보호할 가치가 있는 녹지축이 있다고 볼 수 없다. 더욱이 원고는 이 사건 기숙사를 신축함에 있어 조경에만 10억 원 이상을 투입할 계획이므로, 이 사건 기숙사 신축으로 인하여 자연경관 및 미관 훼손, 환경오염·생태계파괴·위해발생 우려, 녹지축 절단의 문제는 발생할 여지가 없다.

In the case of roads and sewerage, the road and sewerage are already installed in the land adjacent to the application area of this case, which are 3.5 to 4 meters wide on the land of Yeongdeungpo-gu Seoul Special Metropolitan City (number 11 omitted). Thus, the Plaintiff intends to expand the width of the above road by 6 meters. Since the city price at the time when the Plaintiff filed the application of this case has already prepared a plan to install sewage pipes on the above current status road at the time of the filing of the application of this case, even under Article 21 of the Urban Planning Ordinance

㈐ 원고는 이 사건 토지거래계약허가를 신뢰하여 기숙사를 신축하기 위하여 114억 9,000만 원을 들여 이 사건 토지를 매수한 데다 건축설계도 및 개발행위허가신청서류 작성 등에 약 4억 원의 용역비를 더 지출하기도 하였으니, 피고가 이제 와서 이 사건 불허처분을 하는 것은 신뢰보호의 원칙에 반한다.

(2) Disposition of this case

㈎ 원고가 이 사건 부과대상지를 허가목적대로 이용하지 못한 것은 만연히 토지거래계약을 허가하였다가 개발행위를 불허가한 피고에게 전적인 책임이 있고 원고에게는 아무런 귀책사유가 없으므로, 국토계획법 시행령(2008. 9. 25. 대통령령 제21038호로 개정되기 전의 것) 제124조 제1항 제1호 및 제7호 가 정한 사유가 있다. 따라서 원고에게는 국토계획법 제124조 제1항 의 규정에 의한 토지의 이용의무 자체가 발생하지 않았다.

㈏ 이 사건 부과처분은 신뢰보호의 원칙에 위배되어 재량권의 일탈·남용에 해당한다.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Markets:

(1) Disposition of non-permission of this case

㈎ 첫 번째 주장에 관한 판단

Article 59(1) of the National Land Planning and Utilization Act and Article 57(1)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21038, Sep. 25, 2008) and Article 55(1)1(a) of the Enforcement Decree of the same Act provide that where a change in the form and quality of land exceeding 10,000 square meters is permitted for the construction of a building or the construction of a structure in a natural green area, it shall be subject to deliberation by the urban planning committee. The National Land Planning Act and the National Land Planning Act and the National Land Planning Act provide that the change in the form and quality of land is less than 10,000 square meters as the site for the instant application, there is no provision that such change in the form and quality of land shall be subject to deliberation or consultation by the urban planning committee or consultation

On the other hand, Article 28 of the Urban Planning Ordinance of Jongno-si provides that any development act to be deliberated by the urban planning committee pursuant to Article 59 of the National Land Planning and Utilization Act shall be subject to an advice by the urban planning committee on a change in the form and quality of land, the area of which is not more than 5,000 square meters, and is excluded from the scope of consultation by the urban planning committee. In light of the structure and contents of the above provision, the above provision of the Ordinance is merely an internal administrative procedure for changing the form and quality of land, which is not provided for by the National Land Planning and Utilization Act, which is not provided for by the National Land Planning and Utilization Act as an internal administrative procedure. Thus, prior to the rejection of the disposition in this case, there is no procedural

㈏ 두 번째 주장에 관한 판단

Permission to change the form and quality of land in an urban area designated by the National Land Planning Act belongs to the discretionary act of an administrative agency (see Supreme Court Decision 2004Du6181 delivered on July 14, 2005, etc.).

Article 15 of the National Land Planning Act (amended by Presidential Decree No. 2169 of Aug. 5, 2009) and Article 30 subparag. 4 (c) of the Enforcement Decree of the National Land Planning Act (amended by Presidential Decree No. 21669 of the same Act). The following circumstances can be acknowledged by adding the whole purport of pleadings to the entries and videos of No. 4 through No. 13 (Ga number). ① Land category of the instant application is designated as a natural green area among urban areas under the National Land Planning Act. Such natural green area is limited to inevitable areas (Article 30 subparag. 4 (c) of the Enforcement Decree of the National Land Planning Act (amended by Presidential Decree No. 21669 of Aug. 5, 2009). (2) The application of this case forms a group of trees with good clinical trees, such as securing urban green belt space, preventing urban proliferation, and preserving the natural environment and landscape of the city. (3) The application of this case cannot be seen as being significantly damaged if it permits to develop activities as requested.

㈐ 세 번째 주장에 관한 판단

In light of the purport of the evidence No. 4-1 and No. 2 of the argument, the defendant presented the opinion of the department in charge of permission for the land transaction contract prior to the permission for the land transaction contract of this case, and stated that "the purpose of acquisition is "the permission, permission, etc. (permission, etc. for development acts and building permission, etc.)" in "the permission for the land transaction contract of this case is not granted." Thus, if the purpose of acquisition is for development, it shall be confirmed whether the development act conforms to the relevant law, and then the decision of the sale contract is made." Thus, it cannot be concluded that the defendant issued the public opinion of the public opinion that he would permit the development act of the land of this case as to the application of this case to the plaintiff with the permission for the land transaction contract of this case (the opinion of on-site investigation of land transaction contract of this case)" (On the other hand, it is merely an internal document presented by the department in charge of permission for the land transaction contract of this case prior to the permission for the land transaction contract of this case, and its content does not meet individual criteria for the permission for development activities of this case.

(2) Disposition of this case

㈎ 첫 번째 주장에 관한 판단

As seen earlier, the Plaintiff acquired the instant land subject to permission for the instant land transaction contract and thereafter filed an application for permission to engage in development activities on the said (number 3 omitted), and on the said (number 2 omitted) forest and field, and received non-permission. However, there is no evidence to deem that the criteria for permission to engage in development activities have been strengthened pursuant to the National Land Planning Act or relevant statutes after the permission for the instant land transaction contract was granted. Thus, the Plaintiff’s assertion alone does not constitute “where, after acquiring land, a plan for the use and management of land, such as a specific use area, etc., becomes unusable for the purpose of its use due to the restriction on activities under the Act or relevant statutes,” under Article 124(1)1 of the Enforcement Decree of the National Land Planning Act (amended by Presidential Decree No. 21038, Sep. 25, 2008).

In addition, the following circumstances, which can be recognized by adding the whole purport of pleadings to the statements or images of Gap evidence Nos. 5, Gap evidence Nos. 13 through 15, Eul evidence Nos. 4, Eul evidence Nos. 7 through 14 (including paper numbers), and Eul evidence Nos. 7 through 14 (including paper numbers) are as follows: ① The plaintiff appears to have acquired the subject of the instant land transaction contract without sufficient legal review in a situation where it is clear whether the subject of the instant land is subject to the instant land transaction contract with the knowledge of the fact that the land price includes the normal part of the mountain, because it is nothing more than one year and five months from the date of permission for the instant land transaction contract; ② The plaintiff filed an application for the permission for development activities after adjusting the location, area, etc. of a dormitory, and it is not entirely impossible to obtain the permission for development activities within the extent that it does not cause any problem such as green-belt reduction. Thus, it is difficult to view that the subject of the instant land was not attributable to the plaintiff.

Therefore, we cannot accept this part of the plaintiff's assertion.

㈏ 두 번째 주장에 관한 판단

Article 124-2 (1) of the National Land Planning and Utilization Act provides that "the head of a Si/Gun/Gu may order a person who fails to perform his/her duty to utilize land under Article 124 (1) to fulfill his/her duty to utilize land within a reasonable period of time," where the head of a Si/Gun/Gu orders a person who fails to perform his/her duty to utilize land to perform his/her duty to use land, shall do so in his/her discretion. However, Article 124-2 (2) of the National Land Planning and Utilization Act provides that "where he/she fails to perform his/her duty to use land within a specified period of time under paragraph (1), the head of a Si/Gun/Gu shall impose a non-performance penalty of an amount prescribed by Presidential Decree within the limit of 10/100 of the acquisition value

The instant disposition is also a disposition of imposition pursuant to Article 124-2(2) of the National Land Planning and Utilization Act, and its nature is a binding act, and thus, deviation from and abuse of discretionary power is not likely to be an issue. On a different premise, the Plaintiff’s assertion on this part cannot be accepted.

(3) Therefore, all of the instant dispositions are lawful.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-sik (Presiding Judge)