Where granting approval for the implementation of a project pursuant to Article 11 of the Special Act on Support for Areas, etc. adjacent to the granted district of US Armed Forces in Korea, whether the requirements for prior consultation with the head of the relevant administrative agency regarding the legal fiction of all authorization and permission related to the project prescribed in Article 29 (1) of the same Act

The legislative purpose of Article 29 of the former Special Act on Support to Areas, etc. adjacent to Areas, including United States Armed Forces in Korea (amended by Act No. 9000, Mar. 28, 2008; hereinafter “former Special Act on Support”) is to simplify administrative procedures for the smooth implementation of target projects. If it is interpreted that prior to the approval for implementation of a project, consultation with the head of the relevant administrative agency on matters, such as the legal fiction of all authorizations related to the project must be completed, it is not only against the applicant’s intent to obtain the legal fiction of partial authorizations, but also goes against the purport of Article 29(1) of the former Special Act on Support to Areas, etc., of United States Armed Forces in Korea (amended by Act No. 9843, Dec. 29, 2009; hereinafter “former Special Act”). In light of the main sentence of Article 11(1) and Article 29(2) of the former Special Act on Support to Areas, etc. adjacent to Areas, etc. of United States Armed Forces may take effect upon consultation with the head of the relevant administrative agency.

Articles 11(1) and 29(1) and (2) of the former Special Act on Support for Areas, etc. adjacent to the granted zone of US Armed Forces in Korea (amended by Act No. 9000, Mar. 28, 2008)

Plaintiff 1 and 35 others (Law Firm Dakel, Attorneys Cheong-dam et al., Counsel for the plaintiff-appellant)

Pakistan Market (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

School Foundation Co., Ltd (Law Firm Sejong, Attorneys Lee Jong-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Nu1558 decided August 25, 2009

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the misapprehension of legal principles as to the illegality of the project implementation approval without going through consultation on the agenda of related authorization and permission

A. The main sentence of Article 11(1) of the former Special Act on Support to Areas, etc. Adjacent to US Armed Forces in Korea (amended by Act No. 9000, Mar. 28, 2008; hereinafter “former Special Act on Support”) provides that “A person who intends to implement a project (excluding the persons provided for in Article 10(1)1 through 4) shall obtain approval from the head of the competent Si/Gun/Gu.” Article 29(1) provides that “When a project implementation approval is granted under Article 11, a person shall be deemed to have obtained the following permission, designation, approval, consultation, cancellation, decision, consent, etc. (hereinafter “authorization, etc.”)” and Article 11(1)1 through 28 provides that “Any person who intends to implement a project (excluding the persons provided for in Article 10(1)1 through 4) shall obtain approval from the head of the competent Si/Gun/Gu.” Article 29(2) provides that “The head of the relevant central administrative agency shall not consult with the head of the relevant central administrative agency within 3 days.”

The legislative purpose of Article 29 of the former Special Act on Support is to simplify administrative procedures in order to facilitate the smooth implementation of target projects. If it is interpreted that all matters related to the legal fictions of authorization and permission must undergo consultation with the head of the relevant administrative agency before approval for implementation of the project is granted, it is not consistent with the intent of the applicant for approval for implementation of the project that only intends to obtain the legal fictions of authorization and permission from the head of the relevant administrative agency, and it goes against the purport of Article 29 (1) of the former Special Act on Support. In light of Article 29 (1) of the same Act, if the Special Act on Support to Areas adjacent to US Armed Forces in Korea was amended by Act No. 9843 on December 29, 2009, "if approval for implementation of the project under the provisions of Article 11 has been granted, it shall be deemed that consultation with the head of the relevant administrative agency and the head of the relevant local government should have been obtained with respect to the legal fictions of authorization and permission from the relevant administrative agency."

B. According to the reasoning of the first instance judgment partially admitted by the lower court and the reasoning of the lower judgment, the lower court acknowledged facts as indicated in its reasoning after compiling the adopted evidence, and determined that the Defendant’s prior consultation with the Governor of the Gyeonggi-do prior to the implementation of the urban management plan under Article 29(1)1 of the former Special Act on Support (amended by Act No. 930, Mar. 28, 2008; hereinafter “instant disposition”) was not a requirement for prior consultation with the head of the relevant administrative agency on the legal fiction of all authorizations under Article 29(1) of the former Special Act on Support, since it did not require prior consultation with the Governor of the Gyeonggi-do regarding the matters of research facilities or urban planning facilities such as schools, if it did not require prior consultation with the Governor of the Gyeonggi-do on the matters of the instant urban management plan under Article 29(1)1 of the former Special Act on Support (amended by Act No. 930, Mar. 28, 2008).

Furthermore, on the premise of this premise, the lower court determined that it is reasonable to view that the Defendant was subject to prior consultation with the Governor of the Gyeonggi-do as to the alteration of the urban management plan for the alteration of the specific use area on April 30, 2007, and that the Gyeonggi-do Governor decided to change the specific use area of 214,717 square meters, an agricultural and forest area, among the project sites of this case, as the Gyeonggi-do Notification No. 2007-5100 on August 27, 2007, and the disposition of this case also includes the alteration of the specific use area as above.

C. In light of the above-related statutes, legal principles, and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles regarding the illegality of the approval for the implementation of a project without consultation regarding the legal fiction of the relevant authorization or permission, or in violation of

2. As to the misapprehension of legal principles as to the procedures for hearing residents' opinions

Article 7 (1) of the former Special Act on Support provides that "the Mayor/Do Governor shall establish a comprehensive plan and submit it to the Minister of the Interior and Safety after consultation with or application from the head of a Si/Gun/Gu, as prescribed by Presidential Decree." Article 8 (1) of the former Enforcement Decree of the Special Act on Support for Areas, etc. adjacent to Areas, including Areas, of the United States Armed Forces in Korea (amended by Presidential Decree No. 20801, Jun. 5, 2008; hereinafter "former Enforcement Decree of the Special Act on Support") provides that "the Mayor/Do Governor shall hold a public hearing to hear the opinions of residents and relevant experts when formulating a comprehensive plan pursuant to Article 7 (1) of the Act, and does not provide that the Mayor/Do Governor shall take the procedures for hearing opinions of residents, such as a public hearing

According to the reasoning of the first instance judgment partially admitted by the lower court and the reasoning of the lower judgment, the lower court determined that, after compiling the adopted evidence, the public hearing was held pursuant to Article 7(1) of the former Special Act on Support at the time of establishing a comprehensive plan containing the project contents of the instant case, and Article 8(1) of the former Enforcement Decree of the Special Act on Support, and the Defendant did not follow the procedures for hearing the opinions of residents at the time of determining urban management planning and prior environmental review regarding the instant project, the disposition of the instant case is not unlawful on the ground that it did not follow the procedures for hearing the opinions of residents again, and further, Article 11(1) of the former Special Act on Support, which did not separately stipulate that the procedures for hearing the opinions of the residents

In light of the above relevant statutes and the records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the procedures for hearing residents' opinions

3. As to the misapprehension of the legal principles as to the validity of the project approval and the announcement of the project approval and the deviation and abuse of discretionary power

A. Article 11(5) of the former Special Act on Support provides that "a project approving authority shall, when granting approval for the implementation of a project, make a public announcement thereof under the conditions as prescribed by the Presidential Decree." Article 31(5) provides that "if the implementation of a project under Article 11 has been approved, the project approval and the public announcement of the project approval under Articles 20 and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter "the Public Works Act") shall be deemed to have been made." Article 12 of the former Enforcement Decree of the Special Act on Support provides that "the project approving authority shall give public notice of the name and purpose of the project, name and address of the project operator, the outline of the project, the project implementation period, the expropriation or use of the land to a bulletin board, local public bulletin, or the Internet homepage, etc., and if necessary, may give public notice thereof in a daily newspaper distributed mainly in the area of

According to the evidence duly adopted by the court below, on March 25, 2008, the defendant issued a disposition against the defendant joining the defendant that "shall approve the implementation of the project (designation of a project implementer and designation of a planned project area) in accordance with Article 11 of the former Special Act on Support." The disposition of this case is in accordance with the defendant's guidelines for processing the project implementation (revision) approval (hereinafter "the management guidelines of this case"). ② The management guidelines of this case provide that the project approval and the announcement of the project approval under Articles 20 and 22 of the Public Works Act shall be deemed to have been made in accordance with Article 31 (5) of the former Special Act on Support and the designation of a planned project area and the imposition of the project approval. ③ The defendant, on the premise that the approval for the implementation of the project was approved, may not request the construction approval of this case on March 25, 2008 and the announcement of the construction plan or the announcement of the project plan of this case on March 26, 2008."

In light of the relevant laws and regulations as seen earlier, the legal fiction of project approval and announcement of project approval under the Public Works Act pursuant to Article 31(5) of the former Special Act on Assistance has become effective due to the instant disposition.

B. According to the reasoning of the first instance judgment partially accepted by the lower court and the reasoning of the lower judgment, the lower court determined that the instant disposition did not be deemed to have been in force or has been abused discretion, taking into account the following: (a) the legal fiction of the project approval and the announcement of the project approval under the Public Works Act pursuant to Article 31(5) of the former Special Act on Support until prior consultation on the legal fiction of partial authorization and permission has not been made; and (b) the attracting of the instant project with a private investment project to build an education and research facility for the economic development of underdeveloped-si area; (c) the formulation of a comprehensive plan through deliberation procedures by the Development Committee comprised of the heads of related agencies and local governments; (d) the feasibility of the project area and the project contents; (e) the public hearing was conducted through consultation with relevant experts and residents at the time of the formulation of the comprehensive plan; (e) the consultation with the Gyeonggi-do Governor regarding the determination of the urban management

In light of the above-related statutes, legal principles, and records, the judgment of the court below that the disposition in this case does not naturally take effect with the legal fiction of the project approval and the announcement of project approval under the Public Works Act. However, the decision of the court below that the disposition in this case is a so-called beneficial administrative disposition which entails the effect of giving rights or benefits to the defendant joining the defendant, who is the other party to the disposition, and in principle belongs to the defendant's discretion, which is an administrative agency. In light of other circumstances cited by the court below, the disposition in this case does not seem to have exceeded and abused the discretionary authority. Ultimately, the court below

4. Conclusion

Therefore, all appeals are dismissed, 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 Park Il-young (Presiding Justice)