[1] In a case where the preceding and subsequent dispositions cause a conflict of interest and make it impossible to dispute the validity of the preceding dispositions when the preceding and subsequent dispositions generate a separate legal effect independently, whether the validity of the latter dispositions can be asserted on the ground of the defect in the preceding dispositions (negative in principle)

[2] In a case where there is a defect in the determination of an urban or Gun planning facility, whether such defect is succeeded to the authorization of an implementation plan, which is a subsequent disposition (negative in principle)

[1] In a case where two or more administrative dispositions are made continuously or by phase, if there is a defect in the preceding dispositions when the legal effect of the preceding dispositions and the subsequent dispositions are completed, such defect shall be succeeded to the subsequent dispositions. In such a case, even if the preceding dispositions are not in dispute and their validity cannot be asserted, the validity of the subsequent dispositions may be asserted on the ground of the defect in the preceding dispositions. However, in a case where the preceding dispositions and the subsequent dispositions independently cause a separate legal effect, if it is impossible to dispute the validity of the preceding dispositions due to the lack of dispute, the validity of the subsequent dispositions shall not be asserted on the grounds of the defect in the preceding dispositions unless there are special circumstances, unless the defect in the preceding dispositions are null and void.

[2] According to Article 43(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the type, name, location, scale, etc. of a certain infrastructure must be determined by an urban or Gun management plan in advance. Articles 2 subparag. 7 and 10 of the National Land Planning and Utilization Act refer to infrastructure determined by an urban or Gun management plan as “urban or Gun planning facilities” and “urban or Gun planning facilities project” as “urban or Gun planning facilities” and “urban or Gun planning facility project”.

Urban or Gun planning facilities are established according to the determination of an urban or Gun management plan, and the determination of an urban or Gun planning facility shall take procedures, such as a basic investigation generally required for the determination of an urban or Gun management plan, hearing opinions of residents and local councils, consultation with the heads of relevant administrative agencies, or deliberation by the Urban Planning Committee. If the determination of an urban or Gun planning facility is made through such procedures, the location and area of the project site according to the type of urban or Gun planning facilities are determined, and, in principle, permission for buildings, etc.

On the other hand, the authorization of an implementation plan is realizing a specific project in accordance with the determination of an urban or Gun planning facility project, and where the Mayor/Do Governor deems that the implementation plan prepared by the implementer of an urban or Gun planning facility project meets the standards for the determination, structure, and installation of an urban or Gun planning facility (Articles 88(3) and 43(2)). The authorization of an implementation plan is granted the authority to expropriate the project implementer with the authority to implement an urban or Gun planning facility project and the land

Ultimately, determination of urban or Gun planning facilities and authorization of implementation plans are an independent administrative disposition that generates separate legal effects in accordance with separate requirements and procedures in a phased administrative procedure conducted for urban or Gun planning facilities project. Therefore, even if there is a defect in the determination of urban or Gun planning facilities, which is a prior disposition, it shall not be succeeded to the authorization of implementation plans,

[1] Articles 1 [General Administrative Disposition] and 19 of the Administrative Litigation Act / [2] Articles 2 subparag. 7 and 10, 43(1) and (2), 64, and 88(3) of the National Land Planning and Utilization Act, Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 93Nu8542 delivered on January 25, 1994 (Gong1994Sang, 849) Supreme Court Decision 2004Du14915 Delivered on April 15, 2005

Bigland Hotel Co., Ltd. (Attorney Lee Jae-in et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Jung-gun (Attorney Kim Jae-hwan et al., Counsel for defendant-appellant)

Gwangju High Court Decision 2015Nu6513 decided August 18, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. Defects in prior dispositions and their succession;

A. In a case where two or more administrative dispositions are continuously or gradually made, when one of the preceding dispositions and subsequent dispositions completes the legal effect, the defect thereof shall be succeeded to the subsequent disposition. In such a case, even if the preceding disposition becomes ineffective and its validity cannot be asserted, the validity of the subsequent disposition may be asserted on the ground of the defect in the preceding disposition. However, in a case where the preceding disposition and subsequent disposition independently cause a separate legal effect, unless the defect in the preceding disposition results in a dispute, and it is in principle impossible to dispute the validity of the subsequent disposition on the ground of the defect in the preceding disposition unless there are special circumstances (see Supreme Court Decision 93Nu8542 delivered on January 25, 1994, etc.).

According to Article 43(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the type, name, location, scale, etc. of a certain infrastructure must be determined by an urban or Gun management plan in advance for a certain infrastructure. Articles 2 subparag. 7 and 10 of the National Land Planning and Utilization Act refer to the infrastructure determined by an urban or Gun management plan as “urban or Gun planning facilities” and the project for installing, maintaining, or improving urban or Gun planning facilities as “urban or Gun planning facilities”.

Urban or Gun planning facilities are established according to the determination of an urban or Gun management plan, and the determination of an urban or Gun planning facility shall take procedures, such as a basic investigation generally required for the determination of an urban or Gun management plan, hearing opinions of residents and local councils, consultation with the heads of relevant administrative agencies, or deliberation by the Urban Planning Committee. If the determination of an urban or Gun planning facility is made through such procedures, the location and area of the project site according to the type of urban or Gun planning facilities are determined, and, in principle, permission for buildings, etc.

On the other hand, the authorization of an implementation plan is realizing a specific project in accordance with the determination of an urban or Gun planning facility project, and where the Mayor/Do Governor deems that the implementation plan prepared by the implementer of an urban or Gun planning facility project meets the standards for the determination, structure, and installation of an urban or Gun planning facility (Articles 88(3) and 43(2)). The authorization of an implementation plan is granted the authority to expropriate the project implementer with the authority to implement an urban or Gun planning facility project and the land

Ultimately, determination of urban or Gun planning facilities and authorization of implementation plans can be said to be an independent administrative disposition that generates a separate legal effect in accordance with separate requirements and procedures in a phased administrative procedure conducted for urban or Gun planning facilities projects. Therefore, even if there is a defect in the determination of urban or Gun planning facilities, which is a prior disposition, it shall not be succeeded to the authorization of implementation plans

B. The lower court acknowledged the following facts.

(1) The Plaintiff operating a tourist hotel had owned some of the instant land in the hotel site.

(2) On June 27, 2012, the Do governor issued a decision on urban planning facilities (hereinafter “decision on the instant urban planning facilities”) with the content of changing the specific use area into a planned management area with respect to 10-day, 102,754 square meters, a Do screen Maranam-gun, Jeonnam-gun, including the instant land, into a planned management area, and newly establishing a youth training center as an urban planning facility (juvenile training facility) and publicly notifying the determination thereof.

(3) On December 26, 2012, the Defendant designated the Gwangju Metropolitan City Office of Education as a project implementer of an urban planning facility project (hereinafter “instant project”) according to the determination of the instant urban planning facility project, and authorized the divisional implementation plan for the instant project (hereinafter “instant disposition”), and publicly notified the said plan.

C. On the premise of such factual basis, the lower court determined that: (a) the determination of the instant planning facility was conducted by the Defendant for public inspection and announcement; (b) hearing of the opinions of the residents; (c) hearing of opinions on the basic survey and prior environmental review; and (d) hearing of opinions of the high interest groups; and (c) balancing the public and private interests arising from the instant project; and (c) thus, it is difficult to deem that the defect as alleged by the Plaintiff is recognized as identical to the determination of the instant planning facility; and (d) even if such defect is recognized, it cannot be deemed as a matter of course as being null and void; and therefore, (c) determined that the defect

D. The lower court’s determination is justifiable in light of the foregoing legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on the defect in the determination of the instant planning facility and the succession thereto, failing to exhaust all necessary deliberations, or omitting judgment, contrary to what is alleged

2. Profit balancing concerning the disposition of this case

The lower court, on the following grounds, determined that the administrative agency’s disposition process of the instant disposition does not need to re-examine the public interest of the instant project or the profit balancing from the project implementation

An administrative agency that determines whether an implementation plan for an urban or Gun planning facility project is in conformity with the standards for the determination, structure, and installation of an urban or Gun planning facility project is sufficient to determine whether the implementation plan conforms to the standards for the determination, structure, and installation of an urban or Gun planning facility, barring special circumstances. Furthermore, there is no need to re-contribute the public interest of the project or the interests in the implementation of the project. There is no such special circumstance in this case.

Examining the reasoning of the lower judgment in light of the relevant provisions and legal principles, the lower court’s determination as to the instant disposition, which authorized the implementation plan for the business of installing youth training facilities, is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine regarding defects in the instant disposition or by failing to exhaust all necessary

3. Conclusion

The Defendant’s appeal is dismissed as it is 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.

Justices Park Poe-young (Presiding Justice)