Whether an order to restore land to its original state, etc. under Article 92(1) of the former Urban Planning Act may be issued to change the form and quality of land in a development restriction zone without permission (negative

Articles 80, 133(1), and 142 of the National Land Planning and Utilization Act; Article 11(1)5 of the Act on Special Measures for Designation and Management of Development Restriction Zones

Supreme Court Decision 2003Do7494 Delivered on December 22, 2005

Defendant

Prosecutor

Attorney Cho Ji-su-su

Seoul Central District Court Decision 2007No1663 Decided September 4, 2007

The appeal is dismissed.

The grounds of appeal are examined.

Article 133(1) of the National Land Planning and Utilization Act (hereinafter “National Land Utilization Act”) provides that “any person who violates this Act shall be ordered to take measures, such as restoring land to its original state.” Thus, if any unauthorized act, such as changing the form and quality of land, in a development restriction zone, is not contrary to the National Land Utilization Act, it shall not be ordered to take measures, such as restoring land to its original state, pursuant to Article 133(1) of the National Land Utilization Act. The National Land Utilization Act does not directly prescribe development restriction zones, such as restriction on activities in a development restriction zone, but only provides that “the matters necessary for the designation and management of a development restriction zone shall be separately prescribed by Acts” under Article 80, and the Act on Special Measures for Designating and Managing Development Restriction Zones (hereinafter “Restriction on Activities in Development Restriction Zones”) prescribes matters necessary for efficient management of development restriction zones, such as restriction on activities in a development restriction zone, and thus, it does not violate the National Land Utilization Act without permission in the development restriction zone, but it shall not be punished by Defendant 2013(14).

In the same purport, the lower court’s determination that the act of changing the form and quality of land within the instant development restriction zone cannot be deemed as a violation of the National Land Utilization Act is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the National Land Utilization Act and the

In addition, as long as an unauthorized act in a development restriction zone does not constitute a minor act that can be done without permission or reporting as prescribed in Article 11(3) of the Development Restriction Zone Act, and Article 7-2 [Attachment 3-2] of the Enforcement Rule of the Development Restriction Zone Act, it may be punished as prescribed in Article 30 subparag. 1 and Article 11(1) of the Development Restriction Zone Act. Thus, there is no ground for appeal purporting that an unauthorized act in a development restriction zone should be governed by the National Land Utilization Act, since the Development Restriction Zone Act does not provide a penal provision

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)