[1] In a case where an administrative agency that decides a future urban planning does not have the authority to decide, revise, etc. the preceding urban planning, the validity of the decision on the future urban planning including the contents that are inconsistent with the preceding urban planning (= null and void)

[2] In cases where an administrative disposition is taken by a public notice or public notice, the initial date (=the effective date of the public notice or public notice)

[1] An administrative agency with the authority to determine, modify, etc., a subsequent urban planning may determine and publicly announce a different urban planning with respect to an area where the prior urban planning has already been determined and publicly announced. In this case, if the contents are included that are inconsistent with the prior urban planning, the prior urban planning shall be changed to the same contents as the prior urban planning, barring any special circumstances. However, in a case where the administrative agency which has made a decision on the subsequent urban planning does not have the authority to decide, modify, etc., the subsequent urban planning shall abolish the prior urban planning without any authority, and make a subsequent urban planning decision including a new contents that are incompatible with the prior urban planning, and the subsequent urban planning decision shall be null and void as it is made by a person without the authority to abolish the prior urban planning decision on the same area. The subsequent urban planning decision on the prior urban planning shall be deemed null and void as it is not lawfully abolished without the authority to do so, and the defect shall be deemed null and void as it is significant and apparent

[2] In a case where an administrative disposition is taken through an ordinary public notice or announcement, the other party to the disposition is many and unspecified persons, and the effect of the disposition is uniformly applied to many and unspecified persons. Therefore, the period for requesting an administrative appeal against the administrative disposition should be deemed to have known that the administrative disposition was taken on the date five days after the public notice or announcement took effect, regardless of whether the interested party was actually aware of the fact that the public notice was made

[1] Article 2(1)1(b) and 3(3) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200) (see current Article 3 subparag. 3 and 7), Article 10(1) (see current Article 98(1)), Article 6(1) of the Enforcement Decree of the former Urban Planning Act (amended by Presidential Decree No. 16891 of Jul. 1, 200) / [2] Article 18(1) of the Administrative Appeals Act, Article 8(2) of the Administrative Management Regulations

[1] Supreme Court Decision 91Nu11292 delivered on September 22, 1992 (Gong1992, 301), Supreme Court en banc Decision 93Nu19047 delivered on May 12, 1995 (Gong1995Sang, 2127), Supreme Court Decision 95Nu1075 delivered on March 22, 1996 (Gong1996Sang, 1413 delivered on June 24, 1997 (Gong197Ha, 2183) / [2] Supreme Court Decision 94Nu5694 delivered on August 222, 1995 (Gong195Ha, 3132)

Plaintiff

Head of Gangseo-gu Busan Metropolitan Government (Attorney Lee Jae-soo, Counsel for defendant-appellee)

Busan High Court Decision 99Nu1151 delivered on October 8, 1999

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

We examine the grounds of appeal.

1. On the first ground for appeal

A. An administrative agency with the authority to determine, modify, etc., a subsequent urban planning may determine and publicly announce different urban planning with respect to an area where the prior urban planning has already been determined and publicly announced. In this case, if the subsequent urban planning contains any content inconsistent with the prior urban planning, barring any special circumstance, the prior urban planning shall be changed to the same content as the subsequent urban planning (see Supreme Court Decision 96Nu1313, Jun. 24, 1997); however, if an administrative agency with the authority to determine a subsequent urban planning does not have the authority to decide, modify, etc., the subsequent urban planning shall abolish the prior urban planning determination without any authority, and if the subsequent urban planning is not compatible with the prior urban planning, the subsequent urban planning determination shall be deemed null and void by a person without the authority to abolish the prior urban planning determination. The subsequent urban planning determination shall also be deemed null and void by a person without the authority to abolish the prior urban planning determination, and the defect in the subsequent urban planning shall also be deemed null and void, barring any significant and special circumstances.

B. According to the records, the Busan Metropolitan City Mayor (Seoul Metropolitan City Mayor at the time) has already determined urban planning facilities as the site for the second city highway of 50 meters wide, and the head of Busan Metropolitan City (Seoul Metropolitan City Mayor at the time) has already determined urban planning facilities as the site for the second city highway of 50 meters wide. From among urban planning facilities under Article 2 (1) 3 and 1 (b) of the former Urban Planning Act (wholly amended by Act No. 6243, Jan. 28, 2000; hereinafter referred to as the “Act”), the Defendant, who was re-entrusted the authority for the installation, etc. of public land (public land) among urban planning facilities under Article 2 (1) 3 and 1 (b) of the former Urban Planning Act (amended by Act No. 6243, Jan. 28, 200; hereinafter referred to as the “Act”), upon the procedure in the judgment of the court below, pointed out the land owned by the Plaintiff as public land and approved it on the same day in the Official Gazette.

Therefore, among the determination of urban planning facilities of this case, the part concerning the adjacent roads of this case among the determination of urban planning facilities of this case shall be null and void as it abolish without any authority the determination of the prior urban planning facilities (road) made by the Busan Metropolitan City Mayor, which is the re-agency authority, but the part concerning the determination of urban planning facilities of this case on the site of this case is lawful as there is no overlap in the determination of urban planning facilities, and the above defect in the determination of urban planning

C. Therefore, the judgment of the court below that the urban planning facility decision-making part on the site of this case is legitimate is just, and there is no error in the misapprehension of legal principles as to the validity of duplicate urban planning decision on the same area, and the Supreme Court's decision that is favorable in the ground of appeal is not appropriate to be invoked in this case because the case is different. The ground of appeal

2. On the second ground for appeal

A. In a case where an administrative disposition is taken through an ordinary public notice or announcement, the other party to the disposition is an unspecified number of persons, and the effect of the disposition is uniformly applied to many and unspecified persons. Therefore, the period for requesting an administrative appeal against the administrative disposition should be deemed to have known that the administrative disposition was taken on the date five days after the public notice or announcement was made, regardless of whether the interested party was actually aware of the fact that the public notice was made (see, e.g., Supreme Court en banc Decision 94Nu5694, Aug. 22, 1995).

B. According to the records, the defendant publicly announced the determination of urban planning facilities on the site of this case owned by the plaintiff on November 19, 197 in the Official Gazette, and the plaintiff did not file an administrative appeal until 90 days elapse, which is the period for filing an administrative appeal under Article 18 (1) of the Administrative Appeals Act, and filed a lawsuit seeking the cancellation of the determination of urban planning facilities on the site of this case (the lawsuit of this case was modified to the conjunctive claim of this case, among the lawsuit of this case) on July 25, 1998, which was enforced after July 1, 1998. If the facts are identical, regardless of whether the plaintiff actually knew of the determination of urban planning facilities on the site of this case at least five days after the date of the public notice in the Official Gazette, the plaintiff is deemed not to have known of the determination of urban planning facilities on the site of this case, and thus, the plaintiff did not file an administrative appeal request within 90 days prior to the expiration of the period for filing an administrative appeal under Article 18 (1) of the Administrative Litigation Act, which is unlawful.7(1).7).

C. Therefore, the judgment of the court below that deemed the plaintiff's preliminary claim part of this case to be unlawful is just, and there is no error in the misapprehension of legal principles as to the period of request for administrative appeal, and the Supreme Court's decision, which is contrary to the ground of appeal, is inappropriate to be invoked in this case because the case is different.

3. Therefore, the appeal is dismissed, and all 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 Jin-hun (Presiding Justice)