The meaning of an administrative plan, and the limit of freedom of formation that an administrative body has at the time of formulating and determining a specific administrative plan / In a case where an administrative body does not balance any interest when it formulates and determines an administrative plan, or omits any matters to be included in those subject to consideration of the balance of interest, or where it lacks legitimacy and objectivity while balancing interest, whether the decision of an administrative plan is unlawful (affirmative)

Article 27 of the Administrative Litigation Act

Supreme Court Decision 2009Du21499 Decided March 25, 2010 (Gong2011Sang, 657) Supreme Court Decision 2010Du21464 Decided February 24, 201 (Gong2011Sang, 657) Decided July 10, 2014

Law Firm Construction Co., Ltd and two others (Law Firm Sejong, Attorneys Park Sejong-ro et al., Counsel for the plaintiff-appellant)

Plaintiff Intervenor 1 and 13 others

Mayor of Incheon Metropolitan City (Government Law Firm Corporation, Attorneys Kim Tae-hun et al., Counsel for the plaintiff-appellant)

Third Party Litigation Intervenor 1 and eight others

Seoul High Court Decision 2014Nu43990 decided July 8, 2015

All appeals are dismissed. The costs of appeal are assessed against the Intervenor, and the remainder is assessed against the Plaintiffs, including the part arising from the intervention in the third party lawsuit.

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

1. As to the grounds of appeal Nos. 1 and 2

A. An administrative plan refers to an activity criteria or establishment thereof established to realize a certain order at a certain point in the future by integrating and coordinating administrative means related to professional and technical judgments regarding administration to achieve a specific administrative objective. An administrative agency has relatively broad freedom of formation when formulating and determining a specific administrative plan. However, an administrative agency’s freedom of formation cannot be deemed unlimited; however, there is a limitation that the interests of relevant persons should be fairly compared and compared not only between the public interest and private interest but also between the public interest and private interest. Thus, if an administrative agency formulates and determines an administrative plan, or where the administrative agency fails to pay the benefits at all or omits the matters to be included in the subject of consideration of the benefits and interest, or where the benefits and objectivity are lack in legitimacy and objectivity, the administrative plan’s decision may be deemed unlawful due to the defect in the benefits and interests (see, e.g., Supreme Court Decisions 201Du21464, Feb. 24, 201; 201Du4672, Jul. 26, 2014).

This legal doctrine is likewise applicable not only to cases where an administrative body decides whether to accept a proposal for the formulation of an urban management plan by residents, etc., but also to cases where it decides whether to modify or abolish the existing urban management planning decision made in accordance with a proposal (see, e.g., Supreme Court Decision 2009Du21499, Mar. 25, 2010). In such cases, interests, such as trust interest in the decision of the previous urban management planning held by a drafting proposer, etc. or all circumstances that were not properly considered in the decision of the previous urban management plan may be included as a matter of course in consideration of the balancing of interests, and this ought to be fairly compared and linked to all public and private

B. The lower court: (a) planned the instant project that created a public golf course in Gyeyang-dong, Incheon, and proposed the Defendant to formulate such an urban management plan; and (b) on October 5, 2009, the Defendant publicly announced the instant urban management plan and its topographic map with the content of installing a public golf course on a size of 717,000 square meters in Gyeyang-dong, Incheon, Incheon, which was subject to deliberation by the Urban Planning Committee; and (b) on April 30, 2012, the Defendant issued the instant disposition that modified the instant urban management plan.

C. Based on these factual basis, the lower court determined that: (a) the Defendant’s instant disposition that modified or abolished the instant urban management plan on the grounds delineated below, did not constitute a case where: (b) did not perform at all the profit balancing; (c) omitted matters to be included in the subject of consideration of the profit balancing; or (d) did not constitute a case where there was a lack of legitimacy and objectivity despite

(1) Gyeyangsan Industries is the highest representative mountain in Incheon where mountainous districts are insufficient. Animals with high value of protection live in, and biological diversity, such as discovery of rare plants designated by the Korea Forest Service, is outstanding, and there is a high need for conservation in terms of the continuity of ecosystems, as it is located at the center of “S(S)”-type green belt axis from Modsan to Madsan, and is also located at the center of “S(S)-type green belt axis from Madsan to Madsan.” It is also a place where the Incheon citizens and citizens utilize it

However, the instant project has a significant negative impact on the natural environment or landscape of Gyeyangsan in light of its detailed business details, the location, form, and area of the area subject to the project. The instant project appears to be closed or its use is restricted due to the instant project, and in such cases, it is anticipated that considerable constraints will be placed on the said leisure and sports activities.

(2) Although the instant project is expected to construct a public golf course and the increase in the number of golf club users due to the improvement of the level of life, among the citizens of the Republic of Korea as of 2011, there are economic constraints on the use of a public golf course freely by ordinary ordinary people due to the creation of a high level of fees for the use of a public golf course. The preservation of the Gyeyangsan’s natural environment seems to essentially contribute to the promotion of leisure activities by ordinary people rather than the promotion of the instant project. Furthermore, in light of the fact that 12 golf courses are already in operation or establishment, and three of them are public golf courses, there is also insufficient justification for additional construction of a golf course.

(3) At the time of the instant disposition, there were various circumstances and conditions different from the time of the announcement of the instant urban management plan.

① According to the results of the public perusal and public announcement of the instant disposition and the results of the public opinion poll, the pros and cons for the promotion of the instant project emerged as an important environmental issue in the local community following the public announcement of the instant urban management plan. In comparison with the public announcement of the instant urban management plan, the public opinion at the time of the instant disposition was significant changes to the opposing part of the

② On October 24, 2011, the Incheon Metropolitan City Council enacted the Incheon Metropolitan City Gyeyangsan Protection Ordinance (Ordinance No. 4999) for the purpose of protecting the natural resources and natural ecosystem of Gyeyangsan. The said Ordinance provides for the establishment of a comprehensive plan for the protection of Gyeyangsan, the systematic management of the natural environment of Gyeyangsan, and the organization and operation of the Gyeyangsan Protection Committee under the Incheon Metropolitan City.

③ The Ministry of Land, Transport and Maritime Affairs revised the “Rules on Determination, Structure, and Installation Standards of Urban Planning Facilities” on November 1, 201, thereby limiting the scope of sports facilities under the National Land Planning Act to sports facilities, etc. installed in the public sector, including the State or local governments.

(4) Even if the Plaintiffs, as alleged, invested costs such as service costs for the instant project, etc., prior to the announcement of the instant urban management plan, the portion of the costs incurred in requesting approval of the management plan of the development restriction zone or in proposing the instant urban management plan is relatively large.

Furthermore, to reflect Plaintiff’s understanding after the enactment of the instant urban management plan, the Defendant was undergoing written consultations and related meetings for at least four months with Plaintiff Ringle Construction Co., Ltd., and actively presented alternatives such as allowing Plaintiff Ringle Construction Co., Ltd to operate arboretums or forest recreation facilities on the site of the instant project, or exchanging the site of the instant project with other land in Incheon City or selling it at Incheon City. The Defendant appears to have conducted the instant procedure in consideration of not only the public interest to be protected but also the private interest infringed upon by the Plaintiffs.

(5) It cannot be deemed that there is little possibility for the Defendant to realize the creation of a forest resort park, which is promoted in place of the instant project.

D. Such determination by the lower court is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the discretionary limit of administrative plans, the withdrawal of beneficial administrative acts, and the deviation and abuse of discretion, or by exceeding the bounds of the principle of free evaluation

2. As to the third ground for appeal

A. In general in administrative legal relations, in order to apply the principle of protecting trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the subject of trust to an individual; second, the public opinion statement of an administrative agency should be justified and trusted; third, the individual should have trusted that opinion statement; third, the administrative agency should have conducted any act in violation of that opinion statement; fourth, the administrative agency should have made a disposition contrary to that opinion statement, thereby infringing on the interests of the individual who trusted that opinion statement. If any administrative disposition satisfies these requirements, it is unlawful (see Supreme Court Decision 2006Du10931, Jan. 17, 2008, etc.).

B. The lower court determined that the instant disposition did not go against the principle of trust protection, on the grounds that it is difficult to view that the Defendant had expressed a public opinion on the maintenance of the instant urban management plan or the implementation of the instant project by the Plaintiffs, and that, in general, a specific person’s expectation interest in the continuation of the existing administrative plan cannot be given priority over the public interest in changing the administrative plan.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Intervenor, and the remainder is assessed against the losing party, including the part arising from the third party intervention. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)