[1] The case affirming the judgment below which held that the head of a Gun's return of a proposal for the formulation of an urban management plan concerning aggregate facilities for residents who own land, etc. within the urban management planning zone constitutes an administrative disposition subject to appeal

[2] The meaning of “private charnel facility provided for the general use” under Article 142 subparag. 3 of the “Rules on the Determination, Structure and Standards of Urban Planning Facilities”

[3] The case holding that the judgment below erred in the misapprehension of legal principles in holding otherwise, although it cannot be deemed that charnel facilities of a religious nature for a climatics, etc. constitute “a charnel facility provided for the general use” as stipulated in Article 142 subparag. 3 of the Rules on the Determination, Structure and Establishment Standards of Urban Planning Facilities, and it does not constitute an “a charnel facility provided for the general use”

[1] The case holding that since the head of a Gun entrusted with the authority to formulate an urban management plan for charnel facilities, etc. by the Metropolitan City Mayor pursuant to Article 139 (2) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) and the ordinances of local governments enacted based thereon are the authority to formulate an urban management plan under his/her jurisdiction, a disposition of the head of a Gun who rejected a draft of an urban management plan concerning charnel facilities for residents who own land, etc. within the urban management plan constitutes an

[2] In full view of the contents of relevant statutes, such as Article 43(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009), and Article 35(1) of the Enforcement Decree of the same Act, a private charnel facility may be determined as an urban planning facility only in the case of “a charnel facility provided for the general use.” Furthermore, where infrastructure is determined as an urban planning facility, the implementor of the relevant urban planning facility project shall be granted the authority to expropriate or use the land or buildings necessary for the project (Article 95(1) of the former National Land Planning and Utilization Act), exemption from the application of some provisions on the restriction on the area of permission for conversion of mountainous districts (Article 18(3)3 of the Enforcement Rule of the Mountainous Districts Management Act), and it is reasonable to interpret that “a private charnel facility is subject to the public interest of Article 142 subparag. 1 and 2 of the Regulations on the Determination, Structure, and Establishment of Urban Planning Facilities” as the subject of discrimination under Article 13 subparag.

[3] The case holding that the court below erred in the misapprehension of legal principles in holding otherwise on the ground that most of the facilities are scheduled to be provided to be used by the readers or their families, etc. and the facilities scheduled to be provided for the use by the general public other than the readers are not merely 2.4-5.4%, and that the charnel facilities do not constitute “a charnel facility providing for the use of the general public” under Article 142 subparag. 3 of the Rules on the Determination, Structure and Establishment Standards of Urban Planning Facilities, and it does not constitute “a charnel facility providing for the use of the general public” under Article 142 subparag. 3 of the Rules on the Determination, Structure and Establishment Standards of Urban Planning Facilities.

[1] Article 2 (1) 1 of the Administrative Litigation Act, Article 139 (2) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) / [2] Article 43 (1) and (2) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009), Article 35 (1) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21807 of Nov. 2, 2009), Article 6 (1) 9 and (2) 5 of the former Enforcement Rule of the National Land Planning and Utilization Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 160 of Aug. 19, 2009), Article 38 (1) and (3) 4 of the Enforcement Rule of the Mountainous Districts Management Act / [Article 38 (1) and 4 of the Enforcement Rule of the Management Act]

[Defendant-Appellee] The Head of Si/Gun/Gu Office

Ulsan Metropolitan City Head of Ulsan Metropolitan City (Government Law Firm Corporation, Attorneys Gu Chungcheong-gu et al., Counsel for the defendant-appellant)

Busan High Court Decision 2009Nu5565 decided February 5, 2010

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

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

According to the reasoning of the judgment of the court below, the court below acknowledged facts as stated in its reasoning after citing the reasoning of the judgment of the court of first instance. In light of the provisions of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009; hereinafter “National Land Planning Act”) and the purport of guaranteeing the property rights of individuals under the Constitution, the court below determined that the defendant is the drafting authority of the urban management plan regarding the site of this case, and that the plaintiff is a resident who owns land, etc. in the urban management plan area, and has the right to request the formulation of the urban management plan concerning the aggregate facilities of this case, and thus, the defendant's disposition of this case which rejected the plaintiff's drafting proposal constitutes an administrative disposition subject to appeal litigation, and on the other hand, even if the plaintiff failed to achieve the purpose of the decision of the urban management plan of this case after the date, it was irrelevant to the existence

In light of the relevant legal principles, records, and Article 139(2) of the National Land Planning and Utilization Act, and Article 58(1) of the former Urban Planning Ordinance of Ulsan Metropolitan City (amended by Ordinance No. 1091, Nov. 5, 2009) which delegates the authority to formulate an urban management plan for charnel facilities, etc. of Ulsan Metropolitan City Mayor to the head of the Gu/Gun, the above fact-finding and judgment of the court below are just and acceptable. Furthermore, even if the aggregate facilities of this case can not be determined as urban planning facilities as alleged in the grounds of appeal, this is merely a matter to be considered in the determination on the merits, and thus, it cannot be deemed that the defendant's disposition of this case cannot be deemed as an administrative disposition subject to an appeal litigation, or that there is no benefit in the lawsuit of this case. Furthermore, as long as the judgment of the court below by the defendant is justifiable, the defendant's rejection of the proposal of the urban management plan of this case by the drafting authority of the above urban management plan cannot be accepted.

The court below did not err in the misapprehension of legal principles as to the right to apply for draft, disposition and benefit of lawsuit, or in the misapprehension of legal principles as alleged in the grounds of appeal.

2. As to the fourth ground for appeal

Article 43 (1) of the National Land Planning and Utilization Act provides that "where an infrastructure is to be constructed, the type, name, location, scale, etc. of such infrastructure shall be determined by an urban management plan in advance: Provided, That this shall not apply to cases prescribed by Presidential Decree in consideration of the characteristics, etc. of the specific use area, infrastructure, etc.," Article 35 (1) of the Enforcement Decree of the same Act provides that "cases prescribed by Presidential Decree" in the proviso to Article 43 (1) of the Act refers to cases falling under any of the following subparagraphs, and subparagraph 2 (c) of the same Article provides that "where an infrastructure prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs is to be installed in an area other than urban areas and district unit planning zones," and Article 6 (2) 5 and (1) 9 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 160, Aug. 19, 2009) provides that "a charnel facility installed by a person other than the Special Metropolitan City Mayor, the head of a Si, or the head of an enshrinement facility" (hereinafter referred to “1”)

In full view of the contents of such laws and regulations, in cases of private charnel facilities, it can be determined as urban planning facilities only in cases falling under “a charnel facilities provided for the general use,” and in cases where the infrastructure is determined as urban planning facilities, the executor of the urban planning facility project shall be granted the authority to expropriate or use the land, buildings, etc. necessary for the project (Article 95(1) of the National Land Planning Act), and the authority and benefits under Article 18(3)3 of the Enforcement Rule of the Mountainous Districts Management Act are granted, such as exemption from the application of some provisions on the restriction on the area of permission for conversion of mountainous districts (Article 18(3)3 of the Enforcement Rule of the Mountainous Districts Management Act). In light of the fact that subparagraphs 1 and 2 of Article 142 of the Regulations of the Urban Planning Facilities stipulate an enshrinement facility with high public interest established and operated by the State or the Mayor/Do Governor, and the head of the Si/Gun/Gu, it shall be interpreted that “private charnel facilities provided for the general use” under Article 142 subparag.

Based on the reasoning of the judgment of the court of first instance, the court below rejected the Defendant’s assertion on the ground that the Plaintiff’s application site of this case, which is the site for the instant charnel facilities, is up to 107,495 square meters, and it is possible to convert mountainous districts into a size not exceeding 30,000 square meters pursuant to the relevant provisions of the Mountainous Districts Management Act, the Enforcement Decree of the same Act, and Article 18(1) of the Enforcement Rule of the same Act, so permission for conversion of mountainous districts is not allowed per se for the instant site for which the instant application site was filed, and therefore, the disposition of this case, which returned the Plaintiff’s proposal for drafting the urban management plan to install the instant charnel facilities, is legitimate. According to Article 18(3)3 of the Enforcement Rule of the Mountainous Districts Management Act, where a mountainous district is diverted to install urban planning facilities, etc. pursuant to the National Land Planning and Utilization Act, the disposition of this case is not reasonable, and thus, it is unlawful.

However, according to the reasoning of the judgment below and the records, the charnel facilities of this case were implemented by the plaintiff based on the "Convention on the Creation of the Memorial Park" entered into with the Ulsan National Association of the Ulsan National Association of the Ulsan National Cemetery. It is expected that most of the facilities will be provided by the plaintiff for the use by the readers or their family members of Busan, Daegu, Daegu, Pohang Port, and Youngcheon, which is adjoining to the Ulsan National Association of the Ulsan National Park Promotion Committee. The facilities expected to be provided for the use by the general public is merely 2.4 to 5.4% of all the facilities scheduled to be provided for the use by the non-Gu senior citizens. Thus, in light of the above legal principles, the above nature of the charnel facilities of this case cannot be deemed as falling under the "a charnel facilities provided for the use of the general urban planning facilities" under Article 142 subparagraph 3 of the Rules of the Urban Planning Facilities, and thus, they cannot be determined as urban planning facilities. However, the court below rejected the defendant's assertion that the above disposition of this case was unlawful on the ground of appeal.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)