Plaintiff (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Ansan City (Law Firm Doll, Attorneys Lee Man-han, Counsel for defendant-appellant)

March 30, 2012

Suwon District Court Decision 201Guhap4795 Decided September 7, 2011

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of excluding the order of priority in the installation of gas stations in a development restriction zone against the Plaintiff on November 30, 2010 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows, except for the dismissal of not more than two-(c) of the reasons for the judgment of the court of first instance as follows. Thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

"C. Determination"

1) The premise for the determination

A) The statutes applicable to the instant disposition

According to Article 20(2) of the Road Act, higher-tier roads in the jurisdiction of the Special Metropolitan City, Metropolitan City, Special Self-Governing Province, or Si shall be the management authority of the Special Metropolitan City, Metropolitan City, Special Self-Governing Province, or City Mayor. According to Article 64(3) of the Road Act, in the case of national highways to which Article 20(2) of the Road Act applies, matters necessary for the standards, procedures, etc. for permission to connect roads with other roads, passages, and other facilities shall be prescribed by the ordinance of the local government to which the management authority of the roads belongs. Thus, the higher-tier roads, which are the road sections of this case, are higher-tier roads with Ansan City and within the jurisdiction of the management authority of Ansan City, and matters concerning connection between roads and other roads of this case, which are the Ordinance of the Ministry of Land, Transport and Maritime Affairs (hereinafter referred to as the "Ordinance on Connection with Roads, etc."), rather than the "Rules on Connection with Roads, etc." (hereinafter referred to as the "Road Connection Ordinance").

Nevertheless, under Article 6 subparag. 6 of the Road Connection Rule (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 282 on September 15, 2010, which was in force at the time of the instant disposition, the Defendant’s failure to know the fact that the provision number was changed to Article 6 subparag. 6 of the Road Connection Rule before the amendment was erroneous. However, Article 6 subparag. 7 of the Road Connection Rule and Article 6 subparag. 6 of the Road Connection Rule was enacted upon delegation of Article 64 of the Road Act and Article 6 subparag. 7 of the Road Connection Rule at Ansan-si and Ansan-si, respectively.

B) Legal nature of disposal related to permission for construction in a development restriction zone

In principle, an act of constructing a building, installing a structure, changing the form and quality of land, etc. is prohibited in a development restriction zone for the purpose of designation of a zone. However, in specific cases, such act may be exceptionally permitted if it does not violate the purpose of designation of a zone. Meanwhile, exceptional permission for the construction, etc. of a building in a development restriction zone is beneficial to the other party and constitutes discretionary act. Thus, insofar as the determination by an administrative agency on such determination does not constitute misconception of facts, violation of the principle of proportionality and equality, and violation of purpose, etc., it cannot be deemed as a deviation or abuse of discretionary authority (see, e.g., Supreme Court Decision 2003Du7606, Jul

C) Issues of the instant case

As one of the reasons for exclusion from the person to be selected as the priority in the installation of gas stations in the instant arrangement plan, the Defendant included the case in which gas stations are to be installed in a position inconsistent with the Road Connection Rules, and based on which the instant site section among the instant road sections falls under Article 6 subparagraph 6 of the Road Connection Rules (as seen earlier, Article 6 subparagraph 6 of the Ordinance on Road Connection in Ansan City and hereinafter referred to as “the ground for the instant disposition”).

Therefore, the issue of the instant disposition depends on whether the Defendant’s determination of whether the instant part of the instant road section among the instant road sections constitutes the prohibited section of permission for road connections as provided in Article 6 subparag. 6 of the Ordinance on Road Connection in Ansan-si, Ansan-si, and thus, should be examined as follows.

2) Of the instant road sections, whether the instant application section is prohibited from connecting roads

A) Interpretation of the scope of application of Article 6 subparagraph 6 of the Ordinance on Road Connection in Ansan-si

Article 6 subparagraph 6 of the Ordinance on Road Connection in Ansan-si stipulates that "the section where the convenience facilities for residents, such as bus stops and side roads, cannot be installed or relocated to be installed, may cause danger to the passage of residents," as one of the prohibited sections for road connection.

However, with regard to the scope of application of the above provision, it is a question whether it is necessary to transfer the road section only if the residents' convenience facilities are installed in any road section intended to connect, or if it is not necessary to move it even if the facilities for the convenience of the residents are installed, it is not the prohibited section of the road connecting permission under the above provision.

As the Ordinance on Road Connection was enacted on April 2, 2010 and promulgated on April 2, 2010, and the defendant asserted, there is no separate legislation regulating the matters related to the connection of other roads, etc. on the roads managed by Ansan-si, notwithstanding the delegation of the Road Act, and in this case, it has been possible to connect roads through the permission of the occupation and use of the road only when it is determined that there is no risk of traffic accident without impeding the flow of traffic through traffic impact assessment, etc., and the Ordinance on Road Connection in Ansan-si is intended to connect other roads, passage, and other facilities in accordance with Article 64 of the Road Act by prescribing the permission criteria, procedure, installation standards, and other necessary matters to ensure the safe and smooth flow of traffic and to preserve the road structure. Considering the fact that the Ordinance on Road Connection in Ansan-si is intended to connect the road section to which the residents' convenience facilities are to be installed regardless of the necessity of the transfer of the facilities for convenience, if it is impossible to move it, it is not reasonable to interpret it as the prohibition section on road connection.

Therefore, considering the degree of restrictions on the function of existing convenience facilities due to road connection, the degree of influence of nearby road connection, and the degree of danger resulting from the passage of road users, it is not interpreted that the road section constitutes a prohibited section of road connection permission stipulated in the Ansan City Road Connection Ordinance, solely on the ground that there is convenience facilities for residents in the road section which connects other roads, etc. and it cannot be moved, even if there is no need to move convenience facilities for residents.

B) In the case of the instant application section among the road section,

Based on the above interpretation, we examine the part of the application site of this case among the road sections of this case.

(4) The following circumstances, which can be acknowledged by comprehensively considering the overall purport of arguments, including the entry and exit of the above sections No. 13, No. 18, and No. 18, and No. 1, and No. 2, can be seen as having been installed at intervals of 1.5m or 2m to the site of this case and the width of 5m or wider (hereinafter referred to as the “instant e.g., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e., the current e.

Therefore, even if the instant map is installed in the instant road section among the instant road section, which is a convenience facility for residents, it is not necessary to replace the instant map due to the installation of the said Jin and Access Road.

Therefore, among the road sections of this case, the part of the application site of this case cannot be seen as the prohibited part of the road connecting permission under Article 6 subparagraph 6 of the Ansan-si Road Connection Ordinance.

3) Sub-decisions

Therefore, on a different premise from the interpretation of Article 6 subparagraph 6 of the Ordinance on Road Connection in Ansan-si, the instant disposition that deemed that the instant part of the instant road section among the instant road section constitutes the prohibited section of permission for road connection under the said provision is unlawful due to misunderstanding of facts or misunderstanding of legal principles, and thus, by abusing or abusing discretion.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted with due reasons, and since the judgment of the first instance is unfair with different conclusions, the plaintiff's appeal is accepted and the judgment of the first instance is revoked, and the disposition of this case is revoked.

Judges Kim Jong-chul (Presiding Judge)