Song Park (Attorney Park Jong-sung et al., Counsel for the defendant-appellant)

Sung-nam Market (Law Firm Dasan, Attorney Don-ju, Counsel for defendant-appellant)

February 21, 2013

Suwon District Court Decision 201Guhap3983 Decided March 8, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

On August 31, 2010, the Defendant revoked the designation of ○○ Cemetery Park Urban Planning Facility Project Operator and the revocation of the authorization of the implementation plan against the Plaintiff on August 31, 2010.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the instant disposition

The court's reasoning for this part is as follows: (a) the first instance court's decision among the reasons for the first instance court's decision; (b) the second part of the second part's "No. 11, 209" "No. 17, 2009; (c) the part of the fourth part's "No. 16," "No. 2, 209"; (d) the part of the fourth part's "No. 6, 2009" "No. 9, Dec. 7, 2009; (d) the part of "No. 1 through 5, 9, 11, 12, 29 (including each number)," with "No. 1 through 5, 9, 11, 12, 29 (including each number)," with the first part of the second part's "No. 2, 29, 37, and 37 (including each number No. 4, 2009)" with the second part of the judgment.

2. Judgment on the defendant's main defense

A. The defendant's assertion

With respect to the cancellation of the instant disposition, the Defendant claimed that the period of implementation of the instant disposition was determined as “by November 30, 2010,” and that, as long as the said period of implementation has already expired, it is impossible to implement the instant disposition in accordance with the instant disposition even if the disposition was revoked, so there is no benefit in the protection of rights to seek cancellation of the instant disposition.

B. Determination

(1) Relevant legal principles

A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by removing the state of illegality caused by the illegal disposition, and protecting or remedying the rights and interests infringed or interfered with the disposition. Thus, even if the cancellation of the illegal disposition is impossible to restore it, in principle, there is no benefit to seek the cancellation if it is impossible to restore it to the original state. However, even if the restoration of basic rights is impossible through the cancellation of the illegal administrative disposition, if there is an incidental legal benefit to protect it, the benefit to seek the cancellation still is recognized (see Supreme Court Decisions 2003Du5402, Sept. 9, 2005; 2007Du13487, Jan. 30, 2009, etc.).

On the other hand, an implementer of an urban planning facility project under Article 86 of the National Land Planning and Utilization Act shall file an application for adjudication on acquisition of land owned by another person or expropriation of land required for an urban planning facility project under a private contract within the project implementation period specified in the authorization of an implementation plan for an urban planning facility project publicly notified at the latest. If such acquisition procedure is not prior to the project implementation period, the authorization of an implementation plan for the urban planning facility project shall be deemed null and void only for a part of land that has not been acquired before the expiration date of the implementation period, even if there is no partial abolition or alteration of the implementation plan (see Supreme Court Decisions 97Nu2191 delivered on December 26, 1997; 200Du1706 delivered on November 13, 2001).

(2) Determination

As of the date of the closing of argument in this case, it is clear that the project implementation period stipulated in the original disposition in this case had already lapsed. However, according to the facts cited earlier, evidence and evidence Nos. 28 and 29, etc., the plaintiff submitted to the defendant on October 15, 2010, prior to the expiration of the above project implementation period, that "the decision on the original disposition in this case shall be postponed until the plaintiff's decision on administrative disposition in this case" without explicitly refusing the request, and the above request for administrative appeal was dismissed as of December 30, 2010, it cannot be seen that the above original disposition in this case had already been invalidated after the lapse of 7 years prior to the expiration of the original disposition in this case's initial disposition in this case's initial disposition in this case's initial disposition in this case's initial disposition in this case's previous 20 years prior to the expiration of the project implementation period in this case's initial disposition in this case's previous 30 years prior to the expiration of the original disposition in this case's initial disposition in this case's final disposition.

3. Judgment on the merits

A. The cited part of the judgment of the court of first instance

This Court's reasoning is as follows: (a) the Plaintiff's assertion, (b) the Defendant's assertion, and (c) related statutes are identical to the corresponding part of the first instance court's decision (as stated in the corresponding part of the first instance court's decision No. 9:6-12, and 3); (c) thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 4

B. Of the instant disposition grounds, the determination on “sper to or to be made”

(1) Relevant legal principles

The term "ex officio revocation of an administrative disposition" means an independent administrative disposition that is taken by a competent administrative agency, such as the relevant disposition agency, in principle, retroactively lose its legal effect on the ground that there is a defect in the establishment of an effective administrative disposition. In light of the rule of law and the principle of suitability of law, etc. of the administration, the administrative agency in question has the authority to cancel the administrative disposition by itself, even if there is no separate and explicit provision (see Supreme Court Decision 2001Du9653, May 28, 2002, etc.).

However, in the case of illegal beneficial administrative disposition, the cancellation may be restricted in relation to the other party's trust, and if the request of the suitability of the administrative disposition is more than the other party's trust protection, the revocation may be restricted. However, if the original administrative disposition is due to the other party's improper method or incomplete application, etc., and if the other party knew of or was negligent in gross negligence, the other party to the original administrative disposition's illegality or gross negligence, the other party to the original administrative disposition can not be deemed to have trust to protect the disposition (see Supreme Court Decision 2009Du1068, May 14, 2009, etc.). Furthermore, when the necessity of public interest for the cancellation or the protection of a third party's interest needs to be protected, the administrative agency may cancel it ex officio (see Supreme Court Decision 2009Du1068, May 14, 2009, etc.).

Meanwhile, if the defect of the beneficial administrative disposition is due to the concealment of the other party's fact or the incomplete application in an essential point, etc., the other party can expect the possibility of revocation because it can be seen that the other party could have known that the profit from the disposition was illegally acquired. Thus, even if it was not considered by the administrative agency, it is not an abuse of discretion, but an incomplete application, etc. in the above other party's fact concealment or essential point was made in a passive and passive manner, rather than an active method such as the above other party's fact concealment or the incomplete application, etc., and it cannot be viewed differently. Further, the other party cannot be seen that the defect of the administrative disposition against the disqualified person is cured since the other party newly satisfied the qualification requirements necessary for the pertinent beneficial administrative disposition (see, e.g., Supreme Court Decisions 94Nu6529, Jan. 20, 195; 95Nu4926, Jul. 28, 1995; 208Du6868, Nov. 28, 2098).

(2) Whether the initial disposition in this case violates Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act

(A) As to the standard point of time to determine the defect of the original disposition in the instant case

Unless there are special circumstances in rendering dispositions upon application, administrative agencies shall render dispositions based on statutes and basic facts at the time of permission, not at the time of application (see Supreme Court Decision 2004Du2974, Aug. 25, 2006, etc.). Thus, in a case where an applicant for a certain administrative disposition satisfies the requirements for permission, etc. at the time of application, if the applicant fails to meet the requirements for permission, etc. due to changes in statutes or facts before permission, etc. is granted, administrative agencies should refuse permission, etc. in principle.

However, Article 86(7) of the National Land Planning and Utilization Act provides that “A person who is not the State or a local government, etc. intends to be designated as an implementer of an urban planning facility project shall meet the requirements prescribed by Presidential Decree concerning the size of the land (excluding State or public land) subject to the urban planning facility project and the ratio of the landowner’s consent.” Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act provides that “The requirements prescribed by Presidential Decree in Article 86(7) of the National Land Planning and Utilization Act refer to the ownership of the land (excluding State or public land) equivalent to at least 2/3 of the size of the land (excluding State or public land) subject to the urban planning facility project (hereinafter “requirements for ownership”) and the consent of at least 1/2 of the total number of landowners shall be obtained (hereinafter “requirements for consent”), and it seems necessary to respect the landowner’s intent if the change in rights or any change in circumstances occurred, as far as possible after the application for authorization is made after the application for the designation and implementation plan for the urban planning facility project.

(B) As to whether the Plaintiff met the Plaintiff’s ownership requirements at the time of the original disposition in this case

On the other hand, the issue of whether the requirements for designating urban planning facility project implementer under the provisions of related Acts and subordinate statutes, such as Article 96(2) of the Enforcement Decree of the National Land Planning Act, among the requirements for the designation of urban planning facility project implementer, should be determined on the basis of whether a person who wishes to be designated as a project implementer completed the registration of the relevant land under his/her own name. As asserted by the Plaintiff, deeming that the concept of de facto ownership can be recognized in the sense that there is no particular obstacle to the transfer of the relevant land, and the determination of whether the requirements for ownership can be met on the basis of such recognition can be made on the basis of the concept of de facto ownership is not only inconsistent with the language and text of the above related Acts and subordinate statutes under the current Civil Act adopting the form of real right change, but also cannot be accepted as an interpretation that is likely to clarify the legal relationship in the implementation of an urban planning facility project where many interested parties have different understanding and exist (Therefore, the Plaintiff’s assertion that

However, with respect to the land included in the instant project site at the time of the original disposition (hereinafter “instant land”), the Plaintiff’s registration of ownership transfer was not completed in the future, and only as recognized earlier, that all third parties, such as the Plaintiff’s representative, Nonparty 1, etc. were owned with respect to the instant land. Therefore, the Plaintiff did not meet the requirements for ownership as of the time of the original disposition.

(C) As to whether the Plaintiff met the requirements for consent at the time of the original disposition in this case

In addition, according to the facts and evidence cited earlier, Gap evidence Nos. 47 and Eul Nos. 29 (the Serial number omitted; hereinafter the same shall apply) and the purport of the whole pleadings, the plaintiff, at the time of the application of this case, shall be deemed to have obtained the consent of at least 1/2 of the total number of owners of the land of this case excluding the state-owned land (the land of this case) 15, under the premise that the total number of owners of the land of this case excluding the State-owned land (the land of this case) 1 through 14 was 15, and the consent of at least 1/2 of the above 8 (the non-party 1, the incorporated foundation, the non-party 3, 4, 5, 6, 7, and 8) was not changed until the time of the original disposition after the determination of the urban planning of this case. However, in the case of the land of this case, the plaintiff did not obtain the consent of the owner of the above 13, 13, 14, and 150.

Therefore, as of the time of the initial disposition in this case, the plaintiff cannot be deemed to meet the consent requirement under Article 96 (2) of the Enforcement Decree of the National Land Planning and Utilization Act.

(D) Sub-committee

Ultimately, even though the Plaintiff could not be deemed to meet the requirements for ownership as well as the consent at the time of the original disposition in this case, the original disposition in this case, which was made by the Defendant’s public official without properly verifying the requirements, is designated as an urban planning facility business entity without satisfying the requirements under Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act, and there is

(3) Whether the disposition of this case is unlawful based on the “responding or breathing” grounds for the above disposition

In light of the above legal principles and comprehensives of the following circumstances, which can be seen by the statements in Gap evidence and evidence Nos. 47, Eul evidence No. 43, 44, and 46, the original disposition of this case cannot be deemed to have any reason attributable to the plaintiff that the plaintiff trusted that the original disposition of this case was legitimate. Moreover, as seen in the disposition of this case, there is a need for public interest to justify the violation of the benefits to be suffered by the plaintiff due to the cancellation of the original disposition of this case where defects that the plaintiff did not meet the requirements for ownership and consent, as seen in the disposition of this case. Thus, the above disposition of this case based on the grounds for "a

① As seen earlier, the National Land Planning Act provides that a private person, other than the State or a local government, or a public institution prescribed by the Enforcement Decree of the National Land Planning and Utilization Act, shall own land equivalent to at least 2/3 of the site area of an urban planning facility project and obtain the consent of at least 1/2 of the landowners. Designation of an urban planning facility project implementer and authorization of an implementation plan therefor is a disposition that establishes an authority to implement the relevant urban planning facility project with respect to the said project implementer. The status of an administrative entity that is able to exercise public authority over certain matters, such as the right to expropriate land necessary for the relevant project within the scope of implementation of an urban planning facility project is granted (see, e.g., Supreme Court Decision 93Nu2430, May 24, 1994) and that an administrative agency, other than the State, obtained the consent of at least 2/3 of the owners of the land within the relevant site and obtained the consent of at least 1/610 of the owners of the land, and thus, it can be deemed that the consent of at least 201/61.

② Prior to the initial disposition of this case, Nonparty 16, at the request of the Park, the competent department of the original disposition of this case, examined the application for designation of the project implementer, implementation plan, land record, etc. submitted by the Plaintiff through the application of this case, and notified Nonparty 1 of the opinion that “it shall meet the requirements of Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act to obtain designation as the project implementer” as the consultation with the above park and the above park, and that “it shall not meet the requirements of Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act to obtain designation as the project implementer,” which is deemed to have been submitted to the Plaintiff at least 7 percent of the total number of the land transferred to the Plaintiff at the time of the initial disposition of this case (see, e.g., evidence No. 4, record No. 143, Dec. 4, 2009). It appears that consultation with the above urban planning was not submitted to the Plaintiff at the time of the initial disposition of this case.

③ In addition, an urban planning facility project under the National Land Planning Act aims to promote public welfare and improve the quality of life of the people by installing, maintaining, or improving urban planning facilities, such as roads, parking lots, transportation facilities, crematory facilities, cemeteries, and charnel facilities, etc., such as public health and sanitary facilities. As seen earlier, an urban planning facility project operator itself has a strong public nature. As such, an urban planning facility project operator obtains a kind of right in public law, which can restrict another person’s property rights guaranteed by the Constitution through the right to expropriate a project site through authorization of the implementation plan. As such, the designation of an urban planning facility project operator or its authorization, etc. is deemed to be fair through legitimate procedures based on the relevant law, as well as the public interest need to prevent illegality in the process of such designation as the project operator, etc., and the Plaintiff appears to have completed the transfer registration of ownership only in the future about some of the instant land after the initial disposition of this case, and to be justified by the Defendant to the extent that it would not be justified after the first 20th decision of the Supreme Court.

④ Meanwhile, the Plaintiff asserted to the effect that, inasmuch as Nonparty 17, who is the public official of the Defendant Park and Nonparty 17, etc., own no less than 2/3 of the instant land in the name of Nonparty 1, the Plaintiff expressed to the Plaintiff that the Plaintiff satisfies the requirements for designation of the instant project implementer, such as ownership requirements. However, as long as all the evidence, such as Nonparty 18’s testimony, submitted by the Plaintiff, including Nonparty 18, is explicitly owned by the Plaintiff prior to the instant original disposition, it is insufficient to acknowledge that the Plaintiff publicly announced that the Plaintiff satisfied all the requirements for designation as the project implementer, etc. of the instant land, such as ownership requirements, as long as the Plaintiff explicitly owned the land in the name

⑤ Furthermore, with respect to the land registered in the name of Nonparty 1 among the instant land, the Plaintiff appears to have satisfied the ownership requirements even if the Plaintiff secured ownership in the name of Nonparty 1, as long as it did not transfer ownership in the name of Nonparty 1. Nevertheless, the reason why the Plaintiff sought to transfer the Plaintiff’s future registration on the land of Nonparty 1, 2, and 3, which is part of the instant land, is not for filing the instant application, but for the purpose of transferring the land equivalent to the fundamental property of the incorporated foundation in the future of the Plaintiff (as alleged by the Plaintiff, No. 9 of preparatory brief No. 2013, Jan. 4, 2013), the Plaintiff could not be deemed to have satisfied the requirements for cancellation of the Plaintiff’s original disposition on the land of this case under the name of Nonparty 1, not for Nonparty 1, but for the mere reason that the Plaintiff owned more than 2/3 of the instant land in the name of Nonparty 1, the Plaintiff could not be deemed to have satisfied the requirements for cancellation of the Plaintiff’s request through the National Land Planning Plan.

(4) The theory of lawsuit

Therefore, the instant disposition is lawful on the ground that the Plaintiff failed to meet the requirements for designation of a project implementer under Article 96(2) of the Enforcement Decree of the National Land Planning Act. Ultimately, the Plaintiff’s claim seeking revocation on the ground that the Plaintiff’s ground for disposition was unlawful on the premise that the instant ground for disposition was not a legitimate ground for disposition. In short, the Plaintiff’s claim seeking revocation on the ground that the instant disposition was unlawful on the ground that the instant ground for disposition was not a legitimate ground for disposition.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge)