(영문) 울산지방법원 2019.2.14.선고 2018구합5523 판결

On March 4, 200, the part newly established by the Defendant as an amusement park facility (e.g., an amusement park) with respect to the area of 515,00 square meters, which is indicated in the annexed drawing No. 1, in the urban planning determined and publicly announced by the Defendant on March 4, 200, as indicated in the annexed drawing No. 200 - 333.

Reasons

1. Basic facts

A. On March 200, the Defendant made a decision to revise the Ulsan-gun Urban Planning (Renotion) which is an urban planning facility under the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200 and enforced July 1, 200; hereinafter referred to as the “former Urban Planning Act”), including the content that the Defendant would be newly established as an amusement park, and that it included the content that the land of this case was located in the Seoul-gun-gun, Ulsan-gun, Ulsan-do, Seoul-do, the land of 515,500 square meters (hereinafter referred to as the “instant land”). The land of this case was included in the land of this case in the land of this case, which was owned by the Plaintiff 200-33 of the Ulsan-si, Ulsan-do, and the land of this case, which was owned by the Plaintiff 1 and the land of this case in the area of this case.

B. Prior to the instant disposition

1) Pursuant to Article 388 of the former National Land Utilization Management Act (wholly amended by Act No. 4572 of Aug. 5, 1993, which was enforced on Jan. 1, 1994), the land site of this case was changed from "Gyeong land and forest conservation area" to "tourist and recreation area". 2) On June 26, 1987, the Plaintiff obtained approval of the former Tourism Business Act (wholly amended by Act No. 3910 of Dec. 31, 1986, the land site of this case was 529,108 square meters, and the former Enforcement Decree of the Tourism Business Act (wholly amended by Act No. 3910 of Jul. 1, 1987) and the former Enforcement Decree of the Tourism Business Act (amended by Presidential Decree No. 1984 of Jun. 13, 198).

4) On January 1, 1995, the administrative districts of Ulsan-si and Ulsan-si were integrated, and the "Special Urban Planning of Ulsan-si and Ulsan-gun, which was integrated, was included in the designation plan for a tourism complex in the area of the instant site."

5) On December 18, 1998, the instant site was incorporated into the “urban Area” under Article 1998-414 of the Ministry of Construction and Transportation Notice No. 1998-14.

【Uncontentious facts, Gap’s evidence of subparagraphs 1 through 9, Eul’s evidence of subparagraphs 1 through 11 (including branch numbers, if there are branch numbers) and the purport of the whole pleadings

2. Whether the instant disposition is null and void

A. The plaintiff's assertion

The instant disposition is null and void because its defect is serious and apparent for the following reasons.

① The Defendant did not meet the procedural requirements in rendering the instant disposition.

② According to Article 13-3(1) of the former Act on the Utilization and Management of the National Territory (wholly amended by Act No. 6245, Jan. 28, 2000 and enforced on July 1, 2000), the designation of an urban planning zone pursuant to the Urban Planning Act is possible only within an urban area. The instant disposition that sets the site site of this case, which is a tourism and resort area, as an urban planning facility, as an urban planning facility, is in violation of the former Act on the Utilization

③ The instant disposition is null and void since the land use plan was already established in accordance with the approval of the business plan for the tourist-use facility business (general recreation business). Moreover, the instant disposition also violates Article 3 of the former Rules on the Standards for Urban Planning Facilities (wholly amended by Ordinance of the Ministry of Construction and Transportation No. 257 on August 18, 2000, hereinafter referred to as the “Standards for Urban Planning Facilities”).

④ The instant disposition infringed the Plaintiff’s trust that the Plaintiff would promote private business in a single site in accordance with the tourism industry-related Acts and subordinate statutes.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

In full view of the following circumstances recognized as above, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that there is a serious and apparent defect in the disposition of this case, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion is without merit. Therefore, the Defendant appears to have complied with the relevant provisions, such as hearing of opinions and public inspection of residents, and there is no other evidence to deem that there was a defect in the procedure.

2) Unless there is any evidence to deem that the daily price of the instant site was defective in the alteration to the “urban area” on December 18, 1998, the administrative agency may determine and publicly notify another urban planning with respect to the area where the urban planning was already determined and publicly notified, and if there is any content that the subsequent urban planning cannot be compatible with the prior urban planning, the prior urban planning was lawfully modified with the same content as the subsequent urban planning (see Supreme Court Decisions 91Nu1292 delivered on September 22, 1992; 93Nu19047 delivered on May 12, 1995, etc.).

In light of the above legal principles, the Governor (including the head of a metropolitan government) is deemed to have the authority to revise or execute a plan for the creation of tourist resorts, and if there is a change in the urban planning of the pertinent area at the time of the instant disposition (urban planning) by the head of a metropolitan government, it is difficult to conclude that there is a defect in the construction of a tourist-use facility or a new tourist-use facility for the purpose of protecting the Plaintiff’s new tourist-use facility business, including the instant tourist-use facility business plan, on the ground that there is a possibility that there is a change in the urban planning of the pertinent area at the time of granting the approval for the installation of tourist-use facility business to the extent that it is difficult to view that there is a defect in the construction of a new tourist-use facility or that there is a significant and apparent defect in the construction of a tourist-use facility.

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Tae-tae

Judge Al Jae-hun

Judges Kim Dong-dong

Note tin

1) In accordance with the Urban Planning Act, specific development projects shall be governed by the former Tourism Complex Development Promotion Act (the Tourism Promotion Act is wholly amended by the Tourism Promotion Act);

· is deemed to have been promoted in accordance with the abolition.

Site of separate sheet

Attached Table 1

Drawings

A person shall be appointed.

Attached Table 2

Related Acts and subordinate statutes

▣ 구 도시계획법 ( 2000. 1. 28. 법률 제6243호로 전부개정되어 2000. 7. 1. 시행되기 전의 것을 말한다 )

Article 2 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

1. The term “urban planning” means the sound development, public peace and order, and public, of urban communities within the urban planning zones; and

The following plans concerning land use, transportation, sanitation, environment, industry, security, national defense, welfare, culture, etc. for the promotion of welfare:

means.

(a)the designation or alteration of urban planning zones and areas and districts pursuant to Section 2 of Chapter II (Articles 17 through 22);

Medition Plan

(b) Roads, squares, parking lots, automobile depots, railroads, tracks color roads, canals, harbors, airports, green areas, parks, playgrounds, playgrounds amusement parks, observation towers;

The number of public office buildings, schools, libraries, libraries, markets, waterworks, sewerage, utility tunnels, slaughterhouses, cemeteries, crematoriums, and waste disposal facilities of public land.

Oil supply facilities, reservoirs, wind-proof facilities, gas supply facilities, oil storage and oil supply facilities, distribution business facilities, and facilities for supplying oil;

Installation, maintenance, and repair of waterproof facilities, fire prevention facilities, erosion control facilities, heat supply facilities, and other facilities prescribed by Presidential Decree;

Plan on Quantity

(c) Land compartmentalization and rearrangement projects, preparation of a group of housing sites projects, urban districts preparation projects, and preparation or resumption of a group of industrial site preparation projects;

A plan for the development project

2. The term “urban planning zones” means the zones in which the urban planning determined under Article 12 is to be implemented; and

3. The term “urban planning facilities” means the facilities installed under the planning as referred to in subparagraph 1 (b) and (c), which are determined by the urban planning;

of this section.

Article 16 (Installation and Management of Urban Planning Facilities)

(1) The facilities mentioned in Article 2 (1) 1 (b) and (c) shall be installed in the ground space and underground within the urban planning zone.

If it is intended to do so, only the urban planning shall be installed: Provided, That the facilities as prescribed by the Presidential Decree shall be installed.

this paragraph shall not apply.

(2) Structure and installation standards, etc. of facilities under Article 2 (1) 1 (b) and (c) to be installed within the urban planning zone.

Necessary matters concerning the Ordinance of the Ministry of Construction and Transportation shall be determined by the Ordinance of the Ministry of Construction and Transportation: Provided, That other Acts

Order shall be governed by Ordinance.

(3) With respect to the management of facilities installed under paragraph (1), special provisions of this Act or other Acts and subordinate statutes exist.

Where the State is managed by Presidential Decree, or where a local government is managed;

The Municipal Ordinance of the relevant local government shall be prescribed.

▣ 구 도시계획시설기준에 관한 규칙 ( 2000. 8. 18. 건설교통부령 제257호로 전부개정되기 전의 것 )

Article 3 (Determination on Facilities in Area or District)

under the provisions of Articles 17, 18, 20, 20-2 through 20-4, 21 and 22 of the Act;

facilities in the area, district, or district designated shall be determined to be in conformity with the purpose of the designation: Provided, That the area,

Facilities for which standards for determining facilities by district or district are not determined shall be located in the area, district, and district in determining such facilities.

shall not be subject to restrictions on zones;

Article 4 (Scope of Decision on Facilities)

(2) With respect to sports grounds (limited to sports complexes), amusement parks, and distribution business facilities, in order to perform the functions of the relevant facilities.

A decision shall be made, including a creation plan for important facilities to be developed.

Article 46 (Ye Park)

The term "responding park" in these Rules means amusement and resort facilities established to mainly contribute to the improvement of the welfare of citizens.

(u) amusement park means an amusement park;

Article 47 (Criteria for Determination of Amusement Park)

The criteria for determining amusement parks shall be as follows:

1. Having effects of appropriate utilization of vacant land, securing urban spaces, U.S. dollars in urban environments, conservation of the natural environment, etc.;

shall be determined in such a manner as to enable the two.

2. A decision shall be made at a place where the natural environment, such as forests, valleys, lakes, rivers, seas, etc., has a abundant response and change.

3. Consideration of the use of neighboring land to ensure that the area requiring peace is not included in the noise right in the amusement park.

shall be determined only in a general commercial area and a quasi-residential area.

4. It shall be determined alternatively within a distance of one hour by means of public transportation in a downtown, and the access of users;

In order to facilitate this, traffic facilities shall be determined by accessing amusement parks.

5. Large-scale amusement parks used in a large-scale area: Expressway or regions to facilitate access to each area.

A decision shall be made on traffic facilities which can easily connect the daytime road.

6. To determine an area where the supply of electricity and water is easy, and there is no natural risk factor.

7. In addition to the criteria of subparagraphs 1 through 6, matters falling under any of the following subparagraphs shall be taken into consideration in a river:

shall be determined by the court.

(a) The waterside shall not be cut off, and shall be a shot of it completely;

(d) It shall be a place that does not cause any pollution to water sources;

8. The size shall be, depending on the nature and function of the amusement park, appropriate for the size of the amusement park and shall be not less than six thousand square meters.

9. 20/100 of the total building area of an amusement park that may be installed as its amusement park facilities in an amusement park.

A decision shall be made not to impose any tax: Provided, That if the area of an amusement park is less than thirty thousand square meters, the amusement park concerned.

The area shall not be more than 15/100 of the area.

10. Expenses for the area of the amusement park on the aggregate of the above ground total floor areas of a building on which amusement park facilities may be installed within the amusement park.

The percentage shall not exceed 200 percent.

Article 48 (Standards for Establishment of Recreation Park)

(1) Standards for the establishment of amusement parks shall be as follows:

1. A variety of amusement park facilities shall be installed so as to meet the needs of users of various classes;

2. The amusement park facilities shall be installed in such a way as to be accessible for use if there is no distinction between the age floor and gender; and

3. Amusement facilities in a certain area, other than amusement parks, the purpose of which is to make recreation, in order to enhance the efficiency of land utilization.

The facilities shall be installed in a cluster.

4. Facilities that may be installed in amusement parks shall be as follows:

(a) Pest facilities (classified into amusement facilities focused on the use of children's statues and family members): The train for children;

Moved children's automobiles, children's airplanes-free cars, revolving revolving revolvings, electronic amusement rooms, divs and slicks;

Other amusement facilities operated by machinery, etc. of Si stations, etc.

(c) Sports facilities: A land training center, a golf practice range table, a swimming pool, a boat gymnasium, a boat training place, a floating bridge, a floating bridge, a moorings, and strings;

All kinds of sports facilities such as height courts;

(c) Resort facilities: A camping ground for a resort place in a resting room, a lodging facility, a camping ground (including a motor vehicle camping ground), a camping place, or a youth number;

Training Facilities

(d) Special facilities: Performance halls of zoological, botanical gardens, and greenhouse aquariums, performance halls, sculptures, and outdoor music halls, and horse race tracks;

(e) Convenience and management facilities: Road parking lots, cable railing rooms, resting restaurants in resting restaurants, loss of music, public bath, and terminals;

The public notice sign of toilets, the guidance sign of toilets, the financial office and the tourist sign of the public notice office in the public notice office, the photographic pipe, the waste disposal office, pharmacies, and simple medical facilities;

with the approval of a project plan in accordance with the provisions of Article 4 (4) of the Tourism Promotion Act.

The amusement facilities under subparagraph 14 of the attached Table 1 of the Enforcement Decree of the Building Act

(f) Other facilities with similar functions as referred to in items (a) through (e), which are resolved by the Urban Planning Committee.

(2) Where it is deemed particularly necessary in light of the maintenance of order of the amusement park and other circumstances around the amusement park.

Facilities, such as police boxes, shelters, etc., may be installed by including in a development plan for detailed facilities referred to in Article 4 (2).

(3) Paragraph (1) 4 shall apply to an area designated as a tourist resort or a tourist complex among amusement parks under Article 23 of the Tourism Promotion Act.

Notwithstanding the provisions of the Tourism Promotion Act, facilities prescribed by the same Act may be installed.

▣ 구 관광사업법 [ 1986. 12. 31. 법률 제3910호로 전부개정 ( 관광진흥법 ) 되어 1987. 7. 1. 시행되기 전의

[referring to those]

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

4. The term "tourist-use facility business" means a structure and facilities suitable for sports mistakenly, food, drink, recreation, etc. for tourists;

the business as prescribed by the Presidential Decree, which provides tourists with convenience.

Article 18 (Approval of Project Plans)

(1) Any person who intends to operate tourist accommodation business and tourist-use facility business as determined by the Presidential Decree shall obtain construction permission.

the facilities shall be prepared in advance and approved by the Minister of Construction and Transportation: Provided, That the facilities shall be

When a project plan is in conformity with the facility standards determined, approval of the project plan may be granted even after the building permit is granted.

(2) Foreign investment is authorized or borrowed in accordance with the Foreign Capital Inducement Act in order to construct tourist accommodation facilities or facilities for tourists’ use.

Tourist accommodation and tourist use whose registration, cancellation of registration, or registration has been invalidated;

In the case of remodeling, extension, etc. as prescribed by the Ordinance of the Ministry of Construction and Transportation, approval of a business plan under paragraph (1).

need not require.

(3) The Minister of Construction and Transportation shall, upon granting approval under paragraph (1), conduct regional, scale of facilities, details of facilities, supply and demand plan, etc.

It shall be examined whether the project is appropriate for the project concerned.

(4) Where a person who has obtained approval pursuant to paragraph (1) intends to change a business plan or transfer or take over the business.

The Minister of Construction and Transportation shall obtain approval under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation.

(5) Article 4 shall apply mutatis mutandis to approval under paragraph (1).

Article 36 (Guidance Activities)

(2) Tourist associations by area registered under the proviso of paragraph (1) shall be as prescribed by the Ordinance of the Ministry of Construction and Transportation.

The Minister of Construction and Transportation or the Mayor of Seoul Special Metropolitan City/Metropolitan City/Do Governor (hereinafter referred to as the "Do Governor") shall report the fact to the Do Governor.

section 23(3).

Article 46 (Designation of Tourist Destinations)

(1) The Minister of Construction and Transportation may designate a tourist destination after hearing the opinions of the competent Do Governor.

(2) The Governor having jurisdiction over a tourist destination designated pursuant to paragraph (1) shall prepare a plan for the creation of a tourist destination and transport

The approval of the officer shall be obtained. The same shall also apply to any modification thereof.

(3) The Minister of Construction and Transportation shall designate a tourist resort under paragraph (1) or a plan for developing a tourist resort under paragraph (2)

- - In granting approval, prior consultation with the heads of the ministries and agencies concerned shall be made.

(4) The Do governor shall apply the Urban Planning Act to the execution of the plan for creating tourist resorts approved under paragraph (2).

section 22.

(5) The Governor shall install facilities necessary for the development of tourism according to the plan for the creation of tourist resorts within budgetary limits.

(6) A person who wishes to develop a tourist development project, construct construction projects or other facilities in a designated tourist resort shall be the President.

The permission of the Do Governor shall be obtained as prescribed by the Ordinance.

Article 57 (Delegation of Authority)

(1) The Minister of Construction and Transportation shall delegate part of his authority under this Act to the Do governor as prescribed by the Presidential Decree.

may be deemed to have been appointed.

(2) The Do governor shall obtain approval from the Minister of Construction and Transportation for part of the authority delegated under paragraph (1).

shall be re-entrusted to the head of the Gu.

▣ 구 관광사업법 시행령 ( 1987. 7. 1. 대통령령 제12212호로 전부개정 ( 관광진흥법 시행령 ) 되기 전의 것 ) 제14조 ( 권한의 위임 )

(1) Pursuant to Article 57 of the Act, the following authorities of the Minister of Construction and Transportation shall be delegated to Do Governors:

23. Approval of a change in a tourist resort creation plan as referred to in Article 46 (2) of the Act: Provided, That this provision shall be applicable under Article 9 (1) 3;

(1) Change within 20 percent of the total floor space by facility area and facility in the plan for tourist facilities;

limited to this section.

▣ 구 국토이용관리법 ( 1993. 8. 5. 법률 제4572호로 일부개정되어 1994. 1. 1. 시행된 것 )

Article 6 (Contents of National Land Utilization Plan)

The national land utilization plan shall determine the following plans for designating a specific use area:

1. Urban area: Construction, maintenance, improvement, etc. of the relevant area under the urban planning under the Urban Planning Act;

area and prearranged area, national industrial complex, local industrial complex, electric power resource development area and prearranged area (water power generation power plant)

An area which has been developed or is to be developed as the site for alteration facilities: hereinafter the same shall apply).

2. Quasi-urban area: The collective living basis of the residents who need the utilization and development of land corresponding to the urban area, and national leisure;

Prior use and tourism and recreation facility site, agro-industrial complex, collective cemetery, and other various facility site, etc. for the tourist and recreation business.

Area used or to be used;

3. Agricultural and forest areas: areas for promoting agriculture and forestry, and preserving forests, such as agriculture promotion areas, reserved forests, etc.;

4. Quasi-agricultural and forest areas: Promotion of agriculture and forestry, and conservation of forests, etc. as farmland and quasi-preserved forests, etc. in areas other than agricultural promotion areas

and may be used for development purposes;

5. Natural environment conservation areas: Preservation of natural scenery, water resources, coastal ecosystems, and cultural heritage assets, and the protection and fostering of fishery resources.

such an area as required; and

A Addenda Act No. 4572, Aug. 5, 1993

Article 1 (Enforcement Date)

This Act shall enter into force on January 1, 1994.

Article 2 (Transitional Measures Following Alteration of Classification of Specific-Use Area)

At the time this Act enters into force, the right of the following table determined and publicly notified by the previous Articles 6 and 9 and other Acts:

A special-purpose area, special-purpose district, partition, etc. in partitions shall be determined and publicly announced as a special-purpose area in the left partitions on the enforcement date of this Act:

shall be deemed to have become effective.

A person shall be appointed.

▣ 구 국토이용관리법 시행령 ( 1993. 12. 28. 대통령령 제14034호로 일부개정되어 1994. 1. 1. 시행된 것 ) 제7조 ( 용도지역의 세분등 )

In a case where the Minister of Construction and Transportation dividess the specific-use area under Article 9 of the Act, it shall be as follows:

1. Quasi-urban districts shall be subdivided into the specific use district which falls under each of the following items:

(a) Community district: Construction of the housing and its week, which are or are to be utilized as the collective basis for living of the residents;

A district in need of planned development for the installation of production facilities, etc. for welfare facilities or increase of income for the public;

(b) A sports and recreational district: A tourism in which sports, recreational facilities, natural scenery, cultural properties, etc. for the purpose of helping people enjoy leisure;

Tourist and resort business under the Tourism Promotion Act as an area where facilities for visitors are or shall be collectively formed.

Facilities, sports facilities under the Installation and Utilization of Sports Facilities Act, juvenile training facilities under the Framework Act on Juveniles, etc.

district in need of planned development for the establishment of such district

(d) Facility site district: A site for agricultural and industrial complex and other facilities (excluding factory sites more than those as determined by the Ordinance of the Ministry of Construction and Transportation);

District in need of planned development for purposes of

2. Campaign required for the conservation and fostering of fishery resources from among natural environment conservation areas, if necessary.

Waters or land adjacent thereto may be subdivided into a fishery resources preservation zone.

The Presidential Decree No. 14034, Dec. 28, 1993

(1) The enforcement date)

This Decree shall enter into force on January 1, 1994.

(2) Transitional measures concerning the subdivision of quasi-urban areas)

Article 2 of the Addenda to the Act, such as a special-purpose area or special-purpose district determined and publicly announced pursuant to the previous provisions at the time this Decree enters into

The division, etc. of special-purpose areas, special-purpose districts, etc. in the right partitions of the following areas deemed quasi-urban areas:

On the enforcement date of the Decree, it shall be deemed that the special purpose district is subdivided into the left part of the following table and is determined and announced and its effect has occurred:

A person shall be appointed.