(영문) 부산지방법원 2009.3.26.선고 2008구합3020 판결

On June 11, 2008, the part concerning the attached land (hereinafter referred to as the "land in this case") among the designation of an urban development zone, which the defendant decided on June 11, 2008 to the plaintiffs, shall be revoked.

Reasons

1. Details of the disposition;

A. The Defendant, on November 29, 2006, announced the designation and announcement of an urban development zone to extend the area of an urban development zone to 50,010 square meters on October 10, 2007, by the Busan Metropolitan City’s announcement No. 2006-414 on November 29, 2006, the designation and announcement of an urban development zone was made to extend the area of an urban development zone to 50,010 meters on October 10, 2007, and publicly announced the alteration of the designation of an urban development zone by the Busan Metropolitan City’s announcement No. 2008-13 on January 9, 2008.

B. On June 11, 2008, the defendant extended the size of the above urban development zone from 50,010 to 65,790§¯, and changed the designation purpose of the urban development zone to "in order to prevent more efficient creation of tourism and resort complex, hot spring, lodging, etc. using the local special color of the shipping unit, and to prevent the sleepization of surrounding areas," and publicly announced the alteration of designation of the urban development zone (hereinafter referred to as the "disposition") and the alteration of the development plan (hereinafter referred to as the "the revised development plan") to change the implementation period and implementation method of the urban development project, the land use plan and the infrastructure plan to change the urban development zone (hereinafter referred to as the "disposition of this case").

[Ground of recognition] Unsatisfy, entry of Gap evidence 3, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition shall be null and void or revoked, as there are significant and apparent defects as follows:

(1) Under Articles 3 and 4 of the Urban Development Act, a designating authority shall establish a development plan before designating an urban development zone. The instant development plan is not established because the plan for financing, environmental review, and disaster impact review have not been conducted, and the instant development plan is not established. Ultimately, the instant disposition was made without establishing the development plan. Accordingly, there is a significant and apparent defect in violation of Article 4 of the Urban Development Act.

(2) The instant urban development project becomes an implementer only formally, and actually entrusts a private business entity with the project. This is a grave and apparent defect as it deviates from Article 11 of the Urban Development Act, which strictly limits an implementer of an urban development project to the State or a local government, etc.

(3) The instant land owned by the Plaintiffs is not essential to carry out the instant urban development project, and the instant urban development project is not in public interest and thus cannot justify the Plaintiffs’ infringement of property rights. Therefore, the instant disposition is unlawful.

(b) Related statutes;

Urban Development Act

Article 2 (Definitions) (1) The definitions of terms used in this Act shall be as follows:

1. The term "urban development zone" means a zone designated and publicly notified pursuant to Articles 3 and 9 to implement an urban development project;

2. The term "urban development project" means a project implemented to build a complex or city having functions, such as residence, commerce, industry, distribution, information and communications, ecology, culture, health and welfare, etc. in an urban development zone. Article 3 (Designation, etc. of Urban Development Zones)

(1) When a planned urban development is deemed necessary, any of the following persons may designate an urban development zone. In such cases, when the area of an urban development zone to be designated exceeds that prescribed by Presidential Decree, approval from the Minister of Land, Transport and Maritime Affairs

1. Special Metropolitan City Mayor, Metropolitan City Mayors, Do Governors, and Special Self-Governing Province Governors (hereinafter referred to as "Mayor/Do Governor");

2. A Si in which a non-autonomous Gu is established under Article 3 (3) of the Local Autonomy Act (hereinafter referred to as "large City Mayor"). Article 4 (Formulation and Alteration of Development Plans)

(1) Where a person who designates an urban development zone (hereinafter referred to as "rightholder") pursuant to Article 3 intends to designate an urban development zone, he/she shall formulate an urban development project plan (hereinafter referred to as "development plan") for the relevant urban development zone: Provided, That where he/she designates an urban development zone in an area prescribed by Presidential Decree, he/she may formulate

Article 5 (Contents of Development Plans)

(1) Each development plan shall include the following matters: Provided, That matters falling under subparagraphs 13 and 14 may be included in a development plan after the designation of an urban development zone:

1. The name, location and area of the urban development zone;

2. Objectives of designating an urban development zone and implementation period for an urban development project;

3. Where an urban development project is implemented by dividing an urban development zone into at least two project implementation districts, matters concerning the division of such district;

Matters concerning an implementer of an urban development project;

5. Methods of implementing urban development projects;

6. Plan for accommodation of population;

7. Land utilization plan;

8. Traffic control plan;

9. Plans for environmental conservation; 10. Plans for installation of health, medical and welfare facilities;

11. A plan to establish major infrastructure, such as roads, water supply and sewerage systems;

12. Financing plan;

13. Where infrastructure shall be built in an area outside an urban development zone, a plan to bear expenses incurred in building such infrastructure;

14. Where there are rights, other than ownership, to the land, buildings or articles fixed on the land subject to expropriation or use, mining rights, fishing rights, and rights to use water (hereinafter referred to as "land, etc."), a detailed list thereof; 15. Other matters prescribed by Presidential Decree.

Article 7 (Hearing Opinions of Residents, etc.) (1) Where the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor or a large city Mayor intends to designate an urban development zone (excluding cases of designating an urban development zone upon request from the head of a Si/Gun/Gu which is not a large city mayor), or the head of a Si/Gun/Gu who is not a large city Mayor intends to request the designation of an urban development zone, he/she shall hear opinions from residents, relevant experts, etc. through public perusal or public hearings, and if deemed reasonable, reflect

Article 8 (Deliberation, etc. by Urban Planning Committee)

(1) Where a designating authority intends to designate an urban development zone or formulate a development plan pursuant to the proviso to Article 4 (1), it shall undergo deliberation by the Central City/Do Planning Committee under Article 106 of the National Land Planning and Utilization Act, a City/Do Urban Planning Committee under Article 113 of the same Act, or a large city planning committee established in a large city after consulting with the heads of relevant administrative agencies. The same shall also apply to revisions: Provided, That the same shall not apply

Article 9 (Public Notice, etc. of Designation of Urban Development Zones) Where a designating authority designates an urban development zone or formulates a development plan pursuant to the proviso to Article 4 (1), it shall publicly announce it in the Official Gazette or Official Gazette, as prescribed by Presidential Decree, the designating authority which is a large city mayor shall make relevant documents available to the public for inspection, and the designating authority which is not the large city mayor shall send copies of relevant documents to the head of the Si (excluding the large city mayor)/Gun/Gu having jurisdiction over the relevant urban development zone, and the Governor of the Special Self-Governing Province and the head of the Si (excluding the large city mayor)/Gun/Gu in receipt of relevant documents shall make the relevant documents available to the public for inspection. The same shall also apply to any modification made. Article 46 (Method, etc.

(4) In any of the following cases, an implementer may supply developed land, etc. by means of a private contract, notwithstanding paragraph (2):

6. The procedures and methods determined by Ordinance of the Ministry of Land, Transport as an implementer falling under Article 11 (1) 1 through 3 of the Act requires complex and three-dimensional development for urban development in an urban development zone.

Cases of supplying land to selected persons;

Article 7 of the former Enforcement Rule of the Urban Development Act (wholly amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 0053 of September 22, 2008) (Matters to be included in the development plan)

"Other matters determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs" in Article 7 (1) 11 of the Decree means a welfare facility plan and a disaster prevention plan.

Article 19-2 (Supply of Land to Complex Development Implementers)

(1) Where a person to be supplied with land by free contract pursuant to Article 46 (4) 6 of the Decree (hereinafter referred to as "combined development implementer"; and including a person who intends to be a project implementer by establishing a corporation) is selected, he/she shall comply with the following procedures and methods:

1. Public offering shall be publicly announced on the following matters at least once in a daily newspaper with a nationwide or mainly distributed area, and the period for subscribing for public offering shall be at least 90 days:

(a) Current status of land subject to public contest;

(b) Qualifications and schedule for participation in the competition;

2. The implementer shall organize a committee for deliberation on selection comprised of experts in each field and select a complex developer after evaluation;

3. Other matters necessary for the composition, evaluation criteria, method of selection, conclusion of agreements, etc. of the Selection Deliberative Committee shall be determined by the implementer, and the evaluation criteria shall be disclosed to the general public.

(1) Determination on the first argument

Pursuant to Articles 3(1), 4(1), and 5(1) of the Urban Development Act and Article 7 of the former Enforcement Rule of the Urban Development Act (wholly amended by Ordinance of the Ministry of Strategy and Finance of September 22, 2008), the person authorized to designate an urban development zone shall formulate a development plan before the designation of the urban development zone, and the development plan shall include a funding plan, environmental preservation plan, and disaster prevention plan. In full view of the purport of the arguments in Eul evidence 11, the Defendant’s investment in the development plan formulated before the designation of the urban development zone of this case as its own funds of Busan Urban Corporation, which is a project implementer, in the development plan of this case from 2007 to 205,940,000,000 won, including the funding plan, weather, climate and energy, soil and ground, water circulation, landscape, green area, landscape, living form, animals, plants, leisure space, and major measures to minimize damage from a flood conservation project due to a plan to reduce damage and damage.

It can be recognized that a disaster prevention plan was included in the above facts. In light of the above facts, a financing plan, an environmental preservation plan, and a disaster prevention plan are specifically formulated, and the neighboring urban development zone of this case is all constructed buildings, and the natural environment is not preserved as it is, and a development plan established before the designation of an urban development zone is a usual plan for the use of the land in question, and a detailed examination of the problems that may arise in relation to buildings, etc. to be developed on the site is conducted again at the time of implementation plan and building permission that are conducted after the development plan. Therefore, there was no examination of the impact on the surrounding natural environment, such as the white president, etc. in the development plan of this case, and there was no examination of environmental impact, environmental impact assessment, environmental conservation plan, and disaster prevention plan. Therefore, the plaintiffs' above assertion is without merit.

(2) Judgment on the second argument

살피건대, 구 도시개발법 시행령(2008. 9.18. 대통령령 제21019호로 전부개정되기 전의 것, 이하 '구 도시개발법 시행령'이라 한다) 제46조 제4항 제6호, 구 도시개발법 시행규칙(2008. 9. 22. 부령 제0053호로 전부개정되기 전의 것, 이하 '구 도시개발법 시행규칙'이라 한다) 제19조의2에 의하여 시행자는 도시개발사업으로 조성된 토지.를 일정한 절차를 거쳐 복합개발시행자에게 수의계약을 통한 방법으로 제공할 수 있는바, 다툼없는 사실에 변론 전체의 취지를 종합하면 원고는 구 도시개발법 시행규칙 제19조의2의 절차에 따라 2007. 6. 민간사업자를 공모하여 2007. 11. 2. 사업후보자로 ♥♥'을 선정하고 같은 해 12. 18. 위 사업자와 사업협약을 체결한 사실이 인정되는바, 피고가 도시개발사업의 시행자로서 토지를 조성한 후 복합시행자에게 토지를 제공하고 복합시행자로 하여금 그 지상에 건축물을 건축하도록 한 것은 관계법령에 비추어 적법하다고 할 것이고 단순히 피고가 직접 건축물을 건축하지 않을 것이라는 사정만으로 피고가 도시개발법 제11조를 잠탈하여 민간사업자에게 사업 전체를 위탁하였다고 보기는 어렵다. 따라서 위 주장 역시 이유 없다.

(3) Judgment on the third argument

The following circumstances, which can be seen through the overall purport of pleadings, are as follows: ① The land owned by the Plaintiffs is located at the boundary line of the instant urban development zone and the land adjacent to the road, and thus there is a need to be incorporated into the instant urban development zone for the purpose of improving the surrounding areas and constructing the roads; ② The land of this case is already developed to a certain extent, and the natural environment is not the area preserved as it is; ② the land of this case cannot be said to be the area where a small restaurant and telecom, etc. are mixed, and the development project of a tourist resort is promoted according to the development plan prior to the disposition of this case, the land of this case is more likely to go behind without harmony with the surrounding buildings; ③ The urban development project of this case is designed to revitalize the regional economy efficiently by efficiently developing the abandoned area without a long period of time; ③ Even if the main part of the land use plan is a tourist facility, the public interest of the project can be sufficiently recognized, and the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects applies to the above land, without any need of the Plaintiffs.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.