Whether the right to apply for the abolition of an urban planning may be recognized to a private person in a case where the infringement of property rights continues to take place by continuing the decision of an urban planning facility as a result of a change in circumstances, even though the public interest factor to justify the infringement of private interests, which was originally planned in the decision of an urban planning facility,

The determination of urban planning facilities with respect to land owned by a private person is a unilateral administrative disposition by an administrative agency that has the effect of regulating individual and specific rights and interests of the owners of such land, but the public interest factor to be protected and sought such as balanced development of urban areas is superior to the private interest factor of the protection of property rights of the owners of such land. Where special circumstances arise to deem that the public interest factor, which is the premise of causing infringement upon private interests after the determination of the plan, has disappeared after the determination of the urban planning facilities, the determination of urban planning facilities becomes void after the determination of the urban planning facilities becomes invalid at the time of the determination of the urban planning facilities. However, in light of Articles 20 and 41 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning Act, Act No. 6655 of Feb. 4, 2002) to prevent adverse effects caused by the continuation of urban planning facilities for a long time, the determination on urban planning facilities cannot be amended or abolished by the abolition of the duty to protect property rights of the parties to the urban planning facilities.

[1] Articles 20, 23, 41, and 98 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 202)

Park Jong-il and one other (Attorney Ahn Jong-chul, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor

1. On August 1, 2002, the defendant revoked a disposition rejecting an application for the determination or abolition of an urban planning facility (passenger stop) with respect to 1,298 square meters in total, 38 square meters in Geumcheon-gu, Geumcheon-gu, Seoul.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

Basic Facts

The following facts are without dispute between the parties, Gap evidence 1, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 5, Eul evidence 6, Gap evidence 7, Gap evidence 8, Gap evidence 9, Gap evidence 10, Gap evidence 12, Gap evidence 13, Gap evidence 14, Gap evidence 18, Eul evidence 1, Eul evidence 2, Eul evidence 5, Eul evidence 6, Eul evidence 7, Eul evidence 8, Eul evidence 10, Eul evidence 12, Eul evidence 13, Eul evidence 14, Eul evidence 14, Eul evidence 15, Eul evidence 15, Eul evidence 12, Eul evidence 14, Eul evidence 15, and the purport of the whole pleadings can be acknowledged.

On August 17, 1982, the plaintiffs leased 1,626 square meters (the total area on the register is 1,639 square meters; hereinafter referred to as "land before the division") owned by the plaintiffs to the public interest transportation company (hereinafter referred to as "public interest transportation") as the bus stop in Geumcheon-gu Seoul Metropolitan Government. He requested the defendant to determine urban planning facilities (passenger's automobile depots) so that the land before the division can be used as the urban bus stop, and the defendant made a decision on December 17, 1982 on urban planning facilities (passenger's automobile depots) with respect to the land before the division, and then pointed out as the notification of Seoul Metropolitan Government No. 528.

After that, when the lease contract with the plaintiffs on the land prior to subdivision expires due to the expiration of the expiration of the lease contract with the plaintiffs, it purchased another land and applied for the determination of urban planning facilities with respect to the land to be used as a new bus stop to the head of the Guro-gu in around 1990, and at the same time, to abolish the urban planning facilities with respect to the land prior to subdivision. The head of Guro-gu made a public announcement of the abolition of the determination of urban planning facilities with respect to the land prior to subdivision, and made a request for the closure of the urban planning facilities to the defendant. The defendant also reviewed the urban planning plan connecting the land prior to subdivision with the existing road, and

After that, 341 square meters of the land before the said partition is divided into an urban planning road (numbering to 38-8 parcel numbers in Gasan-dong), and only 1,298 square meters of the said land before the said partition remains as an urban planning facility (hereinafter “instant land”). However, the Plaintiffs refused to accept the donation of the land incorporated into the said road and received the land compensation, and the procedure for the abolition of the said urban planning facility was no longer progress.

After that, on October 10, 2001, the plaintiffs filed an application for the same contents with the head of Geumcheon-gu Office on the abolition of urban planning facilities (passenger automobile depots) regarding the land in this case on several occasions. On January 19, 2002, the head of Geumcheon-gu presented the defendant's opinion that the change of urban planning facilities decided to be the bus garage for the plaintiffs on January 19, 2002 shall be careful until the public truck depot development project is completed and the change of the urban bus garage policy is made available for the purchase or lease of the urban bus company. In consideration of the future traffic policy including the trend of urban bus development in the future, there was the defendant's opinion to allow the purchase or lease of the urban bus company and contribute the land to be incorporated into the public truck depot development project, and since compensation for the land and road construction are completed thereafter, it is possible to contribute the paid compensation to the defendant and consult with the related departments.

On July 1, 2002, the plaintiffs filed an application with the defendant for the abolition of urban planning facilities (passenger's automobile depots) on the instant land. On August 1, 2002, the defendant sent a reply to the plaintiffs on August 1, 2002 that the head of Geumcheon-gu Office should prior to the enactment of the alteration (Abolition) of urban planning facilities (automobile depots) by the head of Geumcheon-gu in accordance with the urban planning procedures. On the request of the head of Geumcheon-gu Office to make a decision after the formulation of the alteration of urban planning facilities, the Geumcheon-gu Office should make a decision (including the alteration and abolition) through the procedures, such as the deliberation of the Urban Planning Committee (Article

Judgment on this Safety Defense

In order to become an administrative disposition subject to appeal, the defendant must have the right under the law or sound reasoning to demand the plaintiff to take administrative action following the plaintiff's application. If the defendant refuses to accept the plaintiff's application without such a ground, this does not affect the plaintiff's right or legal interest, and thus, it cannot be deemed an administrative disposition. Since the Urban Planning Act does not allow a private person to claim the abolition of the urban planning, nor does it be recognized as a cooking, the plaintiff has no right to file an application for cancellation of the determination of the urban planning facility with the defendant. Since the defendant merely inform the plaintiffs of the urban planning formulation and procedure, etc., it cannot be deemed a rejection disposition, the lawsuit of this case is not an

Therefore, in order to achieve specific administrative goals such as construction, maintenance, improvement, etc. of a city based on a professional and technical judgment on administration, it is established as an activity criteria for realizing a certain order at a certain point in the future, and its long-term and comprehensive elements are established as an essential element.

However, the determination of urban planning facilities with respect to land owned by a private person is a unilateral administrative disposition by an administrative agency that brings about the effects of individual and specific regulation of the rights or legal interests of the land owners, but the public interest elements that should be protected and sought such as balanced development of urban areas are superior to the private interest elements of protecting the property rights of the land owners, and the determination of urban planning facilities is obtained with respect to the infringement of property rights according to the balancing of interests that the public interest elements that should be protected and sought is superior to the private interest elements of protecting the property rights of the land owners. Where special circumstances arise, the determination of urban planning facilities becomes void after the determination of the plan, while the determination of urban planning facilities becomes void after the determination of the urban planning facilities

However, Article 20 of the Urban Planning Act provides that, in order to prevent adverse effects caused by the long-term continuation of urban planning, an administrative agency which is the authority in charge of the formulation and decision of urban planning may propose matters concerning the installation, maintenance, and improvement of urban planning facilities to the administrative agency which is the authority in charge of the formulation and decision of urban planning, and the administrative agency in receipt of the proposal shall notify the proposer of the results of its disposal. Article 41 of the Urban Planning Act provides that, where an urban planning facility project is not implemented until 20 years have passed since the date of public notice of the decision of urban planning facilities, if the public interest factor that justify the infringement of private interests as originally planned in the decision of urban planning facilities is extinguished due to changes in circumstances, and where the decision of urban planning facilities continues to exist without modification or abolition, it is possible to specifically apply for the abolition of the decision of urban planning facilities or to the party against whom the infringement of legal interests or infringement of rights due to the continuation of the decision of urban planning facilities becomes extinct in accordance with the purport of the above provision and the purport of property right protection provision

Therefore, as acknowledged earlier, the determination of urban planning facilities as to the land prior to the instant subdivision was made according to the application of the determination of urban planning facilities for the purpose of using the land prior to the instant subdivision as a bus stop. However, interest transportation by around 190, after obtaining the determination of urban planning facilities (passenger automobile depots) around 190, the instant land was not used as a bus stop and the instant land was unlikely to be used as a passenger automobile depots because the area was reduced compared to the land prior to subdivision as at the time of the instant determination of urban planning facilities, compared to the land prior to subdivision as at the time of the instant determination of urban planning facilities. The head of Guro-gu requested the Defendant to abolish the determination of urban planning facilities prior to the instant subdivision, on the premise that the Defendant, instead of determining the abolition of urban planning facilities as to the land prior to the instant subdivision, provided that there is no need for the Plaintiff’s ex post facto abolition of the determination of urban planning facilities (the same shall apply to the instant land) to consider the donation of the land to be incorporated into the roads prior to the instant subdivision.

In addition, according to the provisions of Articles 23 (Decision Authority of Urban Planning), 98 (Delegation and Entrustment of Authority), and Article 68 (Delegation of Authority) of the Seoul Metropolitan Government Ordinance on Urban Planning, the notification of the fact that urban planning cannot proceed without a direct action by the Mayor/Do Governor has already been made by the head of Guro-gu with respect to the land in this case, and the plaintiffs applied again for the abolition to the head of Geumcheon-gu on October 19, 2001. The head of Geumcheon-gu Office decided that the plaintiffs' initial contact or request by the head of Si/Gun can be delegated to the head of the Si/Gun/Gu as prescribed by the Ordinance of the City/Do. Accordingly, the authority of the Mayor/Do governor to request the head of the Si/Gun/Gu to determine various urban planning facilities such as transportation facilities, urban space facilities, public and cultural facilities shall be, in principle, delegated to the Mayor/Do governor with the authority to formulate the above Ordinance on Urban Planning, and the authority of the defendant to request the head of the Si/Gun/Gu to abolish the above Ordinance on the urban planning facilities.

Therefore, the defendant's above defense cannot be accepted.

Judgment on the merits

The plaintiffs' assertion

The determination of urban planning facilities on the instant land was aimed at using interesting transportation as a bus stop, but since the interesting transportation transferred from the instant land to another place in around 1990, it was no longer used as a bus stop and has been left unattended until now. Thus, the determination of urban planning facilities on the instant land should be abolished as changes in the circumstances, despite the fact that the determination of urban planning facilities on the instant land should be abolished as a change in the circumstances, it was unlawful for the Defendant to refuse the application of the instant application

Maz.

As acknowledged earlier, the determination of urban planning facilities as to the land prior to the initial subdivision of this case was made upon the application of the determination of urban planning facilities to use the land prior to the subdivision of this case as a bus stop. The interest transportation is intended to abolish the land incorporated into the site of this case by obtaining the determination of urban planning facilities for other land around 1990, and the land of this case is used as a passenger automobile depots or does not carry out an urban planning facilities project in accordance with the determination of the above urban planning facilities until 10 years have passed since it was later, compared with the land prior to the subdivision of this case at the time of the determination of urban planning facilities, it is unclear whether the implementation of the above urban planning facilities project is to be implemented in the future because it is inappropriate to use the land as the passenger automobile depots due to the reduction of the area due to the construction of roads in comparison with the land prior to the subdivision at the time of the determination of the urban planning facilities in this case. On the other hand, it appears that there is no need for the Plaintiffs to abolish the urban planning facilities project due to the alteration of circumstances and there is no need to maintain the land.

4. Conclusion

Therefore, since the defendant's rejection disposition of this case is illegal, the plaintiff's claim of this case seeking its revocation is justified, and it is decided as per Disposition by the assent of all participating Justices.

Judges Mag-Jon (Presiding Judge)