Whether an act of recommending submission of requirements, facts, or means of offence and defense, which a court did not assert by a party in an administrative litigation, violates the principle of pleading, and goes beyond the limit of the exercise of right to know (affirmative)

Articles 8(2), 26 [Liability for Certification], and 27 of the Administrative Litigation Act / [Administrative Litigation Trial], Article 136 of the Civil Procedure Act

Supreme Court Decision 98Du2768 delivered on March 23, 2000 (Gong2000Sang, 1067) Supreme Court Decision 2003Du32 Delivered on April 23, 2004

Plaintiff 1 and four others (Law Firm Sejong, Attorneys Lee Gyeong-hee et al., Counsel for the plaintiff-appellant)

Pohang District Urban Development Association (Law Firm Jungwon, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2017Nu6373 decided January 26, 2018

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the remaining plaintiffs' grounds of appeal except the plaintiff 1

A. (1) Article 4(4) of the Urban Development Act provides, “A person who designates an urban development zone shall obtain the consent of at least 2/3 of the land size of the area to which replotting method applies and the consent of at least 1/2 of the total number of land owners in the area where replotting method is applied, and the same shall apply to an amendment of a development plan to implement a replotting method, but the same shall not apply to an amendment to minor matters prescribed by Presidential Decree. As a result of delegation, Article 7(1) of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 28459, Dec. 5, 2017; hereinafter the same shall apply) provides, “A minor change shall be deemed an amendment to an urban development project that does not fall under any of the following subparagraphs.” Article 4(2) of the same Act provides, “In consultation on the environmental impact assessment under the Environmental Impact Assessment Act, a traffic impact analysis and improvement plan under the Urban Traffic Improvement Promotion Act, or an amendment to a development plan that reflects the results of prior review under the Countermeasures Act.”

2) In interpreting the above Urban Development Act, the lower court rejected the Plaintiffs’ assertion that: (a) the development plan was modified without the landowner’s consent under Article 4(4) of the Urban Development Act on a different premise, on the ground that: (b) where the total project cost of the urban development project is increased by at least 10/100, and (c) where the total project cost of the urban development project increases by at least 10/100, the total project cost of the urban development project does not constitute an alteration of minor matters; and (d) the development plan was modified without the landowner’s consent under Article 4(1) of the former Enforcement Decree of the Urban Development Act without the landowner’s consent, even if the total project cost has increased by at least 10/100; and (e) the designation disposition of the land reserved for replotting based thereon is unlawful.

3) Examining the reasoning of the lower judgment in light of the content, structure, and legislative intent of the relevant provisions, the lower court did not err by misapprehending the legal doctrine on landowners’ consent under Article 4(4) of the Urban Development Act, contrary to what is alleged in the grounds of appeal.

B. 1) In an administrative litigation, barring special circumstances, an administrative agency should assert and prove the legality of an administrative disposition. However, as long as the principle of ex officio is still based on the principle of pleading even if in an administrative litigation, the person seeking the revocation thereof is still based on the principle of pleading, the person who seeks the revocation thereof should first assert specific facts constituting an illegal cause except for the matters to be examined ex officio. The exercise of the court’s right of explanation is based on: (a) giving the parties an opportunity to correct and supplement the inconsistency in the assertion, or to point out the incomplete and unclear parts in order to clarify the matter; and (b) urging them to submit evidence of the dispute. Accordingly, soliciting the submission of evidence by suggesting the requirements for legal effect which the parties did not assert, or the means of attack and defense, goes against the principle of pleading and goes beyond the bounds of the exercise of the right of explanation (see Supreme Court Decision 2003Du32, Apr. 23, 2004, etc.).

2) According to the records, the Plaintiffs asserted that the lower court’s alteration of the development plan causing an increase of more than 10/100 of the total project cost constitutes a significant alteration of the matters, and thus, they should obtain consent from landowners pursuant to Article 4(4) of the Urban Development Act. The Plaintiffs did not make any assertion as to the specific cause causing an increase in the total project cost, and what constitutes under each subparagraph of Article 7(1) of the former Enforcement Decree of the Urban Development Act.

3) Therefore, even if the lower court did not urge the Plaintiffs to assert and prove the increase in total project cost, or whether it falls under any of the subparagraphs of Article 7(1) of the former Enforcement Decree of the Urban Development Act, the lower court did not err by failing to exhaust all necessary deliberations in violation of the duty to exercise the right to ask for Elucidation, as alleged in the grounds of appeal.

2. As to the plaintiff 1's appeal

Plaintiff 1 did not submit the appellate brief within the deadline for submitting the appellate brief, and did not state the grounds for appeal in the petition of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)