[1] Whether a prior decision on a housing construction project plan under Article 32-4 of the Housing Construction Promotion Act is discretionary (affirmative)

[2] The case holding that a disposition by the head of a local government who rejected an application for prior determination of a housing construction project plan for the land located in the mountain village within a development restriction zone is justifiable

[3] The meaning and legal nature of urban planning

[4] Whether the administrative entity has the discretion in formulating and determining an urban planning (affirmative), and the meaning of the principle of proportionality to be considered in such a case

[5] The case holding that a decision to alter an urban planning of 6 meters wide on the land in question is based on the necessity of public interest, and it does not go against the principle of proportionality or the principle of equality and not abuse or abuse of discretionary power

[1] Approval of a housing construction project plan under Article 33(1) of the Housing Construction Promotion Act is a so-called beneficial administrative disposition that is subject to the discretion of an administrative agency, and therefore, prior decision of a housing construction project plan under Article 32-4(1) of the same Act is also an act of discretionary discretion. Thus, the prior decision of the housing construction project plan that intends to obtain prior decision is also in violation of the restrictions stipulated by the relevant Acts and subordinate statutes, and even in the absence of such restrictions, the disposal authority may refuse the prior

[2] The case holding that the disposition of the head of the local government, who rejected an application for prior decision on the housing construction project plan of the above company, is not a deviation or abuse of discretionary authority, in light of the following: (a) the pertinent land is located in the mountain village where a mountain village is located in the development-restricted zone; (b) the development of a small-scale housing complex rather than a high-rise apartment complex can be in harmony with the surrounding environment or scenery; and (c) the view on the adjacent right road being opened can be secured; and (d) the local government head promoted the cadastral publication work for developing the whole land in dispute as a small housing complex by entrusting the service company specialized in urban

[3] The urban planning is a discretionary act that sets the standards for activities to realize certain order at a certain point in the future by integrating and coordinating administrative means related to each other in order to achieve specific administrative goals such as construction, maintenance, improvement, etc. of a city based on the professional and technical judgment on urban policies, and thus, it cannot be deemed unlawful in the determination of the urban planning unless there is any deviation or abuse of discretionary power.

[4] Although the administrative body has a relatively wide range of planning discretion in formulating and determining a specific urban planning, there is a restriction that the interests of the persons related to the urban planning should be fairly compared and calculated among the public and private interests as well as between the public and private interests. Thus, in a case where the administrative body fails to maintain the balance of interests in formulating and determining the urban planning, or omits any matters to be included in the subject to consideration of the balance of interests, or where the balance of interests lacks legitimacy and objectivity, the decision of the administrative plan can be deemed an illegal disposition that deviates from and abused discretion, and in addition, the means to achieve the administrative purpose under the principle of proportionality (the principle of proportionality) should bring about the effectiveness, reduction and minimum infringement as much as possible, and should not be capable of public interest that is intended to infringe upon by introducing the means.

[5] In light of the purpose of the Urban Planning Act, which contributes to the sound development of the city and contributes to the promotion of public safety and order and public welfare, the case holding that the decision is not a deviation or abuse of discretionary power, and it is not against the principle of proportionality or the principle of equality, even if the decision to revise the urban planning of 6 meters wide on the land in question is based on the necessity of public interest, and it is recognized that it is appropriate, necessary and reasonable for the administrative purpose, and considering the legal interest, etc. of individuals who are likely to be infringed thereby.

[1] Articles 32-4(1) and 33(1) of the Housing Construction Promotion Act, Article 31-3 of the Enforcement Decree of the Housing Construction Promotion Act / [2] Article 27 of the Administrative Litigation Act, Articles 32-4(1) and 33(1) of the Housing Construction Promotion Act, Article 31-3 of the Enforcement Decree of the Housing Construction Promotion Act / [3] Articles 12, 13, 17, and 25 of the Urban Planning Act, Article 27 of the Administrative Litigation Act / [4] Articles 12, 13, 17, and 25 of the Urban Planning Act, Article 27 of the Administrative Litigation Act, Article 37(2) of the Constitution / [5] Articles 12, 13, 17, and 25 of the Urban Planning Act, Article 27 of the Administrative Litigation Act, Article 37(2) of the Constitution

[1] Supreme Court Decision 96Nu16698 delivered on March 14, 1997 (Gong1997Sang, 1140), Supreme Court Decision 96Nu10256 delivered on September 5, 1997 (Gong1997Ha, 3119), Supreme Court Decision 97Nu11966 delivered on November 11, 1997 (Gong1997Ha, 3872) / [3/4] Supreme Court Decision 96Nu8567 delivered on November 29, 196 (Gong197Sang, 210) / [4] Supreme Court Decision 95Nu3831 delivered on December 22, 195 (Gong196Sang, 578) / [197Nu30969 delivered on June 30, 197)

Jeon Young Housing Co., Ltd. and one other (Attorney Ha Young-chul, Counsel for the plaintiff-appellant)

Guang-si Market

Seoul High Court Decision 96Gu7504 delivered on December 3, 1996

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

We examine the Plaintiffs’ grounds of appeal.

1. As to the refusal of prior decision on the housing construction project plan

The approval of a housing construction project plan under Article 33(1) of the Housing Construction Promotion Act is a so-called beneficial administrative disposition, which is subject to the discretion of an administrative agency, and therefore, the prior decision of the housing construction project plan under Article 32-4(1) of the same Act is also discretionary. As such, the prior decision of the housing construction project plan that intends to obtain a prior decision is in conflict with the restrictions prescribed by the relevant Acts and subordinate statutes, and even in the absence of such restrictions, if necessary for public interest, the disposal authority may make a decision of nonpermission on the application for prior decision (see, e.g., Supreme Court Decisions 96Nu10256, Sept. 5, 1997; 97Nu11966, Nov. 11,

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning with regard to the location and status of the land in the dispute in this case, surrounding environment, urban planning conditions, and the scale of the change of form and quality due to the execution of the project in this case, etc., and determined that the defendant's disposition which rejected the plaintiff's prior decision on the housing construction project in this case by requesting the service company specialized in urban planning before filing an application for the aforementioned prior decision on the house in Han Young-gu Co., Ltd. (hereinafter the plaintiff company) to develop the land in this case into a small apartment complex rather than a high-rise apartment complex because the land is located in the village village, in harmony with the surrounding environment or landscape, can be achieved, and it cannot be said that there is no violation of law of deviation or abuse of discretionary power, and there is no error of law by misunderstanding the legal principles as to deviation and abuse of discretionary authority.

In addition, the Supreme Court's ruling that points out the issue is related to the prior decision on a building plan under the Building Act, and thus, it is not appropriate to invoke the case.

2. As to the determination of urban planning and cadastral notice

In order to achieve specific administrative objectives, such as the construction, maintenance, and improvement of cities, based on the professional and technical judgment on urban policies, an act of establishing standards for activities to realize a certain order at a certain point in the future is not illegal unless there is any deviation or abuse of discretionary authority. However, even though the administrative body has a relatively wide range of planning discretion in formulating and determining specific urban planning, there is a limitation that the interests of the persons involved in urban planning should be fairly compared and compared to the public and private interests, as well as the interests of the public and private interests. Accordingly, if the administrative body fails to adopt and determine urban planning, or omits matters to be included in those subject to consideration of the balance of interests and interests, but lacks legitimacy and objectivity, it may be deemed an illegal disposition that deviates from and abused discretionary authority, and the method of achieving the administrative purpose under the principle of proportionality (the principle of proportionality) shall not be deemed to be unlawful (see, e.g., Supreme Court Decision 96Da19699, Feb. 16, 196).

According to the reasoning of the judgment below and the records, in light of the purpose of the Urban Planning Act intending to contribute to the sound development of the city and to promote the public safety and order and public welfare, the land in this case can be deemed appropriate to be developed into a small-scale housing complex in consideration of its location and status, surrounding environment, view condition, etc. In preparation for the above development to take place, it is necessary to secure a resident and vehicle passage and a fire-fighting road on the land above, and accordingly, the defendant has promoted an alteration of urban planning to the purport of newly constructing the above roads on the land in this case before the plaintiff company applied for the above advance decision, and the road planned to be constructed on the above land is a lawsuit with the width of six meters belonging to the small size under the Urban Planning Act, which is defined as the largest size and performs functions to facilitate access to the housing site, and its location and allocation are established in accordance with the standards set by the Enforcement Rules of the Urban Planning Act, and there is no possibility of infringement on the land in this case's area due to the newly constructed plan, but it is reasonable in light of the above principles of interest.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the principle of proportionality and the deviation and abuse of discretionary power.

3. 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 Song Jin-hun (Presiding Justice)