[1] The case holding that a public hearing held by the Memorial Park Construction Promotion Council in its name to hear the opinions of the residents of the candidate site in the course of selecting a cemetery park and a crematorium candidate site shall not be held to comply with the procedures stipulated in the Administrative Procedures Act

[2] Whether a Mayor/Do Governor should first establish a mid- and long-term plan for the supply and demand of funeral facilities within his/her jurisdiction in accordance with the Act on Funeral Services, Etc. (negative)

[3] Whether a development restriction zone management plan under the former Act on Special Measures for Designation and Management of Development Restriction Zones should be established to determine urban planning facilities within a development restriction zone (negative)

[4] Whether a decision on urban planning facilities to establish cemeteries, parks, and crematoriums within a development restriction zone violates the purpose of designation of the development restriction zone (negative)

[5] Whether the basic urban planning stipulated in Article 19(1) of the former Urban Planning Act and the urban planning ordinance of the local government have a direct binding force on the administrative agency (negative)

[6] The meaning of the administrative plan and the limitation of discretion on the decision of the administrative plan by the administrative body

[1] The case holding that a public hearing held under the name of the Memorial Park Construction Promotion Council, which is a consultative body created jointly by Seoul Special Metropolitan City, non-profit corporations, general enterprises, etc., in the course of selecting a candidate for a cemetery park and a crematorium, is not a public hearing held by an administrative agency in order to hear the opinions of the residents of the candidate site, since it is not a public hearing held by the administrative agency in the process of determining urban planning facilities, it

[2] Article 5 of the Funeral Services, etc. Act and Article 3 of the Enforcement Decree of the same Act provide that a Mayor/Do Governor shall establish a mid- and long-term plan for the supply and demand of cemeteries, crematoriums, and charnel facilities within his/her jurisdiction, and the head of a Si/Gun/Gu shall establish a mid- and long-term plan for the supply and demand of cemeteries, crematoriums, and charnel facilities within his/her jurisdiction in accordance with a plan for supply and demand of cemeteries, etc. of City/Do. Thus, for the smooth supply and demand of funeral facilities, a local government is obligated to establish such plan for the purpose of securing funeral facilities in advance within his/her jurisdiction. Thus, the Mayor/Do Governor cannot interpret that the said plan should be established first in order to install individual funeral facilities, and it cannot be said that the Mayor/Do Governor violates the authority of the head of a Si/Gun/Gu to establish the plan by installing individual funeral facilities without establishing the said plan

[3] Article 10 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 6655 of Feb. 4, 2002) provides that a Mayor/Do Governor having jurisdiction over a development restriction zone shall present the basic goal and direction of the management of the development restriction zone, examine whether urban planning facilities are located in the development restriction zone, and establish a management plan every five years to ensure that the comprehensive management of the development restriction zone is not impeded. Thus, a management plan of the development restriction zone should not be established in advance to determine urban planning facilities within the development restriction zone only

[4] Development restriction zones are designated by the necessity to restrict urban development in order to prevent any disorderly expansion of cities and preserve the natural environment surrounding cities to ensure the healthy living environment for urban citizens, and in principle, development activities in development restriction zones can be permitted unless they violate the above designation purpose of development restriction zones. However, the installation of cemetery parks and crematorium facilities, which are urban planning facilities, is not in violation of the above designation purpose of development restriction zones. Thus, even if the Mayor has determined urban planning facilities with the purport of installing cemetery parks and crematorium facilities on a site already designated as a development restriction zone, it shall not be deemed unlawful.

[5] Article 19(1) 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, 2002) and the urban planning ordinance of the local government at the time of the determination of urban planning facilities shall conform to the basic urban planning. However, the basic urban planning plan is a long-term and comprehensive development plan that provides the long-term development direction of the city and future background, and has no direct binding force on administrative agencies.

[6] The term "administrative plan" means the establishment of an activity criteria to realize a certain order at a certain point in the future by integrating and coordinating related administrative means to achieve a specific administrative objective, such as the construction, maintenance, and improvement of a city, based on a professional and technical judgment on administration. The relevant Acts and subordinate statutes only provide abstract administrative goals and procedures, but do not provide any specific provision regarding the contents of the administrative plan, so the administrative agency has a relatively broad freedom in formulating and determining a specific administrative plan. However, there is a limitation that the freedom of formation, which the administrative body has, is not unlimited, but not limited to the public interest and private interest of the persons involved in the administrative plan, as well as the mutual and private interest between the public interest and private interest. Thus, if the administrative agency establishes and determines the administrative plan, where the administrative body fails to pay a balance of interest at all or omits any matter that should be included in the subject of consideration of the balance of interest, or where there is a lack of legitimacy and objectivity, the decision of the administrative plan is unlawful.

[1] Article 2 subparag. 6, Article 38, and Article 39 of the former Administrative Procedures Act (amended by Act No. 6839 of Dec. 30, 2002) / [2] Article 5 of the Act on Funeral Services, Etc., Article 3 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones / [3] Article 10 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 6655 of Feb. 4, 2002) / [4] Article 10 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 6655 of Feb. 4, 2002) / [5] Article 19(1) of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act of Act No. 66555 of Feb. 4, 2002; Article 25(1) of the current National Land Planning and Utilization Act (see Article 265) of the National Land Planning Act)

[5] Supreme Court Decision 96Nu13927 delivered on November 27, 1998 (Gong1999Sang, 53) Supreme Court Decision 2000Du8226 delivered on October 11, 2002 (Gong2002Ha, 2734) / [6] Supreme Court Decision 96Nu8567 delivered on November 29, 1996 (Gong197Sang, 210) Supreme Court Decision 98Du2768 delivered on March 23, 200 (Gong200Sang, 1067) (Gong200Sang, 106Ha, 1673)

Plaintiff 1 and 9 others (Law Firm Cheongan, Attorneys Cheong-soo et al., Counsel for plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Hong, Attorneys Ansan-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Nu19885 delivered on January 26, 2005

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

We examine the grounds of appeal.

1. As to the violation of the Administrative Procedures Act

According to the judgment below, the Seoul Special Metropolitan City, the National Cemetery Reformer Council of Korea, and SK Co., Ltd. established a council for the establishment of memorial parks (hereinafter “the council of this case”) on August 4, 200, and recommended the appropriateness of the council of this case to Seoul Special Metropolitan City, and the SK Co., Ltd. established funeral facilities, and agreed to operate the above funeral facilities in Seoul Special Metropolitan City. The council of this case held a public hearing on three occasions in order to gather consensus from the 13 candidates in Seoul Special Metropolitan City, and it is not necessary to publicly announce the above public facilities in order to hold the public hearing under the name of the public office of the Seocho-gu Seoul Metropolitan City, and to publicly notify the public office of the Seocho-gu Seoul Special Metropolitan City on July 5, 200, the public hearing of this case should be held in the name of the public office of 30 days in order to gather consensus from the 13 candidates in Seoul Special Metropolitan City, and the public office of the Seocho-gu Seoul Special Metropolitan City on the 201-213rd Park.

In the same purport, the court below is just to determine that the decision of the urban planning facility in this case is not in violation of the Administrative Procedures Act, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the procedure for

2. As to the violation of the Act on Funeral Services, etc.

Article 5 of the Act on Funeral Services, Etc. and Article 3 of the Enforcement Decree of the same Act provide that a Mayor/Do Governor shall establish a mid- and long-term plan for the supply and demand of cemeteries, crematoriums, and charnel facilities within his/her jurisdiction, and the head of a Si/Gun/Gu shall establish a mid- and long-term plan for the supply and demand of cemeteries, crematoriums, and charnel facilities within his/her jurisdiction in accordance with a supply and demand plan, such as cemeteries of a City/Do. This is the duty of a local government to establish such plan for the purpose of securing funeral facilities in advance within his/her jurisdiction for the smooth supply and demand of funeral facilities. Therefore, the Mayor/Do Governor cannot interpret that the said plan should be established first in order to install individual funeral facilities, and it cannot be said that the Mayor/Do Governor violates the authority of the head of a Si/Gun/Gu to establish the said plan by installing individual funeral facilities without formulating the said plan.

In the same purport, the lower court is justifiable to have determined that the instant decision on urban planning facilities was not in violation of the Act on Funeral Services, etc., and it did not err in the misapprehension of legal principles as to Article 5 of the aforementioned Act.

3. As to the violation of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 6655 of Feb. 4, 2002; hereinafter “Act on Special Measures for Designation and Management of Development Restriction Zones”).

A. Whether Article 10 of the Development Restriction Zone Act is violated

The lower court determined that Article 10 of the Development Restriction Zones Act provides that the Mayor/Do Governor having jurisdiction over a development restriction zone shall establish a management plan every five years to ensure the comprehensive management of urban planning facilities in a development restriction zone so that it does not impede the comprehensive management of the development restriction zone by presenting the basic goal and direction of the management of the development restriction zone, examining whether urban planning facilities are located in the development restriction zone, etc., and thus, it cannot be said that the content of the determination of urban planning facilities in this case is not included in the development restriction zone management plan.

In light of the relevant laws and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to Article 10 of the Development Restriction Zone Act as otherwise alleged in the ground of appeal.

On the other hand, development restriction zones are designated by the necessity of restricting urban development in order to prevent any disorderly expansion of cities and preserve the natural environment surrounding cities in order to ensure the healthy living environment for urban citizens, and thus, development activities in development restriction zones in principle are restricted, but if it does not violate the above designation purpose of development restriction zones, development restriction zones can be permitted. In light of the records, the construction of the memorial park in this case, which is urban planning facilities, does not violate the above designation purpose of development restriction zones. Thus, even if the defendant decided urban planning facilities in the site of this case, which is already designated as development restriction zones, it cannot be deemed unlawful

Therefore, the plaintiffs' ground of appeal that the determination of urban planning facilities in this case was unlawful as the defendant voluntarily decided the act restricted by the Development Restriction Zone Act in the area designated as a development restriction zone is without merit.

B. Whether the development restriction zone violates Articles 3 through 6 of the Development Restriction Zone Act

The court below rejected the plaintiffs' assertion that the cancellation of development restriction zones should be determined by urban planning after conducting environmental impact assessment, establishing a metropolitan plan, and that the determination of urban planning facilities of this case without going through such procedures is illegal, on the grounds that it is separate from the urban planning concerning the cancellation of development restriction zones designated as the site of the memorial park of this case and the determination of urban planning facilities of this case, and thus, it cannot be said that the determination of urban planning facilities of this case cannot be deemed unlawful even if there are defects as alleged by the plaintiffs in the procedure for cancelling

As seen earlier, in light of the fact that the Defendant’s determination of urban planning facilities in this case on the land for the memorial park in which the Defendant had already been designated as a development restriction zone cannot be deemed to be illegal, and that there is no error in the misapprehension of legal principles as to Articles 3 through 6 of the Development Restriction Zone Act, as otherwise alleged in the ground of appeal.

C. Whether Article 11 of the Development Restriction Zone Act is violated

Article 11(1) of the Act on Development-Restricted Areas provides that urban planning projects under Article 3 subparag. 13 of the Urban Planning Act may be implemented within development-restricted areas with permission from the head of the Si/Gun/Gu. It is clear that the implementation of urban planning projects is only subject to permission from the head of the Si/Gun/Gu, and it does not stipulate that urban planning projects shall be permitted by the head of the Si/Gun/Gu at the planning stage of urban planning facilities.

Therefore, the plaintiffs' ground of appeal that the defendant did not obtain permission from the head of Seocho-gu when determining urban planning facilities of this case is unlawful is without merit.

4. As to the violation of the Urban Park Act

In full view of the adopted evidence, the lower court recognized that the determination of the instant urban planning facilities is divided into a memorial house and a park of 50,000 square meters in size into 76,320 square meters in Seocho-gu Seoul, Seocho-gu, Seoul, and a crematorium of 20,00 square meters in size and a funeral hall of 12,00 square meters in size as cremation on the 68,39,700 square meters in Seocho-gu, Seocho-gu, Seoul, Seocho-gu, Seoul. The lower court determined that the instant memorial park could not be deemed as a funeral facility and a park of 20,000 square meters in size and a funeral hall of 12,00 square meters in size, and that the instant memorial park could not be deemed as a funeral facility and a park of 20,000 square meters in size as a site for funeral facilities by dividing the area of the relevant site into the area of each memorial facility and a funeral hall of the open area into the area of each park facilities.

In light of the relevant laws and records, the fact-finding and decision of the court below is just, and there is no violation of the rules of evidence and the misapprehension of legal principles as to Article 3 of the Urban Park Act as otherwise alleged in the ground of

5. As to the violation of the Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002, Jan. 1, 2003; hereinafter the same)

A. Whether Article 19(1) of the Urban Planning Act is violated

Article 19(1) of the Urban Planning Act and Article 3(3) of the Urban Planning Ordinance of the Seoul Metropolitan Government at the time of the determination of the urban planning facilities of this case provide that urban planning shall conform to the basic urban planning. However, the basic urban planning is a long-term and comprehensive development plan that provides a guidance for the formulation of urban planning, which serves as a guidance for the long-term development direction and future circumstances of the city, and thus, has no direct binding force (see Supreme Court Decision 96Nu13927, Nov. 27, 1998). Thus, the decision of the urban planning facilities of this case cannot be deemed to be unlawful solely on the ground that the creation

In the same purport, the court below is just in holding that the decision of urban planning facilities of this case was made without preparing a basic urban planning plan for the construction of the memorial park of this case, and there is no error of law such as misunderstanding of legal principles as to Article 19 (1) of the Urban Planning Act, etc. as the grounds for appeal.

B. Whether Article 19(2) of the Urban Planning Act is violated

In full view of the adopted evidence, the court below acknowledged that the defendant conducted a basic survey on the natural environment, such as the use of the surrounding land, target land and surrounding village areas, traffic and access system, etc. of the memorial park of this case, including topography, geological features, waterway, landscape and ecological environment, etc., and prepared a report on the determination of urban planning facilities for the memorial park of this case, a master plan for the memorial park of this case, an environmental review report, etc., which assist the determination of urban planning facilities for the memorial park of this case, and rejected the plaintiffs' assertion that the defendant's determination of urban planning facilities of this case without a basic survey and an environmental review.

In light of the relevant laws and records, the fact-finding and decision of the court below is just, and there is no violation of the rules of evidence and misapprehension of legal principles as to Article 19 (2) of the Urban Planning Act as otherwise alleged in the ground of appeal.

6. As to the violation of the principle of the protection of speech and trust

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and, on the grounds as indicated in its reasoning, determined that the Defendant’s objection to the Seocho-gu urban planning plan that the Defendant would build the Seocho Youth Training Center within the instant memorial park site, and that the Defendant, after opposing the Seocho-gu’s request for determination of urban planning facilities (road) following the installation of the Seocho-gu’s resource recovery facility that is entirely different from the content of the determination of the instant urban planning facility, determined that the instant urban planning facility decision cannot be said to be contrary to the doctrine

In light of the records, the fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the rules of evidence and the principle of trust protection as otherwise alleged in the ground of appeal.

7. Whether there is a defect in the contents of the determination of the urban planning facility in this case

The term "administrative plan" means an administrative plan established as an activity standard to realize a certain order at a certain point in the future by integrating and coordinating administrative means related to each other in order to achieve a specific administrative objective such as the construction, maintenance, improvement, etc. of a city based on a professional and technical judgment on administration. The relevant Acts and subordinate statutes, such as the Urban Planning Act, include only abstract administrative goals and procedures, and do not have any specific provisions regarding the contents of the administrative plan, and thus, the administrative agency has a relatively wide range of freedom in drafting and determining a specific administrative plan. However, since the freedom of formation, which the administrative agency has, is not unlimited, but is not limited to the freedom of formation, the public interest and private interest of the persons related to the administrative plan, and the mutual and private interest between the public interest and private interest, are also limited. Thus, if the administrative agency prepares and determines the administrative plan, it is unlawful in imposing the administrative plan, or where it is omitted that should be included in the subject of consideration of the benefits and interests, but it lacks legitimacy and objectivity (see Supreme Court Decision 2006Du536, Sept. 26, 2006).

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its holding, and on the grounds stated in its reasoning, determined that: (a) the Plaintiffs’ ground for raising the adequacy of the size of the relevant memorial park and environmental and traffic issues cannot be deemed to lack legitimacy and objectivity, in cases where the Defendant, as part of the administrative plan, failed to implement the profit balancing at all or omitted matters that should be included in the subject of consideration of the profit balancing; or (b) did not carry out the profit balancing,

In light of the above legal principles and records, the fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the violation of the rules of evidence and the defects in the sentence.

8. As to the violation of the principle of equity

In full view of the adopted evidence, the court below acknowledged the following facts: (a) as a result of the examination of the Site Selection Review Committee organized by the Council of this case, it was evaluated that the site of this case was average of 160 points, average of 147 points, and the site of the Yee Park was average of 147 points; and (b) the Council of this case recommended the site of the Yeee Park in Seoul Special Metropolitan City on July 5, 2001 as the first and second order, and the Seoul Special Metropolitan City selected the site of the Ye Park in this case recommended as the second order; and (c) on the premise that the defendant selected the Oredong area as the final candidate but revoked the plan for the Yeedong area on the ground of the anti-replacement of local residents, the court below rejected the plaintiffs' assertion that it was against the principle of equity

In light of the records, the fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the rules of evidence and the principle of equity as otherwise alleged in the ground of appeal.

9. 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 Shin Hyun-chul (Presiding Justice)