[1] Requirements for an administrative agency to authorize an implementation plan for an urban planning facility project that establishes an amusement park, which is an urban planning facility

[2] In the case of an authorization disposition that fails to meet the requirements for authorization of an implementation plan for an urban planning facility project, whether the defect is significant (affirmative)

[1] In full view of the forms and contents of each provision of Article 2 subparag. 6(b) and Article 43(2) of the former National Land Planning and Utilization Act (amended by Act No. 7707 of Dec. 7, 2005; hereinafter “National Land Planning Act”), Article 2(1)2 and (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 19206 of Dec. 28, 2005); Article 56 of the former Rules on the Determination, Structure, and Standards for Installation of Urban Planning Facilities (amended by Presidential Decree No. 480 of Dec. 14, 2005); and the fact that the authorization of an implementation plan for an urban planning facility project, which is an urban planning facility, is practically realized to realize a specific urban planning facility project, to establish an urban planning facility project, an implementation plan for an implementation plan for an urban planning facility project constitutes an implementation plan for the purpose of improving the welfare of the urban planning facility, which is the concept of the national land plan.

[2] The provisions of Articles 88(2), 95, and 96 of the former National Land Planning and Utilization Act (amended by Act No. 7707 of Dec. 7, 2005) are as follows: (a) an urban planning facility project is closely related to public welfare as a project that installs facilities determined systematically by an urban management plan among the infrastructure essential for urban formation or residents’ living; and (b) an implementation plan for an urban planning facility project is to realize a specific urban planning facility project in reality and the requirements for granting a right to expropriate and use land, etc. necessary for the project are not satisfied; and (c) a disposition that fails to meet the requirements for authorization of an implementation plan are not justifiable to grant a special right to expropriate and use land, etc. necessary for the implementation of an urban planning facility project with public nature; and (d) there

[1] Article 2 subparagraph 6 (b) and Article 43 (2) of the former National Land Planning and Utilization Act (amended by Act No. 7707 of Dec. 7, 2005), Article 2 (1) 2 and (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 19206 of Dec. 28, 2005), Article 56 of the former Rules on the Determination, Structure and Standards for Installation of Urban Planning Facilities (amended by Ordinance No. 480 of Dec. 14, 2005) / [2] Articles 8 (2), 95, and 96 of the former National Land Planning and Utilization Act (amended by Act No. 7707 of Dec. 7, 2005); Article 19 of the Administrative Litigation Act

Plaintiff 1 and three others (Attorney Kim Jong-il, Counsel for the plaintiff-appellant)

Local Land Tribunal of Jeju Special Self-Governing Province (Attorney Kim Jong-woo et al., Counsel for the defendant-appellant)

Jeju Free International City Development Center (Attorney Kim Jong-woo et al., Counsel for the defendant-appellant)

Gwangju High Court ( Jeju) Decision 2009Nu401 Decided January 12, 2011

All appeals are dismissed. The costs of appeal are assessed against the supplementary intervenor by the local Land Tribunal of Jeju Special Self-Governing Province, and the remainder is assessed against the local Land Tribunal of Jeju Special Self-Governing Province.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In full view of the forms and contents of each provision of subparagraph 6(b) and Article 43(2) of the former National Land Planning and Utilization Act (amended by Act No. 7707 of Dec. 7, 2005; hereinafter “National Land Planning Act”); Article 2(1)2 and (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 19206 of Dec. 28, 2005); Article 56 of the former Rules on the Determination, Structure, and Standards for Installation of Urban Planning Facilities (amended by Presidential Decree No. 480 of Dec. 14, 2005; hereinafter “Rules of Urban Planning Facilities”); and the fact that the administrative agency’s disposition of authorization for an implementation plan for an urban planning facility project, which is an urban planning facility, is to realize a specific urban planning facility project, it constitutes an implementation plan for the construction of an amusement park and an implementation plan for the improvement of the welfare of the national land plan.

According to the reasoning of the judgment below, the court below acknowledged the facts, and determined that the residential complex of this case (hereinafter “the resort complex of this case”) was unlawful for the following reasons: one of the spatial facilities, including squares, parks, green areas, etc., which is the infrastructure under the National Land Planning and Utilization Act, was “facilities for recreation and recreation established to contribute to the improvement of the welfare of residents,” while Defendant Jeju Free International City Development Center (hereinafter “Defendant Development Center”)’s residential complex development project (hereinafter “the resort complex of this case”) which combines residential, leisure and medical functions on the land for which the urban planning facilities were decided to establish the resort resort park in order to build the resort resort park (hereinafter “instant development project”) in order to build the resort resort park, which is the infrastructure of the city planning facility project (hereinafter “the resort complex of this case”), which is the infrastructure under the National Land Planning and Utilization Act, for the purpose of creating tourist profits by attracting domestic and foreign tourists, in particular, high-income older persons, and which is the infrastructure for the purpose of developing the resort complex of this case.

Examining the reasoning of the lower judgment in light of the relevant Acts, subordinate statutes, and the record as seen earlier, the lower court’s aforementioned determination is just and acceptable. In so doing, it did not err by misapprehending the legal doctrine as to the meaning of an amusement park, which is an urban planning facility, and whether an implementation plan based on

2. As to the grounds of appeal Nos. 2 and 3

In order for an administrative disposition to be null and void as a matter of course, it is insufficient to say that there is an illegal cause. The defect must be objectively obvious and material part of the law. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be given on the specificity of the specific case itself (see Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995). In a case where an administrative agency takes an administrative disposition by applying the provisions of a law to a certain legal relation or factual relationship, where there is room for dispute over the interpretation of the law because the legal principles are not clearly revealed, the legal relationship or factual relations cannot be applied, even if an administrative agency erroneously interpreted it and issued an administrative disposition, it cannot be said that the defect is obvious (see Supreme Court Decision 2002Da68485 delivered on October 15, 2004; Supreme Court Decision 2010Du15479 delivered on October 25, 2019).

According to the National Land Planning Act, an implementor of an urban planning facility project shall prepare an implementation plan for an urban planning facility project and obtain authorization from an administrative agency (Article 88(2)), and if the authorization of an implementation plan is publicly announced, an implementor of an urban planning facility project may expropriate and use land, etc. necessary for the project (Articles 95 and 96). The provisions of the National Land Planning Act are as follows: (a) an urban planning facility project is closely related to public welfare as a project installing facilities determined systematically by an urban management plan among infrastructure essential for urban formation or residents’ living; and (b) a disposition to grant authorization for an implementation plan for an urban planning facility project is to realize a specific urban planning facility project in reality, and the requirements for granting a right to expropriate and use land, etc. necessary for the implementation of an urban planning facility project with public nature, and thus, a disposition not meeting the requirements for authorization of an implementation plan do not meet is

Meanwhile, according to the reasoning of the lower judgment and evidence duly adopted and examined by the lower court, Defendant Development Center: (a) opened a recreational complex at a global level where residential, leisure and medical functions are combined; (b) opened domestic and overseas high-income senior citizens and resort tourists to create the development basis of Jeju Free International City by seeking high-value creation, etc. along with the population inflow effect; (c) Defendant Development Center was claimed for the purpose of the instant development project; (d) on the extension line, Defendant Development Center planned to establish recreational accommodation facilities and tourist hotel facilities as the main facilities of the instant resort complex; and (e) excluded management facilities and green areas, convenience facilities and special facilities were merely auxiliary facilities; (e) recreational accommodation facilities attached to the application for approval for the implementation of the development project submitted by Defendant Development Center have to be built and sold as recreational condominiums, such as sole, four-dimensional and mixed residential facilities; and (e) the Jeju Development Center’s general residential complex facilities to be built and sold within the scope of the relevant urban planning facilities determined by the National Land Planning Facility Ordinance, as well as the general residential complex development project.

Therefore, even though the literal meaning of the provisions of the National Land Planning and Utilization Act is clear, it can be deemed that the instant disposition was made without any reasonable ground without satisfying the requirements for disposal, and such defect is objectively clear. Furthermore, it is difficult to view otherwise insofar as the Defendant Development Center cannot be deemed as falling under the amusement park under the National Land Planning and Utilization Act, as long as the facilities listed in the facilities that may be installed in the amusement park under Article 58(2) of the Regulations on Urban Planning Facilities and the facilities scheduled to be installed in the resort-type housing complex of this case are similar in title to those of the instant facilities, and the amusement park created by the development project under the former Special Act on Jeju Free International City (repealed by Article 3 of the Addenda of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City, Act No. 7849 of Feb. 21, 2006) may install facilities not listed in the regulations on urban planning facilities (the development project under the former Special Act on Jeju Free International City does

In the same purport, the court below is just in holding that the disposition of this case is null and void because the defect is serious and clear, and that the ruling of acceptance of this case based on the disposition of this case which is null and void as a matter of course is also null and void, and there is no error of law such as misunderstanding the requirements for a defect to be null and void as a matter of course, and misunderstanding the legal principles

3. Conclusion

All appeals are dismissed, and the costs of appeal are assessed against supplementary intervenors by Defendant Local Land Tribunal of Jeju Special Self-Governing Province, and the remainder is assessed against Defendant Local Land Tribunal of Jeju Special Self-Governing Province. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)