[1] Whether a rental business operator designated as a public-service business pursuant to Article 14(1) of the former Rental Housing Act satisfies the requirements for acquiring ownership of a housing construction site under Article 16(4)1 of the former Housing Act in order to obtain approval for a business plan pursuant to Article 16(1) of the former Housing Act (negative)

[2] The meaning of "land area for business by a rental business operator for constructing rental housing" under Article 14 (1) of the former Rental Housing Act

[3] In a case where a housing construction project operator designates an urban/Gun planning facility project operator who intends to establish access roads outside a housing complex and vests in the administrative agency, whether the “road site outside a housing complex” is included in the “land subject to the rental housing construction project” under Article 14(1) of the former Rental Housing Act (negative)

[4] In a case where an interested party seeks to dispute the illegality of a constructive authorization and permission based on the disposition of approval for the housing construction project plan, whether the subject (i.e., deemed authorization and permission) and deemed authorization and permission constitute a disposition subject to appeal separate from the disposition of approval for the housing construction project plan (affirmative)

[5] Whether the person who has the right to approve the housing construction project plan shall undergo the procedures for hearing the opinions of residents pursuant to Article 28 of the National Land Planning and Utilization Act, in addition to the procedures for consultation in order to be deemed a decision on the urban or Gun management plan by approving the housing construction project plan after consultation with the person who

[6] Whether the legal fiction of authorization and permission under Article 17 (1) of the former Housing Act is limited to the land subject to the relevant housing construction project (negative), and the requirements for the legal fiction of authorization and permission, such as district unit planning, for urban/Gun planning facilities, etc. to be installed in the land outside the housing construction project area due to the approval of the housing construction project plan

[7] In order for a person to be designated as an executor of an urban/Gun planning facility project pursuant to Article 65 of the National Land Planning and Utilization Act, whether a separate requirements for ownership and consent are required to designate a private person as an executor of an urban/Gun planning facility project (negative)

[1] The legislative intent of Article 16(4)1 of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter “former Housing Act”) is to promote housing construction projects by allowing a housing construction business entity to obtain approval of a project plan if the entity fails to secure the ownership of the entire housing site through a claim for sale under Article 18-2 of the former Housing Act, etc. In addition, the legislative intent of the public-service designation system under Article 14(1)1 of the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015; hereinafter “former Rental Housing Act”) is to activate the supply of rental housing by granting a rental business entity the right to land expropriation if it satisfies certain requirements.

According to the above provisions, the housing construction project owner who has obtained approval of a project plan pursuant to Article 16 (4) 1 of the former Housing Act shall secure the remainder of the land through a system for claiming sale under the Housing Act, while a rental business operator designated pursuant to Article 14 (1) of the former Rental Housing Act may secure the remainder of the land by means of expropriation after obtaining approval of a project plan.

In light of the language, content, legislative intent, etc. of the above provisions, it cannot be deemed that a rental business operator designated as a public-service business pursuant to Article 14(1) of the former Rental Housing Act satisfies the requirements under Article 16(4)1 of the former Housing Act in order to obtain approval of a business plan pursuant to Article 16(1) of the former Housing Act.

[2] Article 14(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016) defines “a group of land to be used in constructing housing and its appurtenant facilities and welfare facilities (welfare facilities) or in creating a housing site upon obtaining approval of a housing construction project plan or housing site preparation project plan under Article 16 as a “housing complex” (Article 2 Subparag. 6), and stipulates a basic unit for examining and determining a housing construction project plan as a “housing complex” (Article 2 Subparag. 6). In light of the language and content of such provision and the legislative intent of the public project designation system, unless a rental business operator simultaneously constructs several housing complexes within a project district, the term “land subject to construction of rental housing by a rental business operator” under Article 14(1) of the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015) shall be deemed as “area of a housing complex.”

[3] The terms “construction of roads within a housing complex” and “construction of access roads outside a housing complex” are different from the legal basis. A housing construction project entity is legally obligated to install roads exceeding 7 meters wide as auxiliary facilities for residents living within the housing complex, and such construction project shall be included in the contents of the relevant housing construction project [Article 2 subparag. 8 of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter “former Housing Act”); Article 26 of the Regulations on Standards, etc. for Housing Construction] However, the term “out a housing complex” is not legally obligated for a housing construction entity to install arterial facilities or access roads (see Article 23(1)1 and (6) of the former Housing Act; Article 24 [Attachment 2] of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 27444, Aug. 11, 2016; Article 25].

[4] According to Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016), a person who has the authority to approve a housing construction project plan is merely entitled to the authorization, permission, etc. at the time of granting the approval only for the matters that he/she had consulted with the head of the relevant administrative agency, and does not stipulate the requirements for granting the approval of the housing construction project plan as a whole. Therefore, even if there is any defect in the disposition subject to the legal fiction of the authorization, there is only room for not to bring about the legal fiction of the relevant authorization, and such circumstance does not constitute an illegal ground for the approval of the housing construction project plan itself. Moreover, inasmuch as the “Partial authorization and permission” has the same effect as the ordinary authorization and permission, the cancellation or withdrawal of the authorization and permission deemed as a legal means to eliminate its effect may be permitted, and as long as such revocation or withdrawal is possible, litigation against the authorization and permission deemed to have been granted.

Therefore, the interested parties who intend to dispute the illegality of the constructive authorization in accordance with the approval disposition for the housing construction project plan shall not seek the cancellation of the approval disposition for the housing construction project plan, but seek the cancellation of the constructive authorization, and the constructive authorization constitutes a disposition subject to appeal separate from the approval disposition for the housing construction project plan.

[5] The legislative intent of Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter “former Housing Act”) is to promote the construction and supply of housing by cutting the cost and time needed for various authorizations by simplification and simplification of the procedures with respect to various matters of authorization and permission necessary for the implementation of a housing construction project as an approving authority for a housing construction project. Considering the legislative intent of the provision on constructive authorization, when the approving authority of a housing construction project plan approves a related housing construction project plan after consultation with the approving authority of an urban/Gun management plan pursuant to Article 17(3) of the former Housing Act, it is deemed that a decision of an urban/Gun management plan was made pursuant to Article 17(1)5 of the former Housing Act, and it is not necessary to take procedures for hearing opinions of residents to formulate an urban/Gun management plan provided for in Article 28 of the National Land Planning and Utilization Act, etc.

[6] The legal fiction of authorization and permission under Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016) does not include any provision that limits the spatial scope of authorization and permission. Therefore, the legal fiction of authorization and permission is not limited to the land subject to the relevant housing construction project (housing complex). However, in light of the legislative intent of the legal fiction of authorization and permission to promote the construction and supply of housing by simplification of various authorization and permission procedures necessary to implement a housing construction project, the legislative intent of the legal fiction of authorization and permission to promote the construction and supply of housing should be considered. To obtain legal fiction of authorization and permission, such as district unit planning, for urban/Gun planning facilities, etc. to be installed outside the housing construction project area, the relevant facilities, etc. should have “actual relations” with the relevant housing construction project plan, and the “additional

[7] According to Article 86(7) of the National Land Planning and Utilization Act, a person who does not fall under “the State or a local government” (Article 1), “a public institution prescribed by Presidential Decree” (Article 2), or “other person prescribed by Presidential Decree” (Article 3) intends to be designated as an implementer of an urban or Gun planning facility project shall meet separate requirements prescribed by Presidential Decree regarding the size of ownership of land (excluding State and public land) subject to an urban or Gun planning facility project and the ratio of landowners’ consent. According to such delegation, Article 96(4)3 of the Enforcement Decree of the National Land Planning and Utilization Act provides that “a person who intends to install public facilities to be gratuitously reverted to the management authority pursuant to Article 65 of the Act among “other persons prescribed by Presidential Decree” under Article 86(7)3 of the National Land Planning and Utilization Act shall not be required to designate a private person as an implementer of an urban or Gun planning facility project.

[1] Article 16 (4) 1 of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016); Article 14 (1) of the former Rental Housing Act (wholly amended by Act No. 1349, Aug. 28, 2015; Article 20 (1) of the current Special Act on Private Rental Housing) / [2] Article 2 subparagraph 6 of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; Article 2 subparagraph 16 of the former Enforcement Decree of the Housing Act (wholly amended by Act No. 13805, Aug. 16, 201); Article 14 (1) of the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015; see Article 20 (1) 1 of the current Enforcement Decree of the Housing Act) / [2] Article 9 of the former Housing Act (wholly amended by Act No. 136 subparag. 18 (see Article 16 (2)

[4] Supreme Court Decision 2017Du45131 Decided September 12, 2017 (Gong2017Ha, 1979), Supreme Court Decision 2017Du48734 Decided July 12, 2018 (Gong2018Ha, 1625) / [5] Supreme Court Decision 92Nu1162 Decided November 10, 192 (Gong193Sang, 122)

Plaintiff

Market for macro-market

Sub-dong Rental Housing Association (Attorney Ahn Byung-chul, Counsel for defendant-appellant)

Busan High Court (Chowon) Decision 2015Nu11656 decided April 20, 2016

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to the ground of appeal on the approval of the project plan of this case

A. Details of the relevant provisions

(1) According to Article 16(4)1 of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter “former Housing Act”), a person who intends to obtain approval for a housing construction project plan shall, in principle, secure the ownership of the entire housing construction site. However, in cases of a housing construction project requiring a district unit planning decision, including cases deemed pursuant to Article 17(1)5, at least 80/100 of the relevant housing site area (at least 95/100 in cases of a housing association that implements a project jointly with a registered business operator) may obtain approval for a housing construction project plan if the housing site not secured becomes subject to a claim for sale under the Housing Act.

(2) Meanwhile, according to Article 14(1) and (2) of the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015; hereinafter “former Rental Housing Act”), where a rental business operator purchases at least 9/10 of a “land area subject to business” for construction of rental housing of at least the number of units prescribed by Presidential Decree for exclusive use by its occupant area of at least 85 square meters (including cases where a rental business operator has obtained the landowner’s consent for purchase), and where there is a reason for considerable difficulty in carrying out the remaining land without acquiring the remaining land, he/she may request the Mayor/Do Governor to designate a public project pursuant to Article 4 subparag. 5 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and if the designated rental business operator obtains approval for his/her business plan pursuant to Article 16 of the Housing Act, he/she shall be deemed to have obtained project approval under Article 20(1) of the same Act.

B. We examine whether the requirements for acquiring ownership under the Housing Act should be satisfied when a rental business operator obtains approval of a business plan under the Rental Housing Act.

(1) The legislative purport of Article 16(4)1 of the former Housing Act is to promote housing construction projects by allowing a housing construction business entity to obtain the ownership of the entire site through the sales claim system stipulated in Article 18-2 of the former Housing Act even when the housing construction business entity fails to secure the ownership of the entire housing construction site. The legislative purport of Article 14(1) of the former Rental Housing Act is to promote rental housing supply by granting a rental business entity a right to land expropriation if it satisfies certain requirements.

According to the above provisions, the housing construction project owner who has obtained approval of a project plan pursuant to Article 16 (4) 1 of the former Housing Act shall secure the remainder of the land through a system for claiming sale under the Housing Act, while a rental business operator designated pursuant to Article 14 (1) of the former Rental Housing Act may secure the remainder of the land by means of expropriation after obtaining approval of a project plan.

In light of the language, content, legislative intent, etc. of the above provisions, it cannot be deemed that a rental business operator designated as a public-service business pursuant to Article 14(1) of the former Rental Housing Act satisfies the requirements under Article 16(4)1 of the former Housing Act in order to obtain approval of a business plan pursuant to Article 16(1) of the former Housing Act.

(2) The judgment below to the same purport is just, and there is no error by misapprehending the legal principles on the requirements under Article 14(1) of the former Rental Housing Act or the interpretation and application of the requirements under Article 16(4)1 of the former Housing Act.

C. We examine the scope of “land subject to business”

(1) Article 14(1) of the former Housing Act defines “a group of land to be used in constructing housing and its appurtenant facilities and welfare facilities (welfare facilities) or in creating a housing site upon obtaining approval of a housing construction project plan or a housing site preparation project plan under Article 16 as “housing complex” (Article 2 Subparag. 6). In light of the language and text of the relevant provision and the legislative intent of the system for designating public works as seen earlier, unless a rental business operator simultaneously constructs several housing complexes within a project district, the term “area of land subject to business by a rental business operator for constructing rental housing” under Article 14(1) of the former Rental Housing Act shall be deemed as “area of housing complex” to be “area of housing complex to be constructed by a rental business operator after obtaining approval of a project plan under the Housing Act.

(2) Meanwhile, “construction of roads outside a housing complex” and “construction of access roads outside a housing complex” differing from their legal basis. A housing construction project entity is legally obligated to install roads exceeding 7 meters in width as auxiliary facilities for residents living in the housing complex within the housing complex (Article 2 subparag. 8 of the former Housing Act and Article 26 of the Regulations on Standards, etc. for Housing Construction). However, the term “out a housing complex” is not legally obligated for a housing construction project entity to install a long-term road or access roads (see, e.g., Article 23(1)1 and (6) of the former Housing Act; Article 24 [Attachment 2] of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 2744, Aug. 11, 2016). However, during the process of obtaining approval for a housing construction plan, the housing construction project entity is not subject to the designation of a housing construction project entity outside a housing complex (including access roads outside a housing complex) in proportion to the scale of the housing complex.

(3) The judgment below to the same purport is just, and it did not err by misapprehending the legal principles on the interpretation of land subject to a project under Article 14(1) of the former Rental Housing Act and the illegality of approval of a housing construction project plan.

2. Regarding the determination of the instant district unit plan

A. We examine ex officio whether the instant district unit planning decision can be subject to revocation litigation.

(1) The term “disposition, etc.”, which is the subject of an appeal litigation, means the exercise or refusal of public authority, as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether a certain act by an administrative agency constitutes a disposition, etc. subject to an appeal litigation cannot be determined generally and abstractly. Determination should be made individually by taking into account the content and purport of the relevant statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of interested parties with respect to the act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010, etc.).

(2) According to Article 17(1) of the former Housing Act, only the matters on which a person who has the right to approve a housing construction project plan has a prior consultation with the head of the relevant administrative agency, permission, etc. is deemed to be granted, and does not provide for the requirements for the approval of a housing construction project plan. Therefore, even if there are any defects in a disposition subject to the legal fiction of authorization and permission, there is only room for not to bring about the legal fiction of the relevant authorization and permission, and such circumstance does not constitute an unlawful ground for the approval of the housing construction project plan itself (see Supreme Court Decision 2017Du45131, Sept. 12, 2017). In addition, the legal fiction of authorization and permission has the same effect as ordinary authorization and permission, and at least, if the legal fiction of partial authorization and permission is granted, the revocation or withdrawal of the authorization and permission deemed as a legal means to remove its effect can be granted (see Supreme Court Decision 2017Du4834, Jul. 12, 2018).

Therefore, the interested parties who intend to dispute the illegality of the constructive authorization in accordance with the approval disposition for the housing construction project plan shall not seek the cancellation of the approval disposition for the housing construction project plan, but seek the cancellation of the constructive authorization, and the constructive authorization constitutes a disposition subject to appeal separate from the approval disposition for the housing construction project plan.

(3) The record reveals the following circumstances.

① On August 25, 2014, the Defendant approved and publicly announced the housing construction project plan that constructs nine or more rental apartments in the instant rental housing complex as a joint project proprietor, and publicly announced that the instant district unit planning decision was deemed to have been processed through consultation procedures with the relevant administrative agency.

② Furthermore, on September 25, 2014, the Defendant published a topographic map regarding the instant district unit planning, and the Plaintiff filed the instant lawsuit on December 17, 2014.

(4) Examining these circumstances in light of the legal principles as seen earlier, the instant district unit planning decision became effective from September 25, 2014, which was the day when the topographical map was publicly announced (see Article 31(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and the Plaintiff filed the instant lawsuit on December 17, 2014, which was within 90 days from that day, and thus, the part seeking revocation of the instant district unit planning decision among the instant lawsuit is lawful.

(5) Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the nature of an constructive authorization and permission, etc., the lower court erred by misapprehending the legal doctrine on the nature of an authorization and permission (see Supreme Court Decision 9Du10988, Jan. 16, 2001; Supreme Court Decision 9Du1098, Jan. 16, 2001; Supreme Court Decision 2009Du1098, Sept. 28, 2001). In so doing, the lower court pointed out that it is inappropriate to invoke the instant case in which an interested party, who was disadvantaged by the legal fiction of the relevant authorization and permission, filed a lawsuit seeking revocation of the authorization and permission, along with the main authorization and permission, was deemed to have been refused to issue the main authorization and permission, and thus, it is inappropriate to invoke the instant case in which the interested party, who was disadvantaged by the legal fiction of the relevant authorization

B. To be deemed a district unit planning decision, it is necessary to hear the opinions of residents under the National Land Planning and Utilization Act.

(1) The legislative purport of Article 17(1) of the former Housing Act is to activate the construction and supply of housing by cutting the cost and time needed for various authorizations by simplification of the windows and simplification of the procedures with the approval authority of the housing construction project plan regarding various matters necessary for the implementation of the housing construction project. Considering the legislative purpose of the aforementioned deemed provision, when the approval authority of the housing construction project plan approves the relevant housing construction plan after consultation with the approval authority of the urban and Gun management plan pursuant to Article 17(3) of the former Housing Act, it shall be deemed that a decision of the urban and Gun management plan was made pursuant to Article 17(1)5 of the same Act, and it shall not be necessary to take procedures to hear the opinions of residents for the formulation of the urban and Gun management plan as stipulated in Article 28 of the National Land Planning Act, separately from the consultation procedure (see Supreme Court Decision 92Nu162, Nov. 10, 192).

(2) The judgment below to the same purport is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the legal fiction of determination of an urban/Gun management plan under Article 17(1)5 of the former Housing Act, and the procedures for hearing the opinions of residents under Article 28

C. We examine whether the determination of district unit planning is permissible for land outside the housing construction project area.

(1) The legal fiction of authorization under Article 17(1) of the former Housing Act does not include any restriction on the spatial scope of authorization and permission. Therefore, the legal fiction of authorization and permission is not limited to the land subject to the relevant housing construction project (housing complex). However, in light of the legislative intent of the legal fiction of authorization and permission to promote the construction and supply of housing by simplification of various authorization and permission procedures necessary for the implementation of a housing construction project, in order to become an agenda of authorization and permission, such as a district unit plan, for urban/Gun planning facilities, etc. to be installed outside the housing construction project area, the relevant facilities, etc. must have “actual relations” with the relevant housing construction project plan, and the relevant housing construction project should be “additional necessary” for the implementation of the housing construction project.

(2) The lower court determined that the instant district unit planning cannot be deemed unlawful on the grounds that: (a) the instant district unit planning, which was intended to install access roads (1-25 lines 1-25 lines 20 meters wide) on the land adjoining the instant rental housing complex in order to facilitate access to the instant rental housing complex; and (b) the instant access road site area is only 33,361 square meters of the instant rental housing complex area; and (c) on the grounds that the instant access road site area is only 10.77% of the instant rental housing complex area, the lower court did not deem that the instant district unit planning decision on the access road outside the instant rental housing complex was unlawful.

(3) Examining in light of the above legal principles, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the legal fiction of determination of an urban/Gun management plan under Article 17(1)5 of the former Housing Act

D. Sub-determination

Therefore, the lower court erred by deeming this part of the lawsuit to be unlawful and thereby maintaining the first instance judgment to the same effect. However, in the instant case, the Plaintiff’s assertion on the merits cannot be accepted, and only the Plaintiff appealed, the lower judgment on this part of the lower judgment cannot be reversed and the lower judgment cannot be sentenced to a more unfavorable judgment against the Plaintiff. Therefore, this part of the lower judgment

3. As to the Plaintiff’s assertion that the Intervenor and the Shee Construction Co., Ltd. failed to meet the requirements for designation of the implementor of an urban or Gun planning facility project as prescribed by Article 96(2) of the Enforcement Decree

A. According to Article 86(7) of the National Land Planning and Utilization Act, Article 86(7) of the same Act provides that “a person who does not fall under “the State or a local government” (Article 1), “a public institution prescribed by Presidential Decree” (Article 2(2)2), and “other persons prescribed by Presidential Decree” (Article 3) intends to be designated as an implementer of an urban or Gun planning facility project shall meet separate requirements prescribed by Presidential Decree concerning the size of land (excluding the State or public land) subject to an urban or Gun planning facility project and the ratio of landowners’ consent.” As a result, Article 96(4)3 of the Enforcement Decree of the National Land Planning and Utilization Act provides that “a person who intends to install public facilities to be gratuitously reverted to the management authority to manage public facilities pursuant to Article 65 of the Act” among “other persons prescribed by Presidential Decree” under Article 86(7)3 of the Act shall not be required to designate a private person as the implementer of

B. According to the records, the Defendant, on December 4, 2014, designated an urban or Gun planning facility road (No. 1-12 lines, No. 1-25 lines, No. 1-36 lines, No. 1-36 lines) abutting on or connected with the instant rental housing complex as a joint project implementer, at the same time, and notified the implementation plan by authorizing it.

C. Three roads subject to dispositions, such as the designation of a project implementer, constitute public facilities as prescribed by Article 2 subparag. 13 of the National Land Planning Act; and the completion inspection is completed after an intervenor, etc. installed as an implementer of an urban/Gun planning facility project and completed the completion inspection (see Articles 99 and 65(2) of the National Land Planning and Utilization Act). Therefore, an intervenor, etc. falls under Article 96(4)3 of the Enforcement Decree of the National Land Planning and Utilization Act, and thus, it does not need to meet the separate requirements for ownership and consent under Article 96(2) to designate an intervenor, etc. as an implementer of an urban/Gun planning facility project. Ultimately, the Plaintiff’s assertion

4. Conclusion

Therefore, the appeal is 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 Jung-hwa (Presiding Justice)