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(영문) 대법원 2017.07.18 2016두49938
군계획시설사업 분할실시계획인가처분 취소
Text

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Reasons

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

1. Defects in prior dispositions and their succession;

(a) Where two or more administrative dispositions are made continuously or by phase, if there is a defect in the preceding dispositions when the two preceding dispositions and subsequent dispositions are combined to complete one legal effect, the defect shall be succeeded to the subsequent administrative dispositions.

In such a case, even if the effect of the preceding disposition may not be asserted due to the lack of dispute, the validity of the latter disposition can be asserted on the ground of the defect of the preceding disposition.

However, in a case where the preceding and subsequent dispositions independently cause a separate legal effect, the validity of the preceding dispositions shall not be asserted on the ground of the defect of the preceding dispositions unless there are special circumstances, unless the defect of the preceding dispositions is null and void.

(see, e.g., Supreme Court Decision 93Nu8542, Jan. 25, 1994). According to Article 43(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the type, name, location, scale, etc. of a certain infrastructure ought to be determined by an urban/Gun management plan in advance for a certain infrastructure.

Article 2 subparag. 7 and 10 of the National Land Planning and Utilization Act refer to a project for installing, maintaining, or improving urban or Gun planning facilities as an “urban or Gun planning facility” and an “urban or Gun planning facility project” as an “urban or Gun planning facility project.”

Urban or Gun planning facilities are established according to the determination of urban or Gun management plans, and the determination of urban or Gun planning facilities shall take procedures, such as basic surveys generally required for the determination of urban or Gun management plans, hearing opinions of residents and local councils, consultation with the heads of relevant administrative agencies or

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