(영문) 대법원 2016.7.29.선고 2014두3532 판결

1. The lower court determined that the instant disposition was unlawful on the ground that the Defendant did not satisfy the requirements of Article 58(1)2 and 3 of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter referred to as the “National Land Planning and Utilization Act”) with respect to the development activities (hereinafter referred to as “the instant disposition”) whose form and quality of the land of H 491m (hereinafter referred to as “the instant disposition”) with respect to the alteration of the form and quality of the land of H 491m forest (hereinafter referred to as “the instant disposition”) at the time of the Plaintiff’s strike, on the ground that the grounds for the disposition, which is contrary to Article 58(1)4 of the National Land Planning and Utilization Act, added in the instant lawsuit, are not identical to the grounds for the original disposition and factual basis, and even if it can be asserted as the grounds for disposition, it does not constitute a serious violation of Article 58(1)4 of the National Land Planning and Utilization Act.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. Review of the lower judgment and the record reveals the following facts.

1) On April 27, 2012, the Plaintiff filed an application for permission for the instant development activities with the aim of creating a site for Class II neighborhood living facilities (fishing operation) with respect to the instant forest land.

On May 15, 2012, the defendant was included in the M (N) project (hereinafter "the project in this case") zone, and the development comprehensive plan (hereinafter "the comprehensive plan in this case") was established by the Special Act on Support to Areas, etc. adjacent to the usfk granted district in the United States Armed Forces (hereinafter "the Special Act for Support"). At present, the area within the Ministry of Public Administration and Security for the confirmation of the comprehensive plan in this case is being deliberated upon for the confirmation of the comprehensive plan in this case. For the purpose of the project, the defendant is also under deliberation by the Urban Planning Deliberation Committee to hear the residents' opinion to designate the area, district, etc. in accordance with Article 8 of the National Land Planning Act and the Building Act to limit the development permission and building permission under the National Land Planning Act for the purpose of the project, and it is determined that it is necessary to prevent not only the property loss of an individual due to the act at the time the development is expected, but also the cost of social expenses, etc. is not completed at the stage of final design and announcement, and thus return the application for permission for development activities.

2) The instant forest is designated as a planned control area under the National Land Planning and Utilization Act, and is designated as a returned district area under the Special Support Act.

Pursuant to subparagraph 5 of Article 2 and Article 7 of the Special Act on Support, the Governor of the Gyeonggi-do established the instant comprehensive plan for the development of areas adjacent to the districts adjacent to the districts located in Gyeonggi-do, returned districts and returned districts, and the Ministry of the Interior and Safety confirmed the instant comprehensive plan on July 22, 2011. The Defendant, around 201, planned the instant project to promote the instant project, including the instant forest, in the manner of implementing an urban development project, J. I. K. L. L. L. project, with the content of construction of facilities, residential facilities, commercial facilities, educational facilities, cultural facilities, accommodation, sports facilities, sports facilities, etc. on the land located in Gyeonggi-do. On May 4, 2011, the Defendant, a private business entity, prepared a memorandum of understanding on the implementation of the project and the compliance of the project.

On November 23, 2011, the Defendant applied for the revision of the instant comprehensive plan to the Gyeonggi-do Governor to include the instant comprehensive plan, and on May 9, 2012, the Gyeonggi-do Governor changed the instant comprehensive plan to include the instant project, and submitted it to the Minister of Public Administration and Security. The Minister of Public Administration and Security finalized the instant comprehensive plan including the instant project on October 18, 2012.

In order to promote the instant project on April 27, 2012, the Defendant planned to designate the project site of 3,720,000 square meters including the instant forest as a restricted area for development permission under Article 63 of the National Land Planning Act, and held a public hearing for residents pursuant to the relevant statutes. On May 18, 2012, the Defendant: (a) designated and publicly announced the whole project site including the instant forest as a restricted area for development permission for the purpose of systematic land use management as an area promoting an urban development project for balanced regional development and securing urban competitiveness after undergoing procedures under the relevant statutes; and (b) to the purport that “the restriction of development activities for the purpose of systematic land use management” is expected to be significantly changed due to the alteration of the relevant

(b) whether the reasons for the disposition can be added or modified;

1) In an appeal seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of confidence in the people who are the other party to the administrative disposition, the agency can add or modify other reasons only to the extent that the basic facts are identical to the original disposition, and it is not allowed to assert as a ground for disposition on the ground that there is a separate fact that is not recognized as identical to the basic facts. The existence of the basic facts in this context is determined based on whether the social factual relations, which are the basis of the disposition, are identical in basic aspects, based on the specific facts before the legal evaluation of the ground for disposition (see, e.g., Supreme Court Decision 2000Du8684, Sept. 2

2) Examining the facts in light of the above legal principles, the original disposition of this case is based on the grounds and reasons for the disposition of this case at the time of the disposition of this case, and the application for permission for change of form and quality is reserved until the site pursuant to the comprehensive plan of this case including the project of this case is determined in the future, in the situation where development is expected such as the implementation of the project of this case against one party, including the forest of this case, and the land of this case is added to the lawsuit of this case. The ground for disposition as to Article 58 (1) 4 of the National Land Planning and Utilization Act, which the defendant added to the lawsuit of this case, is a huge obstacle to the project of the comprehensive and integrated plan of this case, so it cannot be viewed that it is in harmony with the land use plan of neighboring areas. Thus, the purport of the disposition of this case is that the forest of this case is included in the land use plan of this case in relation

Therefore, the defendant can add the conflict of Article 58 (1) 4 of the National Land Planning and Utilization Act to the grounds for disposition within the same scope as the original grounds for disposition and basic facts.

C. Whether the disposition of this case is unlawful

1) In full view of the relevant provisions regarding permission for development activities under the National Land Planning Act, permission to change the form and quality of land under Article 56(1)2 of the same Act is defined as an indefinite concept, and thus, administrative agencies are granted discretion in determining whether the prohibition requirements are met. Meanwhile, in the judicial review of discretionary actions by an administrative agency, considering the possibility of an administrative agency’s discretion to determine the public interest based on the discretion of the administrative agency, the court should only examine whether the act in question is a deviation or abuse of discretion, and the review is subject to determination of erroneous determination of facts, proportionality, and equality (see, e.g., Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 2009Du1960, Feb. 25, 2010; 201Du2569, Aug. 25, 2011).

2) As can be seen from the facts as seen earlier, the forest of this case was designated as a planned management area under the National Land Planning Act; the comprehensive plan of this case including the project of this case was waiting for approval by the Minister of Public Administration and Security under the Special Act on Assistance; the defendant was proceeding to designate the project site including the forest of this case as a restricted area for development activities in order to systematically use and manage the land in preparation for the case where the project of this case is implemented, since the standards for development activities are expected to vary significantly if the project of this case is determined. After the disposition of this case, the Minister of Public Administration and Security approved the comprehensive plan of this case including the project of this case; the defendant designated and announced the project site of this case as a restricted area for development activities; if the forest of this case is determined as the site of the project of this case, it appears that the plaintiff would have to remove the building site after obtaining permission of the development activities of this case, and it is difficult to conclude that the comprehensive development application of the development activities of this case would cause interference with the implementation of the project of this case, including the permission of this case.

D. Nevertheless, the lower court determined that the instant disposition was unlawful on the ground that the instant development act does not conflict with Article 58(1)4 of the National Land Planning and Utilization Act, even if the grounds for disposition under Article 58(1)4 of the National Land Planning and Utilization Act were not identical to the original grounds for the instant disposition, and that there is no evidence to acknowledge that there is a serious need for public interest in the instant disposition. In so doing, the lower court erred by misapprehending the legal doctrine on the addition and modification of the grounds for disposition and the deviation and abuse of discretionary power in the permission for development activities under the National Land Planning and Utilization Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.