Plaintiff 1 and eight others (Attorney Park Byung-jin, Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Han-ro, Attorneys Ha Tae-ro, Counsel for defendant-appellant)

December 8, 2017

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition of permission to engage in development activities on September 5, 2016 and the disposition of permission to engage in construction on December 23, 2016 on forest land of 694 square meters in Gangnam-gu Seoul ( Address 1 omitted) with respect to MPK group and the Nonparty Co., Ltd. and the Nonparty is revoked.

1. Details of the disposition;

A. On March 9, 2001, the Nonparty acquired a root of 694 meters of forest land in Gangnam-gu, Seoul ( Address 1 omitted), etc. (hereinafter “the instant forest”). On August 12, 2002, the Nonparty filed an application for permission to change the form and quality of the instant forest land with respect to the Defendant on August 12, 2002. The instant forest is a green area with low gradient, adjacent to ○○○ △△△△△ apartment (hereinafter “instant apartment”) located in the east-dong, △△△△△△ apartment (hereinafter “instant apartment”). The instant forest is adjacent to the instant apartment road, adjacent to the instant apartment site, adjacent to the south-gu, △△△△△△ apartment (hereinafter “instant apartment”). The location map and the cadastral map are as follows.

(F) The following forest is omitted:

B. On October 1, 2002, the Defendant rendered a disposition of return of the Nonparty’s above application, and the Nonparty’s disposition of return was revoked in a lawsuit seeking revocation of the above disposition of return, which was filed by the Nonparty, and the part concerning the forest land of this case was revoked and confirmed (Seoul Administrative Court Decision 2002Guhap41715, Sept. 19, 2003; Seoul High Court Decision 2003Nu18844, Dec. 24, 2004; Supreme Court Decision 2005Du1107, May 12, 2005).

C. A company MPK (the trade name of March 31, 2017 was changed to “MP group”) and the Nonparty (the representative director of the said company up to March 31, 2015; hereinafter “Nonindicted, etc.”) filed an application for permission to engage in the instant forest development activities on February 2, 2016. The Defendant accepted the said application on September 5, 2016, and granted permission to engage in the instant forest development activities to the Nonparty, etc. pursuant to Article 56(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”).

D. On November 23, 2016, the Nonparty, etc. filed an application with the Defendant for a building permit to construct a new building for the purpose of the instant forest land of eight and five stories underground and education and research facilities. On December 23, 2016, the Defendant accepted the said application and issued a building permit to the Nonparty, etc. on the instant forest land pursuant to the main sentence of Article 11(1) of the Building Act (hereinafter the aforementioned development permit and the said building permit are combined, and thus referred to as “each of the instant dispositions”).

E. The plaintiffs are residents of the apartment of this case.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 12, 14 (including branch numbers, if any; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's main defense

The Plaintiffs do not have a legal interest to seek revocation of each of the dispositions of this case, since they were a third party, who is not the other party directly to each of the dispositions of this case, and thus does not have any legal interest to seek revocation of the dispositions of

B. Determination

A third party, who is not the direct counter-party of an administrative disposition, is eligible to file a lawsuit seeking revocation, where legal interests protected by the administrative disposition concerned are infringed. Here, legal interests refer to cases where there are individual, direct, and specific interests protected by the basis laws and regulations of the disposition concerned and relevant laws and regulations. However, this does not include cases where a person has a factual and economic interest, such as general, indirect, and abstract interests common to the general public as a result of protecting public interest, and legal interests protected by the basis laws and regulations of the disposition concerned are not protected by the express provisions of the underlying laws and regulations of the disposition concerned, but the legal interests protected by the underlying laws and regulations of the disposition concerned are not protected by the underlying laws and regulations of the disposition concerned, but are clearly protected by the underlying laws and regulations of the disposition concerned, the legal interests clearly protected by the underlying laws and regulations of the disposition concerned, and the reasonable interpretation of the applicable laws and regulations are interpreted to include individual, direct, and specific interests protected by the administrative agency as well as pure public interests (see, e.g., Supreme Court en banc Decision 2006Du3716.

Article 56(1) of the National Land Planning and Utilization Act provides that “any person who intends to engage in development activities, such as construction of buildings, shall obtain permission from the head of the competent Si, etc.” Article 58(1)4 of the same Act provides that “The land utilization conditions of surrounding areas or land utilization plans, height of buildings, gradient of land, status of trees, water drainage, drainage of river, lake and marsh, and wetlands, etc. shall be in harmony with surrounding environments or landscape,” and Article 58(3) of the same Act provides that permission for development activities shall be determined by Presidential Decree according to the classification of specific use areas, taking into account the characteristics of the relevant area, development conditions of the relevant area, and current status of infrastructure, etc.” Article 56(1) [Attachment 1-2] subparagraph 1-D (2) of the Enforcement Decree of the National Land Planning and Utilization Act provides that “Where there is no concern that environmental pollution, water pollution, noise, vibration, dust, etc. may occur in the relevant area and its surrounding areas due to such development activities may be subject to the permission for development activities under the National Land Planning Act.”

As seen earlier, since the plaintiffs reside in the apartment building of this case adjacent to the forest of this case, it shall be deemed that the legal interests are infringed or are likely to be infringed if a building for the purpose of use of the residential facilities of the 8th and the 5th underground floors is newly constructed on the forest of this case, which is a green belt.

Therefore, the plaintiffs are recognized as standing to sue as a third party having legal interest to claim revocation of each of the dispositions of this case. The defendant's prior defense on the merits is without merit.

3. Judgment on the merits

A. The plaintiffs' assertion

On May 15, 2008, the Mayor of Seoul Special Metropolitan City made a decision on a park building plan (revision) with the content that the instant forest is incorporated into ○○ Green Park, and on May 4, 2016, he/she made a decision on May 15, 2008, to include the instant forest in “○○ Green Park.” Since the park building plan under the relevant statutes is determined by an urban management plan (Article 16-2(1) of the Park and Greenbelts Act, Articles 30 and 32 of the National Land Planning Act), the aforementioned park building plan (revision) is also subject to an urban management plan (revision) decision. Meanwhile, on December 18, 2008, the Mayor of Seoul Special Metropolitan City decided to exclude the instant land from “○○○ Green Park” park, but on May 4, 2016, the instant forest still included the instant land in the “○○ Green Park” park management plan (hereinafter “○○○”).

Ultimately, in accordance with an urban management plan at the time of each disposition of this case, the forest of this case constitutes a site for a park, which is an urban planning facility. Accordingly, development activities, etc. contrary to such park building plan and urban management plan or impeding the implementation of an urban planning project cannot be permitted, and construction of buildings or installation of structures, which are not urban planning facilities, may not be permitted on the ground or underground determined as the place where urban planning facilities are installed (Article 58(1)2 and 3, and Article 64(1) of

However, each of the dispositions of this case by the defendant is unlawful as it violates the above urban management plan or interferes with the implementation of urban planning projects. Thus, each of the dispositions of this case must be revoked.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) According to the National Land Planning Act, a person who intends to engage in development activities, such as construction of a building or construction of a structure, shall obtain permission from the Special Metropolitan City Mayor, etc.; (2) the Special Metropolitan City Mayor, etc. shall not go against the contents of an urban management plan, etc.; and (3) the Special Metropolitan City Mayor, etc. shall not permit construction of a building or installation of a structure, which is not an urban planning facility, on the ground or a site determined as the place where urban planning facilities, etc. are installed (Article 56(1), Article 58(1)2 and 3, and Article 64(1) main sentence of the National Land Planning Act). The authority of the Seoul Special Metropolitan City Mayor, etc. with respect to the above permission for development activities is delegated to the head of the Gu [Article 139(2) of the National Land Planning Act; Article 68(1) [Attachment 4] of the Seoul Metropolitan

Meanwhile, pursuant to the Act on Urban Parks, Greenbelts, etc., when an urban park management plan, etc. is determined, the Special Metropolitan City Mayor, etc. having jurisdiction over the administrative district in which the relevant urban park is located shall formulate a creation plan for the relevant urban park (hereinafter referred to as "building plan"), and the park building plan, and the alteration thereof shall be determined by the urban management plan, etc. (Article 16(1) and Article 16-2(1)1 and

In full view of the contents of the above Act and subordinate statutes, the determination and alteration of a park building plan shall be based on the determination of an urban management plan concerning the construction of urban parks within the scope of such urban management plan, so the park building plan formulated and decided with the contents that deviate from the scope of the urban management plan cannot be recognized regardless of whether it is erroneous or not. Furthermore, a final and conclusive judgment revoking a disposition, etc. shall also be valid for a third party, and a party administrative agency and other relevant administrative agencies shall bind (Articles 29(1) and 30(1) of the Administrative Litigation Act).

2) The following facts are acknowledged in full view of Gap evidence Nos. 5, 6, 11, Eul evidence Nos. 1, 2, and 3, and the purport of the entire arguments as to the Seoul Special Metropolitan City Mayor.

A) On August 9, 2002, the Defendant abolished a road on the urban planning over the south of the instant forest, and added 13 lots, including the instant land and the instant forest, to 00 square meters, for the purpose of public inspection and announcement for the determination of change of urban planning facilities (park and road), and on September 13, 2002, publicly announced nine lots, including the instant forest, as a restricted area for building permission.

B) On June 21, 2004, the Mayor of Seoul Special Metropolitan City issued a decision to alter an urban management plan (urban planning facilities: parks) that increases the area of the ○○○ Green Park as seen above on June 21, 2004 upon the Defendant’s drafting (hereinafter “previous disposition”). Accordingly, on July 5, 2004, the Defendant prepared and publicly announced an urban management plan (urban planning facilities: parks) topographical drawings (urban planning facilities) under the Gangnam-gu Public Notice No. 2004-38 on July 5, 2004.

C) Accordingly, the Nonparty asserted that “The disadvantage suffered by the Nonparty due to the previous disposition is remarkably larger than the public interest to be achieved thereby, and thus, the instant disposition was unlawful as it lacks legitimacy and objectivity in the balancing between the relevant private interest and public interest,” and thus, was unlawful.” On June 8, 2006, the Nonparty filed a lawsuit against the Mayor of Seoul Special Metropolitan City seeking revocation of the previous disposition (Seoul Administrative Court 2004Guhap28006), and on which June 8, 2006, the said court accepted the Nonparty’s claim and rendered a judgment revoking the previous disposition. While the Seoul Special Metropolitan City Mayor appealed (Seoul High Court 2006Nu15365), it was dismissed on August 11, 207 and its final appeal (Supreme Court 2007Du104955) was dismissed on August 23, 2007, and the judgment revocation of the previous disposition (hereinafter “related judgment”) became final and conclusive at that time.

D) After the relevant judgment became final and conclusive, the decision on park building plans (revision) and the decision on urban management planning (Modification) related to the forest of this case and the details thereof are as listed below.

Details of May 15, 2008 of the decision of the ○○○ Green Park Building Plan (Change), which was included in the main text, on May 15, 2008, (No. 2008-164 of the Seoul Special Metropolitan City Notice) (No. 2008-164), the forest of this case shall be excluded from the park building plan on December 18, 2008, to exclude the forest of this case from the ○○○○ Green Park, which was decided to modify the urban management plan from the ○○○ Green Park, on May 4, 2016, in order to plan the indoor stack in the ○○○○○ Green Park, the forest of this case was partially changed from among the park building plan on May 15, 2008, indicating that the forest of this case was incorporated into the ○○○ neighboring Park Park, and reflected the building volume of the indoor e.g., the forest of this case was excluded from the park building plan on April 20, 2017.

3) In light of the above facts, ① the part of the decision to cancel the previous disposition concerning the forest of this case among the park building plan around 000, which was incorporated into the 000 neighboring park among the decision to modify the urban management plan as of June 21, 2004, was revoked, and the final decision to cancel the disposition, etc. is effective as to the third party (Article 29(1) of the Administrative Litigation Act), and since the defendant, which is the administrative agency concerned, is bound by the defendant (Article 30(1) of the Administrative Litigation Act), after its cancellation, the part concerning the forest of this case among the decision to modify the urban management plan as of June 21, 2004, which was based on the premise that the part concerning the forest of this case among the decision to modify the urban management plan as of May 15, 2008, which was made on the premise that the forest of this case remains effective, and ② the part concerning the forest of this case is not effective in the park building plan as of December 18, 2008,208.

Therefore, the instant forest does not fall under the place determined as the place where urban planning facilities, etc. are installed because it is not included in the site of a park under an urban management plan. Therefore, permission for development and building permit of the instant forest cannot be deemed as violating the urban management plan or hindering the implementation of an urban planning project. The Plaintiffs’ assertion on different premise is without merit.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Hah Tae-hun (Presiding Judge)