(Cheongju)The confirmation of invalidity of a disposition to authorize an implementation plan for a planning facility project

1. A;

2. B

3. C

4. D;

[Defendant-Appellant] Defendant 1

Audio Gun

E A.

Law Firm Han-tae, Counsel for the plaintiff-appellant

[Defendant-Appellee]

Cheongju District Court Decision 2019Guhap5514 Decided July 25, 2019

December 18, 2019

January 15, 2020

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal, including the part arising from the supplementary participation, shall be borne by the Plaintiffs.

The judgment of the court of first instance is revoked. The defendant's disposition to authorize an implementation plan for one-year planning facility (sports facility-F) on October 20, 2017 is invalid.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as follows, since it is necessary to revise or additionally determine the relevant part of the judgment of the court of first instance as to the part of the plaintiffs' assertion that is emphasized by this court or additionally claimed by this court, it is consistent with the reasoning of the judgment of the court of first instance, except where the following judgment is added. Thus, it is acceptable to accept it as it is by Article 8(

2. The judgment of this Court

(a) Requirements for invalidation of an administrative disposition: serious and clearness of a defect;

In order for an administrative disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition. The defect is a serious violation of the important part of the law, and it must be objectively clear. In determining whether the defect is serious and clear, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective as well as reasonable consideration on the specificity of the specific case itself (see, e.g., Supreme Court Decision 95Da7451, Jan. 26, 1996). Since a lawsuit seeking nullification of the administrative disposition is not subject to any limitation on the period for filing a lawsuit, it is necessary to ensure the smooth implementation of the administration by ensuring the legal stability of the administrative disposition, while protecting the third party or public trust that the administrative disposition is believed to be effective. Meanwhile, in an administrative litigation seeking nullification of the administrative disposition, the plaintiffs are liable to assert and prove the grounds for invalidation (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010).

In this case where a project implementer was designated on July 17, 2017 and an implementation plan for a project for a planned facility (sports facility) project was approved on October 20, 2017, and the project is underway, the aforementioned legal doctrine shall also apply.

B. Correction and Additional Determination

1) The Plaintiffs asserted that, in order to meet the requirements for consent to the designation of a project implementer, land owners should consent to not only the use of land but also the designation of a project implementer. Since the written consent to land use (Evidence B No. 5) submitted by the Defendant’s Intervenor does not state that the project implementer becomes the Defendant’s Intervenor and that the project implementer consents thereto, the designation of the project implementer in this case is automatically null and void because of serious and apparent defects that failed to meet the requirements for consent, and as long as the designation of the project implementer in this case, which is the prior disposition, is null and void

The purport of the National Land Planning and Utilization Act that requires a private business entity to obtain designation as an implementer of an urban/Gun planning facility project is to supplement the public nature of an urban planning facility project implemented by a private business entity and to control unilateral expropriation by a private business entity. In light of such legislative intent, prior to obtaining the consent, prior to obtaining the consent, the purpose of the consent to designate a project implementer, the project implementer designated with the consent, and the project subject to the consent to be implemented with the consent should be specified, and the information should be provided to the landowner (see, e.g., Supreme Court Decision 2016Du48416, Jul. 24, 2018).

In this case, according to the evidence No. 5 (written consent for land use), the defendant's intervenor urged the consent form "written consent for land use" from the land owner. The consent form stated "1. Real estate indication, 2. total consent area, and 3. Use: Development of golf courses: Development of golf courses: 3." The land user can recognize the fact that the defendant's intervenor is stated. However, it is hard to see that the information of the defendant's intervenor is clearly specified for the purpose of the consent that is to designate the project implementer, and it is hard to see that the project implementer has provided the land owner with the information of the defendant's intervenor, and there is no other evidence to acknowledge it, it cannot be viewed that the defendant's intervenor, who is the private project operator, is designated as the implementer of the urban planning facility project. Accordingly, the designation of the project implementer of this case does not meet the essential requirements for the consent form.

Furthermore, in light of the health stand, as seen earlier, the decision of the planning facility to newly establish a golf course, which is an urban planning facility (sports facility) on the instant site, was already publicly announced as to whether the instant project operator’s designation is null and void as a matter of course, the consent to use the said land is also indicated as “all matters of authorization and permission relating to the creation of a golf course for the purpose of use,” and the land user is specified as the Defendant and the Intervenor, and the interpretation of the scope of information to be provided at the time of the designation of the instant project operator or the legal principles on the scope of information to be provided has not been clearly established, as to whether the instant project operator’s designation was void as a matter of course, it cannot be deemed that the defects failing to meet

Therefore, the plaintiffs' above assertion on different premise is without merit.

2) The Plaintiffs asserted that, on June 22, 2017, P transferred ownership 100/1,464 of the voice group land owned by P, and changed the total number of landowners within the instant site from 14 to 25. Of them, 13 landowners, including S Co., Ltd., P, P, and 10, agree to use the land, and the consent requirement of at least 1/2 of the total number of landowners was formally satisfied. However, in order to meet the landowner’s consent requirements, P transferred false shares to 10 persons, the above R and 10 persons should be excluded when calculating the total number of landowners, and therefore, the instant project operator’s designation is null and void.

In cases where a registration of ownership transfer is completed through false representation, a person who has completed the registration of ownership transfer cannot be deemed a landowner. However, insofar as the Civil Act adopts the principle of formalities as to the change in real rights, an administrative agency is not obligated to investigate the validity of the cause of ownership acquisition. Barring special circumstances, such as where the juristic act which causes the acquisition of ownership is objectively apparent at the time of examining whether the requirements for consent are met, the designation of an urban planning facility project implementer cannot be deemed null and void merely because it does not satisfy the requirement of consent if a person who has completed

As to the instant case, the statement of No. 5 alone about P's health class and No. 10 others

It is insufficient to recognize the fact that the transfer of shares is a false conspiracy, and even if it is a false conspiracy, there is no circumstance to find that the transfer of shares at the time constitutes a false conspiracy, and it is objectively clear that the transfer of shares at that time constitutes a false conspiracy, and thus, the designation of the project operator at this case cannot be deemed as void as a matter of course. Therefore, the plaintiffs'

3) Since the real estate development project, such as the instant golf course development project, does not fall under the banking business as provided by the Banking Act, the Defendant Intervenor cannot become the main agent of the instant golf course development project, and the Defendant Intervenor’s Intervenor illegally acquired the ownership of the land in the instant site in violation of the Banking Act and met the requirements under Article 96(2) of the Enforcement Decree of the National Land Planning and Utilization Act, and thus, the designation of the instant project implementer is unlawful. However, in full view of the purport of the pleadings as a whole, the Defendant Intervenor’s assertion that the instant project implementer was unlawful. However, in light of the overall purport of the pleadings, the Plaintiff’s assertion is recognized as having operated trust business as a trust business entity, a collective investment business entity, pursuant to Article 6(9) of the Financial Investment Services and Capital Markets Act, and acquired the ownership of the land in the instant site.

3. Conclusion

Therefore, the plaintiffs' claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is justified with this conclusion, the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges territorial jurisdiction of the presiding judge

Judges Lee Chang-soo

Judges Oather