[1] Whether an administrative agency has discretion to determine whether to grant permission for a business charging liquefied petroleum gas for motor vehicles in a development restriction zone (affirmative), and the limitation of discretion

[2] Whether a person who intends to conduct a business charging liquefied petroleum gas for motor vehicles in a development restriction zone shall obtain permission under the former Safety Control and Business of Liquefied Petroleum Gas Act and permission under the former Act on Special Measures for Designation and Management of Development Restriction Zones (affirmative), and whether the permission-granting authority may determine whether to grant permission in accordance with the former Ordinance on Special Measures for Designation and Management of Development Restriction Zones and the provisions of the former Ordinance on Special Measures for Designation and Management of Development Restriction Zones and the provisions of the

[3] In a case where the provision of a statute grants the authority to determine the specific matters of the statute to the permitting authority without specifying the procedure or method for exercising the authority, the validity of the public notice specifying the matters to be the contents of the statute, and where the permitting authority determines the criteria for permission within the scope of delegation, the validity of the permit / Whether the above legal principle is equally applied to a liquefied petroleum gas charging station plan formulated by the head of a Si/Gun/Gu based on the former Act on Special Measures for Designation

[1] Article 3(1)6 (see current Article 5(1) and (2) (see current Article 6(1)6), Article 4(2) (see current Article 6(2)) of the former Enforcement Decree of the Act on Special Measures for the Designation and Management of Areas of Restricted Development (Amended by Act No. 11838, May 28, 2013); Article 12(1) and (7) (see current Article 12(8)) of the former Enforcement Decree of the Act on Special Measures for the Management of Areas of Restricted Development (Amended by Act No. 11690, Mar. 23, 2013); Article 13(1) [Attachment 1] 5(1) and (2) of the former Enforcement Decree of the Act on Special Measures for the Designation and Management of Areas of Restricted Development (Amended by Act No. 1181, Oct. 30, 2013; Article 201 of the former Enforcement Decree of the Act on Special Measures for the Management of Areas of Restricted (Amended by Act No. 106)

[1] Supreme Court Decision 2005Du1466 Decided June 14, 2007, Supreme Court Decision 2015Du36751 Decided July 23, 2015 / [2] Supreme Court Decision 96Nu1972 Decided March 27, 1998 (Gong198Sang, 1221) / [3] Supreme Court Decision 2000Du7933 Decided September 27, 2002 (Gong200Ha, 2595) Supreme Court Decision 2005Du10323 Decided February 22, 2005

Plaintiff (Law Firm Barun, Attorneys Park Il-hwan et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Attorney Cho Jong-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Nu20372 decided February 14, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. A. Article 3(1) of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “ Liquefied Petroleum Gas Act”) provides that a person who intends to conduct a liquefied petroleum gas filling business shall obtain permission at each place of business from the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, or Special Self-Governing Province Governor at each place of business, and Article 4(1) of the same Act provides that when he/she receives an application for permission for a liquefied petroleum gas filling business, he/she shall grant permission where he/she satisfies all of the following requirements, and Article 4(1) of the same Act provides that “this Act and other Acts and subordinate statutes shall be complied with,” and Article 4(2) of the same Act provides that detailed matters concerning the requirements for permission under subparagraphs 1 through 3 of paragraph (1)

Meanwhile, Article 12 of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 11838, May 28, 2013; hereinafter “Development Restriction Zones Act”) prohibits, in principle, construction of buildings in development restriction zones. However, buildings prescribed by Presidential Decree as facilities for residential, living convenience and livelihood of residents in development restriction zones may be constructed with permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu, and the detailed criteria for permission are prescribed by Presidential Decree under paragraph (7) of the same Article. Accordingly, Article 13(1) [Attachment 1] of the former Enforcement Decree of the Development Restriction Zones Act (amended by Presidential Decree No. 24818, Oct. 30, 2013; hereinafter “Enforcement Decree of the Development Restriction Zones”) provides for the detailed criteria for permission under subparagraph 5(e) of [Attachment 1] of Article 12 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones, which are facilities for Residents.

In full view of the provisions of the above relevant Acts and subordinate statutes, permission for a business charging liquefied petroleum gas in a development-restricted zone is defined as an indefinite concept, and thus administrative agencies are granted discretion to determine whether to grant permission. Thus, the administrative agency, which is the permission-granting authority, may determine whether to grant permission by examining the requirements prescribed by the Liquefied Petroleum Gas Act and the criteria for permission prescribed by municipal ordinances, and the detailed criteria for permission prescribed by the Enforcement Decree of the Development Restriction Zone Act [Attachment 2] within the scope of its discretion, and unless the administrative agency’s judgment does not constitute misconception of facts, violation of the principle of proportionality and equality, violation of the purpose, etc., it cannot be deemed that it constitutes deviation and abuse of discretionary power (see Supreme Court Decisions 2005Du1466, Jun. 14, 2007; 2015Du36751, Jul. 23, 2015, etc.)

B. In addition, in a case where the laws that have different legislative purposes stipulate the requirements for certain acts, permission under the provisions of each Act shall be obtained with respect to such acts, unless it is clear that the Act applies exclusively in preference to other Acts and subordinate statutes. In this case, the relevant Acts and subordinate statutes concerning permission are invoked, or where it is obvious that such acts are absolutely prohibited by other Acts and subordinate statutes and it is objectively impossible to do so, etc. (see, e.g., Supreme Court Decisions 94Nu3216, Jan. 12, 1995; 96Nu19772, Mar. 27, 1998).

As above, the Liquefied Petroleum Gas Act and the Development Restriction Zone Act separately provide for each of the requirements for permission, and in light of the legislative purpose, regulations, scope of application, etc., the Liquefied Petroleum Gas Act is not construed to have an exclusive relation prior to the Development Restriction Zone Act. Thus, a person who intends to conduct a motor vehicle filling business in a development restriction zone must obtain permission for motor vehicle filling business under the Liquefied Petroleum Gas Act and permission for a liquefied petroleum gas filling station for motor vehicles under the Development Restriction Zone Act. However, Article 4(1)6 of the Liquefied Petroleum Gas Act provides that “it shall conform to this Act and other Acts and subordinate statutes.” As such, the permission-granting authority may decide whether to grant permission in accordance with the development restriction zone Acts and subordinate statutes and the regulations on the plan for the placement of liquefied petroleum gas filling stations for motor vehicles based on the application for permission for a motor vehicle filling business under the Development Restriction Zone Act (see, e

C. Meanwhile, in a case where a provision of a law grants the authority to determine the specific matters of the law to a permitting authority, and there is no procedure or method for exercising the authority, the public notice of the permitting authority that specifically provides the matters to be the contents of the law is effective in combination with the provision of the law, unless it goes beyond the limit of delegation by the pertinent law and its Enforcement Decree. If the permitting authority has determined the permission standards within the scope of delegation, barring special circumstances such as where the contents of the permission standards are clearly contrary to the purpose or fundamental purport of the relevant law, it cannot be deemed that the permission standards are invalid (see Supreme Court Decision 2000Du7933, Sept. 27, 2002). Such a legal principle likewise applies to a liquefied petroleum gas charging placement plan formulated by the head of a Si/Gun/Gu based on the development-restricted zone law (see Supreme Court Decision 2005Du10323, Feb. 22, 2005).

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts are revealed.

A. (1) On November 9, 2001, the Defendant publicly announced the Seocho-gu Seoul Metropolitan Government Public Notice on the “Plan for and Criteria for the Disposition of Liquefied Petroleum Gas Filling Station for Motor Vehicles (hereinafter “Stop station”) within the Seocho-gu development restriction zone” (hereinafter “instant public notice”). According to the instant public notice (hereinafter “instant plan for the placement of charging station”), two charging stations are placed on the first and second routes of Hunne-ro, and one charging station is placed on the third routes of the route.

(1) Route 1: One motor vehicle on the south side of the hill road, 4.82 km of the length of the route, 30 meters in width, from the section ( Address 1 omitted), from ( Address 2 omitted) to (location 2 omitted), and the number of charging stations.

(2) Route 2: One motor vehicle on the north side of the route, 4.82 km of the length of the route, 30 meters in width, from the section ( Address 3 omitted), ( Address 4 omitted), from the point ( Address 3 omitted), and the number of charging stations.

(3) Route 3: The south side of the runway, 1.84 km of the length of the route, 50m width, section ( Address 5 omitted) through ( Address 6 omitted) and one filling station number.

(2) After that, on May 11, 2006, the Defendant amended the instant public notice under Article 2006-36 of the Seocho-gu Seoul Metropolitan Government public notice (hereinafter “instant public notice of amendment”). Article 2 of the Addenda of the instant public notice of amendment provides, “The subject of receipt of an application for the installation of a charge station by this public notice shall be limited to the routes on the south side of the northwest and the south side of the west-ro No. 2 among [Attachment 1].”

B. On November 16, 2011, the Plaintiff was a development-restricted zone designated by the Defendant from the development-restricted zone Act, and was granted a land transaction permit for the Seocho-gu Seoul Metropolitan Government (No. 7 omitted) and two parcels, the land transaction area of which is located within the land transaction permitted zone as prescribed by the National Land Planning and Utilization Act (hereinafter “instant land”). The Plaintiff completed the registration of ownership transfer under the Plaintiff’s name on November 29, 201.

C. (1) On September 19, 2012, the Plaintiff filed an application for permission for a liquefied petroleum gas filling business under the Liquefied Petroleum Gas Act with the Defendant on September 19, 2012, while the instant land was located in the section 1 of the instant charging station placement plan.

(2) On September 27, 2012, the Defendant rendered the instant disposition of refusal with respect to the Plaintiff’s instant application for permission, and one of the grounds for refusal, Article 2 of the Addenda of the instant amendment provides that the subject of the instant application for the installation of a charging station shall be limited to the second and third routes in the instant disposition plan for the placement of a filling station, and the instant land is not an area subject to the application for the installation of a filling station in the first route (prone side of the instant disposition).

3. We examine the above facts in light of the legal principles as seen earlier.

Based on the proviso of Article 12(1)1(e) of the Development Restriction Zone Act, Article 13(1) [Attachment 1] [Attachment 5] 5(e) of the Enforcement Decree of the Development Restriction Zone Act, the Defendant, who is the permission-granting authority, may establish and amend (revision) the instant public notice on the plan for charging facilities in Seocho-gu Development Restriction Zone, reflecting the guidelines for formulating placement plans prescribed in Article 7 of the Enforcement Rule of the Development Restriction Zone Act, and the instant public notice on the amendment is effective in combination with the provisions of the Development Restriction Zone Act and the Enforcement Decree of the Development Restriction Zone Act

Meanwhile, Article 2 of the Addenda to the Public Notice of the instant amendment provides that the Defendant shall inevitably change the installation of gas stations or liquefied petroleum gas filling stations for automobiles due to the construction and expansion of roads or significant increase in traffic volume, etc. In order to additionally install the filling stations, it cannot be concluded that the number of charging stations should be reduced due to inevitable reasons due to the construction and expansion of roads or significant increase in traffic volume, and thus, Article 2 of the Addenda to the Public Notice of the instant amendment cannot be concluded to have exceeded the delegation scope of the amended development restriction zone pursuant to the delegation of the Act on Development Restriction Zones. Moreover, Article 7 Subparag. 3 of the Addenda to the Public Notice of the instant amendment provides that “The allocation plan shall be changed only where it is inevitable to install the gas stations or liquefied petroleum gas filling stations for automobiles due to the construction and expansion of the filling stations or the modification of the installation plan of filling stations.” Thus, it cannot be concluded that the installation of filling facilities exceeds the delegation scope of the Act on Development Restriction and Public Notification of the instant amendment or the modification of the Act.

In addition, in order for the Plaintiff to conduct a liquefied petroleum gas filling business on the instant land which is a development restriction zone, permission under the Liquefied Petroleum Gas Act and permission under the Development Restriction Zone Act should be obtained. Since Article 4(1)6 of the Liquefied Petroleum Gas Act provides that “it shall conform to this Act and other Acts and subordinate statutes,” the Defendant may decide whether to grant permission in accordance with the Development Restriction Zone Act and the instant amendment notice based thereon.

Therefore, it seems lawful for the Defendant to refuse the Plaintiff’s application for permission on the ground that the instant land was not located in the Seocho-gu development restriction zone pursuant to Article 2 of the Addenda to the Public Notice of the instant amendment.

4. Nevertheless, the court below erred by finding that the Defendant could modify the public notice of this case only where the Defendant should install a charging station on the ground of Article 7 subparagraph 3 of the Enforcement Rule of the Development Restriction Zone Act, and on the premise thereof, the Defendant’s de facto modification of the public notice of this case by excluding the portion of the route 1 from the area subject to the installation of a charging station pursuant to Article 2 of the Addenda of the Public notice of the Amendment of this case was in violation of the guidelines for formulating a plan for placement under Article 7 subparagraph 3 of the Enforcement Rule of the Development Restriction Zone Act, and thereby exceeded the scope of delegation of the Act, and thereby, determined that

Therefore, such judgment of the court below is erroneous in the misapprehension of legal principles as to the interpretation of Article 4 (1) 6 of the Liquefied Petroleum Gas Act, Article 12 (1) 1 (e) of the Development Restriction Zone Act, Article 13 (1) [Attachment 1] 5 (e) (e) and 10 of the Enforcement Decree of the Development Restriction Zone Act, Article 7 of the Enforcement Rule of the Development Restriction Zone Act and the validity of Article 2 of the Addenda of the Amendment Public Notice. The ground of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)