[1] Purport of Article 2 of the Addenda of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436 of Feb. 6, 2009) / In a case where an act of permission pursuant to the proviso of Article 12(1) after the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436 of Feb. 6, 2009) expands the total floor area for which permission was previously granted or a new building is first permitted, whether a development restriction zone preservation charge may be imposed by applying Article 21(1) of the amended Act (affirmative

[2] Requirements for the establishment of administrative practices to the extent that an administrative agency is unable to take measures against a specific matter under the principle of trust protection, and whether it violates the principle of trust protection in a case where an administrative agency continues to take a certain disposition by simple mistake and subsequently finds a subsequent error and changes it in a reasonable manner (negative)

[1] Articles 12(1), 21(1), and Article 2 of the Addenda ( February 6, 2009) of the Act on Special Measures for Designation and Management of Development Restriction Zones / [2] Article 4(2) of the Administrative Procedures Act

[1] Supreme Court Decision 2011Du2323 Decided April 11, 2013 / [2] Supreme Court Decision 92Nu14021 Decided June 11, 1993 (Gong1993Ha, 2034)

Korea Railroad Corporation (Law Firm LLC, Attorneys Lee Jong-chul et al., Counsel for the defendant-appellant)

Goyang market (Law Firm Horizontal Trees, Attorneys Kim Gi-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2019Nu47621 decided January 14, 2020

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

The grounds of appeal are examined.

1. Case summary and key issue

A. The reasoning of the lower judgment and the record reveal the following circumstances.

(1) The Plaintiff is the operator of the construction project of the Seoul rolling stock base and maintenance shop for the light-speed rail (hereinafter “instant project”).

(2) In relation to the instant business, the Plaintiff obtained permission to engage in an act in a development-restricted area for the alteration of the form and quality of land of 1,280,00 square meters from the Defendant on December 29, 1995 and the construction of 24 Dong-dong (212,369 square meters) of the total floor area of the 1,280,000 square meters from the Defendant on December 29, 1995 (hereinafter “the first permission to engage in an act”). On October 14, 200, the Plaintiff obtained a permission to engage in an act for changing the form and quality of land into 1,354,122 square meters, the total area of the construction into 1,354,122 square meters, the total area of the building to 204,994 square meters, and the first permission to engage in an act for the alteration of the form and quality of land into 1,364,94 square meters.

(3) On July 11, 2017, the Plaintiff filed an application for permission to engage in an act in a development-restricted area with the content of increasing the total floor area of a building by 700.32 square meters without additional alteration of the form and quality of the building, in order to extend the 98,224 square meters in the land for the railway in Gyeyang-gu ( Address 1 omitted) in Gyeyang-gu (hereinafter “the area for which the alteration of the form and quality was permitted by the initial permission was included in the area for which the alteration of the form and quality was permitted by the initial permission. The Seoul-gu head of the Gu permitted the act on August 11, 2017 (hereinafter “instant permission to engage in the act”). The total site area indicated in the instant permission to engage in the act in this case is 1,314,46 square meters, the total floor area of a building is 206,386 square meters, and the total area of a building is 700.322 square meters in the area of a building.

(4) On August 21, 2017, the Defendant rendered a disposition imposing KRW 536,410,100 of the charges for preserving development restriction zones pursuant to Articles 21 and 24 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”) on the Plaintiff on the ground that the instant permission was granted (hereinafter “instant disposition”).

B. The key issue of the instant case is (1) whether the instant permission for acts in relation to the interpretation and application of Article 2 of the Addenda to the Act on February 6, 2009 (Act No. 9436 of Feb. 6, 2009) can be subject to the preservation charge for development restriction zones, and (2) whether the instant disposition is contrary to the public opinion list of public officials belonging to the Defendant, who would not impose the charges in relation to the instant permission for acts in violation of the principle of trust protection.

2. Whether development restriction zones are subject to charges to preserve;

A. (1) Article 12(1) of the Development Restriction Zone Act prohibits, in principle, the construction and alteration of a building, the installation of a structure, the alteration of the form and quality of land, the cutting of bamboo and trees, the division of land, the piling of goods, or the implementation of an urban/Gun planning project under Article 2 subparag. 11 of the National Land Planning and Utilization Act within a development restriction zone. However, in the case of acts falling under any of the following subparagraphs, permission may be granted exceptionally by the head of a Si, etc. In addition, Article 21(1) of the Development Restriction Zone Act provides that “a person who fails to present a restoration plan or is going not to perform restoration from among the development restriction zones” (Article 12(1) or “a person who has obtained permission under the proviso to Article 12(1) or Article 13 (including cases where permission under the proviso to Article 12(1) is deemed to have been granted, or permission under consultation under the proviso to Article 13 is deemed to have been granted” (Article 2).

(2) Article 21(1) proviso to Article 12(1) or Article 13 of the former Act on Special Measures for Designation and Management of Development Restriction Zones prior to the amendment by Act No. 9436 of Feb. 6, 2009 provides that “A person who has obtained permission under the proviso to Article 12(1) or Article 13 (limited to permission to change the form and quality of land or permission to change the form and quality of land, but including permission that is deemed granted under the proviso to Article 12(1) or Article 13 pursuant to other Acts and subordinate statutes shall impose and collect “charges damaged in development restriction zones” to impose and collect “charges damaged in development restriction zones” on and from “a person who has obtained permission under the proviso to Article 12(1) shall only be subject to charges.”

The Act on February 6, 2009 amended the Development Restriction Zones (Act No. 9436, Feb. 6, 2009) changed the name of the charge into “development restriction zone charges” (hereinafter “charges”). Meanwhile, in cases of permission to engage in activities within development restriction zones pursuant to Articles 21(1) through 12(1) proviso, “permission to construct a building” in addition to “permission to change the form and quality of land,” includes “permission to change the form and quality of land,” and “the area of the land subject to permission” in Article 24(2) is to be based on “the changed form and quality of land permitted and the area twice the floor area of the building.”

As a result, “building permission for a building that does not entail any change in the form and quality of land” was also subject to charges, and Article 2 of the Addenda of the above amended Act provides, “The amended provisions from Articles 21 to 26 shall be cancelled from the first development restriction zone after this Act enters into force and the decision of the development plan is made in accordance with Article 4(5) or the permission is granted in accordance with the proviso of Article 12(1) or Article 13 (hereinafter referred to as “the supplementary provisions of this case”).”

(3) The purpose of the supplementary provision of this case is to ensure legal stability by clearly stipulating that in a case where a person was subject to an act under the proviso of Article 12(1) prior to the enforcement date of the amended Act ( August 7, 2009), but was not subject to a charge under the previous provision, it would not be subject to a charge retroactively by applying Article 21(1) of the Act on the Development Restriction Zones, which was already established in a legal relationship, to be subject to a charge.

Considering the legislative purport of the development restriction zone system itself, which seeks to secure financial resources for preserving and managing development restriction zones, and the legislative purport of the Addenda provision of this case, even in cases where permission for acts pursuant to the proviso of Article 12 (1) was obtained after the amended Act enters into force, if the content of the construction plan is partially modified with respect to the permission for acts already obtained prior to the enforcement date of the amended Act, or the permission conditions are partially modified, such as extension of the period of permission, etc., it shall not be imposed by applying Article 21 (1) of the Development Restriction Zone Act (see Supreme Court Decision 2011Du2323, Apr. 11, 2013). However, if the permission for acts pursuant to the proviso of Article 12 (1) after the amended Act enters into force extends the previous permitted total floor area, or the permission for construction of a new building is first granted, the charges should be imposed by applying Article 21 (1) of the Development Restriction Zone Act.

B. Examining the facts in light of the aforementioned legal principles, the following determination is possible.

(1) As the Development Restriction Zone Act was amended by Act No. 9436, Feb. 6, 2009, a charge was imposed for the act of constructing a building without changing the form and quality of land in a development restriction zone. The instant act was conducted after the enforcement of the said amended Act. The instant act was not limited to partial changes in the contents of a construction plan while maintaining the total floor area of the building permission granted, such as initial permission, or partial changes in the conditions of permission, such as the extension of the period of permission. However, the instant act is not limited to partial changes in the contents of the construction plan, such as the extension of the period of permission. The instant act is extended to extend the total floor area of the instant wheeler (under the records, the Plaintiff obtained the “extension permission” under the Building Act, but is not combined with the existing building, and thus does not seem to fall under substantial construction) and thus, it is necessary to impose the charge by applying Article 21(1) of the Addenda

(2) Nevertheless, the lower court determined that Article 21(1) of the Act on the Development Restriction Zones amended by the instant supplementary provision does not apply to the instant permission, which constitutes a permission to change the content of the instant permission. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the supplementary provision of the instant case, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Whether it violates the principle of protection of trust;

A. In general, in order to apply the principle of trust protection to an act of an administrative agency, the administrative agency should name the public opinion that is the subject of trust to an individual, and the administrative agency should not be responsible for the trust of the individual. (2) The individual should have trusted that the name of the opinion is legitimate and trusted; (3) the individual should have committed any act corresponding thereto; and (4) the administrative agency should have made a disposition contrary to the name of the opinion so that the interests of the person trusted in the opinion are infringed; and (5) When taking an administrative disposition in accordance with the name of the opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9,

In order for an administrative agency to have established an administrative practice to the extent that it can not take measures against a particular matter under the principle of trust protection, there is an objective fact that it has taken the same disposition over a considerable period of time, as well as an administrative agency's knowledge that it can take different measures with respect to the matter, and there is an intention not to take such a disposition, and such intent should be expressed explicitly or implicitly by the administrative agency. It does not constitute merely a case of continuing any disposition by mistake, but it does not constitute a case of continuing a disposition by mistake, and therefore, it does not contravene the principle of trust protection (see Supreme Court Decision 92Nu14021, Jun. 11, 1993, etc.).

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On July 5, 2016, Nonparty 1, who had worked as the Plaintiff’s ○○○○○○○○○○, visited Goyang-si on July 5, 201 and consulted with Nonparty 2, who had the competent authority at the time, about the matters of authorization, permission, etc. related to the construction of the instant chassis, and prepared a report stating the contents of the consultation, “(the name of the report omitted).” The report states that “The amount of preservation charges can be exempted from imposition as a result of consultation with the Plaintiff.”

(2) After the initial permission for activities, permission for activities in development restriction zones with the content of changing the form and quality of land or increasing the total floor area of buildings was made several times, but the Defendant did not impose charges under the Development Restriction Zone Act on the Plaintiff prior to the instant disposition.

(3) On December 2013, the head of Gyeyang-gu asked the Defendant of the “where permission to engage in activities within a development-restricted zone to build workplace child care centers (hereinafter “instant child care centers”) in relation to the instant project, whether the charges for the preservation of the development-restricted zone are imposed.” The Defendant sent to the Gyeyang-gu head of Geumcheon-gu, Seoyang-gu, that “( Address 1 omitted), the location of a child care center ( Address 2 omitted), ( Address 3 omitted), and ( Address 4 omitted) constitutes a site for which permission to change the form and quality of the land was already granted under subparagraph 1(b) of Article 36 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development-Restricted Zones, and thus, it is known that the subject of exemption from the imposition of the preservation charges is subject to exemption.”

(4) The grounds for exemption from the imposition of charges stated in the above report prepared by Nonparty 1 constitute “the case where the charges have already been paid after changing the form and quality of land have already been changed according to Article 36 subparag. 1(b) of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones.” This is identical to the grounds for exemption from the charges notified by the Defendant to the Geumcheonyang head of the Gu around December 2013.

C. Examining the above facts in light of the legal principles as seen earlier, the following determination is possible.

(1) With respect to the instant project, the first permission for the act was made on December 29, 1995; the Development Restriction Zone Act was enacted on January 28, 200 by Act No. 6241 on July 1, 200 and enforced on July 1, 200. Article 3 of the Addenda of the said Act provides that “The charges shall apply from the portion for which permission was applied under the proviso other than each subparagraph of Article 11(1) or Article 12 after this Act enters into force.” The first permission for the act was not subject to the imposition of the charges. As seen earlier, the Development Restriction Zone Act only imposes only the “permission to change the form and quality of land or permission to change the form and quality of land” among the permission for the act within the development restriction zone, but also includes the building permission for a building that does not result in changing the form and quality of land as amended by Act No. 9436, Feb. 6, 2009.

(2) On the records, it is unclear whether it is subject to charges in the case of other acts related to the instant project. However, in the case of the permission of acts for the construction of the instant childcare center, following the enforcement of the amended Act No. 9436, Feb. 6, 2009, it appears that the Defendant did not impose charges due to erroneous interpretation of the law.

(3) Although Nonparty 2 was in charge of the duty of imposition and collection of charges in relation to the permission of acts in the development-restricted area in the Seocho-gu and the Doyang-gu, the person in charge of the duty of imposing and collecting charges in relation to the permission of acts was separate from the Dosan-si. Nonparty 1, in advance, visited Goyang-gu and consulted on the matters of authorization and permission on the construction of the instant tea wheel-gu and the instant tea wheel-gu without submitting all materials related to the construction of the instant tea wheel-gu in advance. During that process, Nonparty 2 mentioned the possibility that the charge may not be imposed on the same way in light of the previous cases of the Child Care Center, and it does not seem to be the result of the review of necessary legal principles.

(4) If circumstances arise, even though Nonparty 2 said that it is possible to exempt Nonparty 1 from the imposition of the charge, in light of the organization status and duties of Nonparty 2, and the circumstances leading up to such speech and actions, etc., it is difficult to deem that the reason alone expressed a public opinion that is the subject of trust, and thereafter, it cannot be deemed that the Defendant’s imposition of the charge on the Plaintiff according to the legitimate interpretation of the development-restricted zone statutes violates the principle of trust protection.

(5) Nevertheless, the lower court determined that the instant disposition was in violation of the principle of trust protection by deeming that Nonparty 2’s above mentioned statement constitutes a public opinion statement and all the remaining applicable requirements of the principle of trust protection were met. In so doing, the lower court erred by misapprehending the legal doctrine on the principle of trust protection, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

4. Conclusion

Therefore, 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.

Justices Ahn Jae-chul (Presiding Justice)