Hansung F&C Construction Co., Ltd. (Law Firm Pacific, Attorneys Noh Young-soo et al., Counsel for the plaintiff-appellant)

Goyang market (Law Firm Dongin, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

May 4, 2011

Suwon District Court Decision 2010Guhap554 Decided July 13, 2010

1. The plaintiff and the defendant's appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The primary purport of the claim is to confirm that the Defendant’s provisional injunction against development activities on December 28, 2009 and the provisional injunction against the building permission and the housing construction project plan are invalid on February 2, 2010.

Preliminary claim: The defendant's provisional injunction on December 28, 2009 against the plaintiff, and the provisional injunction on February 2, 2010 against the building permission and the housing construction project plan are revoked.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. In the first instance, the defendant confirms the invalidity of the provisional disposition not to permit development activities on December 28, 2009 against the plaintiff. In the first instance, the above disposition shall be revoked.

Defendant: The part against the Defendant in the judgment of the first instance is revoked. The Plaintiff’s claim corresponding to the above revocation is dismissed.

1. Basic facts

The reasons for this part are as follows: “application for permission for development acts” in the second below the second half of the judgment of the court of first instance shall be deemed to be “application for deliberation on a construction plan (construction permission)”; and, in addition to the entry into the second below the third below as “ around December 18, 2009 and December 21, 2009”, the corresponding part of the judgment of the court of first instance shall be deemed to be the same as the corresponding part of the judgment of the court of first instance. In accordance with Article 8(2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, the corresponding part shall be cited.

2. Determination on the defense prior to the merits

The reasons stated in this part are the same as the part concerning the "decision on the defense prior to the merits of the case" of the first instance judgment. Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall be cited.

3. Judgment on the merits

A. Determination as to whether the reply on December 28, 2009 was legitimate

1) Plaintiff’s assertion

A) violates the binding force of the final and conclusive judgment

(1) The reply on December 28, 2009 is in violation of the binding force of a final and conclusive revocation judgment, which is a disposition of rejection that contains the same grounds as the primary rejection disposition of this case. Thus, the reply is null and void or illegal.

② Although there were no new grounds after the first rejection disposition of this case, the Defendant had abused the status of the authority to grant permission during the proceeding of revocation of the first rejection disposition of this case and subsequently designated an area subject to the restriction of development permission to supplement the grounds for revocation of the first rejection disposition by abusing the status of the authority to grant permission during the proceeding of revocation of the first rejection disposition of this case. In addition, the designation of the area subject to the restriction of development permission did not have any transitional provision, unlike ordinary cases where the transitional provision was placed, even

③ The main reason for the first refusal disposition of the instant case is that the application for the approval of the housing construction project plan is refused on the instant land because the media ballast development project is scheduled, and the main reason for the reply on December 28, 2009 is that the instant land is designated as an area subject to the permission of development activities for the purpose of the Media Ballast Development Project. All of the two dispositions are identical in factual relations with the purport that no development activities may be permitted before a specific project plan for the media ballast development project is established on the instant land. The reply on December 28, 2009 is based on the same ground for the first refusal disposition of the instant land and the basic factual basis is in violation of the binding force of the revocation judgment.

B) Designation of the restricted area for development activities is illegal

According to Article 63 (1) 3 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), where a basic urban planning or an urban management plan is formulated and such basic urban planning or urban management plan is anticipated to be altered if such plan or urban management plan is determined, and where the criteria for permission for development activities are expected to be significantly changed accordingly, it may be designated as a restricted area for development activities, if deemed especially necessary under an urban management plan.

However, even based on the Defendant’s established basic urban planning in 2020, since the land of this case is planned to build the Media Ballast and attract residential facilities, etc., it is not anticipated that the criteria for permission for the Plaintiff’s residential facilities, etc. to construct, even if an urban management plan is established in the future, will be strengthened. In addition, there was no situation where the designation of the restricted area for permission for development activities is recognized as especially necessary under the urban management plan, after the first rejection disposition of this case, until the designation

The Defendant’s designation of the instant land, etc. as a restricted area for development permission is merely for securing the land necessary for the construction of the media ballast in the future, and the designation and public announcement of the restricted area for development permission under Article 63(1)3 of the National Land Planning and Utilization Act is unlawful, and the response on December 28, 2009, which was made based on illegal public notification, is also illegal

C) The motive of the disposition is illegal

The reason why the Defendant refused to file an application for approval of a project plan is that it plans to raise enormous proceeds from sale by carrying out large-scale development projects, such as construction of apartment buildings, etc., on the land of this case. This is because, in the event that the Plaintiff approves the instant project plan planned by the Plaintiff, there was a concern that sales revenue would have been reduced or the compensation for expropriation would have increased. The response made on December 28, 2009

D) in violation of the principle of no-competing or reliance protection.

The Defendant expressed his intent to approve the housing construction project plan when waiting for the Plaintiff several times. The Plaintiff believed this and prepared an urban management plan proposal to apply for the approval of the housing construction project. There is no negligence in the Plaintiff’s trust in the expression of the Defendant’s position, and even if the Plaintiff’s application is accepted, the public interest or the third party’s interest is not significantly undermined. The reply made on December 28, 2009 is unlawful in violation of the principle of the protection of speech or trust.

2) Relevant statutes

It is as shown in the attached Form.

3) Determination

A) Determination as to the assertion that it violates the binding force of a final and conclusive judgment

① According to Article 30(2) of the Administrative Litigation Act, when a ruling revoking a rejection disposition issued by an administrative agency becomes final and conclusive, the administrative agency that issued the ruling is obligated to re-disposition the application for relocation in accordance with the purport of the ruling. Since an administrative disposition is determined based on the statutes and facts that existed at the time when the administrative disposition was lawful, the administrative agency that was the party that received the final and conclusive ruling may again render a rejection disposition on the ground of new reasons that occurred after the previous disposition, and such disposition also constitutes re-disposition provided for in the above provision (see Supreme Court Decision 2003Du14161, Mar

On December 28, 2009, the reply made on December 26, 2007, after the first rejection disposition was taken, the Plaintiff’s application for permission was rejected on the ground that the area was designated as a restricted area for development activities under Article 63 of the National Land Planning and Utilization Act on December 26, 2007. The reply made on December 28, 2009 constitutes a second rejection under Article 30(2) of the Administrative Litigation Act that does not conflict with the binding force of the revocation judgment against the first rejection disposition.

② In light of the overall purport of the arguments in the evidence Nos. 8-1, 2, and 9, the Gyeonggi-do Governor prepared and announced on July 4, 2007 by the Governor of the Gyeonggi-do and the "Seoul Metropolitan Urban Planning, 2020" publicly announced on September 20, 2006 with the approval of the Governor of the Gyeonggi-do, which was approved on September 20, 2020, pursuant to the "Seoul Metropolitan City Urban Planning, 2020" and the "Seoul Metropolitan City Urban Planning, 204,00,000, including the land in this case, it can be recognized that the Seoyang-gu, including the land in this case, was designated as a prospective site for urbanization in order to create the media ballast. The designation and public announcement of the areas subject to the permission of the development in this case is based on the basic urban planning established prior to the filing of the revocation lawsuit against the first refusal disposition, and it is difficult to view that the designation and public announcement was made based on the basic urban planning approved by the superior administrative agency (including the metropolitan urban planning

In addition, there is a transitional provision on the designation of a restricted area for development activities and the designation of a restricted area for development activities, and there is a reason that the notification did not exclude the application prior to the notification of the plaintiff's application.

③ While the grounds for the first refusal disposition of this case are designated as a site to be commercialized under the Basic Urban Planning Act of Goyang-si, it is impossible to grant permission since the overall development plan was not formulated. On the contrary, the grounds for the first refusal disposition of this case, which was based on the reply on December 28, 2009, are that the daily price for the land of this case after the first refusal disposition of this case, is not designated as a restricted area for development permission pursuant to Article 63 of the National Land Planning and Utilization Act. The former and the latter are not identical with the specific facts that form the basis for the contents of the second refusal disposition, and thus, the Plaintiff’s assertion is without merit.

B) Determination on the assertion that designation of a restricted area for development activities is illegal

The Defendant is anticipated to modify the specific use area, specific use district, or specific use zone surrounding the instant land if an urban management plan is determined in accordance with the previous 2020 master plan, and accordingly, the criteria for permission for development activities are expected to vary significantly. Accordingly, the Defendant designated the area subject to permission for development activities in order to prevent undeveloped costs of the instant land. The Defendant’s designation and public announcement of the area subject to permission for development activities in accordance with Article 63(1)3 of the National Land Planning Act that meets the requirements prescribed in Article 63(1)3 of the National Land Planning Act, and thus, the Plaintiff’s assertion premised on the illegality of the designation of the area subject to permission for development activities is without merit (it is not immediately illegal even if the designation of the area subject to permission for development activities is illegal even if the designation of the area subject to permission for development activities is illegal.)

C) Determination on the assertion that the motive is illegal

The Defendant prepared a draft, public hearing, etc. for several years and approved by the Governor of the Gyeonggi-do around September 2006, the instant land was already included in the “2020 Height Basic Urban Planning Act” as a site for the Media Ballast Business, and accordingly, designated as an area subject to permission of development activities. There was no illegality in the purpose and motive of disposition.

D) Determination as to the assertion that such an assertion is contrary to the gold speech or the principle of trust protection

There is no evidence to prove that the Defendant had the Plaintiff trusted that the approval of the housing construction project plan will be obtained immediately, such as that the Defendant would be expected to obtain the approval of the housing construction project plan when waiting for the Plaintiff. In full view of the overall purport of the pleadings in the evidence No. 18, the Defendant may acknowledge the fact that the Defendant expressed the intent that “if possible in law, the Defendant would obtain the approval of the housing construction project plan.” However, this is limited to the original theoretical answer that the Plaintiff would obtain the approval of the housing construction project plan and that the Plaintiff would not obtain the approval of the housing construction project plan without any problem after examining the application in accordance with the relevant laws and regulations.

B. Determination as to whether a disposition is legitimate on February 2, 2010

In the case of an administrative action under the so-called "disposition for the benefit of authorization, permission, license, etc. or the rejection of such application upon an application filed by a party, if a rejection disposition is taken once against an application, the rejection disposition, in addition to a legitimate procedure, shall be null and void as a rejection disposition against an application for which no ground exists, unless the rejection disposition is revoked by a legitimate procedure (see Supreme Court Decision 98Du1895 delivered on December 28, 199).

With respect to an application filed by the Plaintiff for a building permit and an application for approval for a housing construction project plan, the Defendant rejected each of the above applications in the form of a civil petition meeting on December 28, 2009. On December 28, 2009, the Defendant’s refusal disposition on February 2, 2010, which was not revoked by legitimate procedures, is null and void as a rejection disposition against the application that did not exist. The Plaintiff’s primary claim for this part is with merit.

3. Conclusion

All of the plaintiffs and defendant appeals are dismissed.

[Attachment]

Judges Kim Jong-dae (Presiding Judge)