[1] Where a statute delegates a specific matter to a municipal ordinance, the standard for determining whether the municipal ordinance complies with the limits of delegation

[2] Whether Article 4 (1) 2 of the former Act on the Maintenance and Improvement of Urban Areas and Residential Environments (amended by Presidential Decree No. 1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Residential Environments (negative)

[1] Where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation shall be made by comprehensively examining the legislative purpose and contents of the pertinent statutory provision, the structure of the provision, and the relationship with other provisions. The delegation provision itself clearly states the limits of delegation by using terms with which the meaning can be accurately known, but the delegation provision itself exceeds the limits of its literal meaning, but whether it was a new legislation beyond the bounds of its literal meaning by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision.

[2] Article 10 (1) [Attachment Table 1] 2 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 20947 of July 29, 2008) provides for the requirements for designation of a zone subject to the maintenance plan for a housing redevelopment project, and uses abstract concepts such as "loss of utility as a site", "excess density of buildings", and "defluence of infrastructure maintenance and substantial shortage, etc.", it is necessary to establish detailed criteria for determination in order to examine the requirements. Accordingly, it is difficult to determine the scope of the requirements for designation of an area subject to the improvement plan under Article 4 (1) 2 of the Enforcement Decree of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 20947 of Sep. 29, 2008). Thus, it is difficult to determine the scope of the requirements for designation of an area subject to the improvement plan under subparagraph 4 of attached Table 2.

[1] Article 22 of the Local Autonomy Act / [2] Article 10 (1) [Attachment 1] 2, 5 (Article 10 (1) [Attachment 1] 6 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 20947 of July 29, 2008), Article 4 (1) 2 of the former Seoul Special Metropolitan City Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 4686 of September 30, 2008)

[1] Supreme Court Decision 2009Du17797 decided Apr. 29, 2010 (Gong2010Sang, 1035)

As shown in the attached list of plaintiffs (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Government Law Firm Corporation, Attorneys literature-Bed et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu186 decided October 21, 2010

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If it is not clear whether a provision of the enforcement decree conflicts with the mother law, if it is possible to interpret that a provision conforms to the mother law by comprehensively assessing the other provisions of the parent law, the legislative intent or history thereof, etc., the declaration that the provision is null and void as a violation of the mother law shall be careful (see Supreme Court en banc Decision 97Nu9864 delivered on December 16, 199, etc.).

Article 4(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401, Jan. 30, 2009; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “The head of a Si/Gun shall establish an improvement plan for an area meeting the requirements prescribed by the Presidential Decree, such as concentration of old and inferior buildings within the scope consistent with the basic plan and apply for the designation of an improvement zone to the Mayor/Do Governor.” The delegation of the plan stipulates that Article 10(1) [Attachment 1] subparagraph 2(b) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 20947, Jul. 29, 2008) of the former Enforcement Decree on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9401, Jan. 30, 209; hereinafter “former Act”).

However, the purpose of the improvement project under the former Act is to improve urban environments and enhance the quality of residential life by planned rearrangement of areas where urban functions are required to be restored or poor residential environment is inferior (Article 1 of the former Act). The establishment of the improvement plan and the designation of the improvement zone is an administrative plan that determines whether to implement the improvement project and its contents. The establishment of the improvement zone and the designation of the improvement zone are an administrative plan that determines whether to implement the improvement project and its contents. Based on the high level of professional and technical judgment, setting the standards for activities to realize specified order at a certain point in the future by integrating and coordinating the administrative means related to one another to achieve the specific administrative goals of the improvement and improvement of urban and residential environments, so the competent administrative agency has a relatively wide range of freedom to establish the improvement plan and the designation of the improvement zone, so it is not possible to immediately establish the improvement zone and the designation of the improvement zone, and it is difficult to consider the specific need to establish the improvement zone and the designation of the improvement zone in consideration of various circumstances such as residential environment and housing demand in the relevant area.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the limitation of delegation as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. In a case where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation should also be made by comprehensively examining the legislative purpose and content of the relevant statutory provision, structure of the provision, and relationship with other provisions. In addition, whether the delegation provision itself clearly specifies the limits of delegation by using terms with which the meaning can be accurately known, or whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see Supreme Court Decision 2009Du17797, Apr. 29, 2010, etc.).

B. Article 4 (1) 2 of the former Ordinance on the Maintenance and Improvement of Urban Areas and Residential Environments (amended by Ordinance No. 4686 of September 30, 2008; hereinafter “instant Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “The requirements for an area subject to the rearrangement plan, such as the number of unauthorized buildings, the number of old and inferior buildings, housing density, land shape, income level of residents, may be separately determined by City/Do Ordinance within the scope prescribed in subparagraphs 1 through 4, if necessary.” Article 4 (1) 2 of the former Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Ordinance No. 4686 of September 30, 2008; hereinafter “instant Ordinance on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “The area subject to the rearrangement plan for housing redevelopment project shall be at least 60% of the total number of buildings in the site subject to construction (referring to the land less than the scale prescribed in Article 25 of the Building Ordinance), the urban or residential zone (3).

C. However, Article 4(1)2 of the Enforcement Decree [Attachment 1] of the Enforcement Decree provides for the requirements for designation of a zone subject to the establishment of a rearrangement plan for a housing redevelopment project, and uses abstract concepts such as "use loss as a site", "excess density of buildings", and "defluence and significant shortage of infrastructure maintenance", so it is necessary to establish specific criteria for determination in order for competent administrative agencies establishing a rearrangement plan to examine the requirements. Under the delegation of [Attachment 1] 5 of the Enforcement Decree, Article 4(1)2 of the Ordinance provides that the criteria for determination of the requirements under subparagraph 2 of [Attachment 1] of [Attachment 1] of the Enforcement Decree of the Maintenance Ordinance shall be specified in the objective figures such as the ratio of parcels, number of houses, etc.; in particular, when examining the relationship between the requirements for designation under subparagraph 2 of Article 4(1) of the Ordinance of the Maintenance and Improvement of this case and the requirements for designation under subparagraph 2 of [Attachment 1] of the Enforcement Decree, it is difficult to see that the requirements for designation of the Ordinance or the scope of the local government's.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the limitation of delegation as alleged in the grounds of appeal.

3. As to the third ground for appeal

A. Interpretation of statutes ought to be carried out in the direction of finding concrete feasibility within the extent that does not undermine legal stability. To this end, as a matter of principle, a systematic and logical interpretation method which takes into account the legislative intent and purpose of the relevant statutes, its legislative history, harmony with the entire legal order, relationship with other statutes, etc. should meet the above-mentioned request for statutory interpretation (see, e.g., Supreme Court Decisions 2006Da81035, Apr. 23, 2009; 201Du19239, Jul. 5, 2012).

B. Article 4(1)2 of the Enforcement Decree [Attachment 1] of the Enforcement Decree of the Act provides that a zone subject to the establishment of a rearrangement plan provides that "area where the land becomes unusable as a site due to the maintenance of infrastructure, or where the urban environment is likely to be significantly deteriorated because it becomes insufficient to function as a site due to the deterioration or malfunction of a building," and "area where it is difficult to promote the rational utilization and value of the land in the zone because the building cannot function as a site due to its deterioration or malfunction or excessive concentration of a building, making it difficult to promote the rational utilization and value of the land in the zone [Article 4(1)2 of the Ordinance on the Maintenance of this case] of Article 4(1)2 of the Enforcement Decree [Attachment 1] of the Enforcement Decree of the Act on the Maintenance of this case provides that a parcel of land [

According to the reasoning of the judgment of the court below, the court below rejected the plaintiffs' assertion that the above abstract requirements provided for in subparagraph 2 of Article 4 (1) of the Ordinance on the Maintenance of this case should be met, and thus, it should be deliberated and judged separately as follows: (a) or (b) of "area difficult to promote the rational utilization and value of land within the relevant area" provided for in subparagraph 2 of the Enforcement Decree [Attachment Table 1] of the Enforcement Decree, if the requirements for the small rate of land and the housing density are met; and (b) even if the requirements for the small rate of land and the housing density are met, the above abstract requirements provided for in subparagraph 2 of attached Table 1 of the Enforcement Decree shall be met.

In light of the above legal principles and the contents, form, and system of the relevant statutes, such determination by the court below is just and there is no error of law by misapprehending the legal principles as to the requirements for designation of the rearrangement zone, as otherwise

C. Article 4(1)2(a) of the instant Ordinance on the Maintenance and Improvement refers to a rearrangement zone’s designation requirements for “area falling under subparagraph 1(a), (c), or (d).” Article 4(1)1 of the said Ordinance provides that “area falling under subparagraph 1(a) or (d) shall be at least 60% of the total number of buildings in the zone where the number of buildings in which the buildings in question and in distress are located is at least 60%” [referring to (a)], “a parcel of less than a size under Article 25 of the Seoul Special Metropolitan City Building Ordinance (referring to a parcel of less than a size under Article 25 of the said Building Ordinance; hereinafter the same shall apply], “area where the number of buildings in question is at least 50%”, “area where a disaster, such as habitual flood and calamity risk zone, is likely to occur” [d]

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that Article 4 (1) 2 (a) or (c) of the Maintenance Ordinance of this case should be interpreted as "an area falling under subparagraph 1 (a) or (c) or an area falling under subparagraph 1 (c) or (d)" as "an area falling under subparagraph 1 (a) or (d)."

In light of the above legal principles and the language and text of Article 4(1)2(a) of the Act on the Maintenance and Improvement of this case, and the contents, form, and system of the relevant laws and regulations, such as mutual relationship under subparagraph 1, such determination by the court below is just, and there is no error of law by misapprehending the legal principles as to the designation requirements of the rearrangement

4. As to the fourth ground for appeal

A. Article 9(4) of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 9048, Mar. 28, 2008; hereinafter “former Urban Renewal Promotion Act”) provides that “Where it is necessary to facilitate a wide-area renewal notwithstanding the designation requirements of a rearrangement zone under Article 4(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, an area that does not meet the relevant designation requirements may be designated as an urban renewal promotion zone where a rearrangement project under the relevant Acts and subordinate statutes is implemented within the scope prescribed by Presidential Decree.” Article 12(1) of the former Enforcement Decree of the Special Act on the Promotion of Urban Renewal (amended by Presidential Decree No. 21019, Sept. 18, 2008) provides that “In the case of an urban renewal promotion zone where a housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, a renewal promotion zone may be designated within the scope of 20% of the urban renewal promotion zone adjacent to a road.

According to such delegation, Article 7 of the former Seoul Special Metropolitan City Ordinance on the Promotion of Urban Renewal (amended by Ordinance No. 4684 of September 30, 2008; hereinafter “instant Ordinance on the Promotion of Urban and Residential Environment Improvement”) of the Act on the Promotion of Urban Renewal (Article 4 of the Ordinance on the Promotion of Urban and Residential Environment Improvement (Article 1) and Article 4 of the Ordinance on the Improvement of Urban and Residential Environments (Article 4 of the Ordinance on the Improvement of Urban and Residential Environments) relaxs the requirements for designation of a rearrangement zone by “less than 20% of the ratio of the number of small, irregular, or small-type

In full view of the contents, form, system, legislative intent, etc. of the relevant statutes and ordinances, in this case where the alteration of urban renewal acceleration districts and the determination of urban renewal acceleration plans have been made, such as the designation of black 8 districts as urban renewal acceleration zones by the housing redevelopment project method, it is reasonable to interpret that the requirements are mitigated by 20% according to the instant promotion ordinances.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the determination of an ordinance

B. Article 4(1)1(c) of the instant Ordinance on the Maintenance and Improvement refers to one of the requirements for designation of a rearrangement zone, “a parcel of land which is less than the size prescribed by Article 25 of the Building Ordinance (referring to a parcel of land less than the size prescribed by Article 25 of the Seoul Special Metropolitan City Ordinance on the Construction; hereinafter the same shall apply), an area where the number of an irregular or intangible parcel of land is not less than 50%,” and Article 2 subparag. 9 of the said Ordinance provides that “The land of one parcel of land is more than the size prescribed by Article 25 of the Building Ordinance of the Seoul Special Metropolitan City, but is virtually inappropriate as a site for construction because its form is too irregular or narrow and narrow

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that Article 2 subparagraph 9 of the Maintenance Ordinance of this case was unlawful since Article 2 subparagraph 9 of the Maintenance Ordinance of this case delegated the Mayor with the authority to recognize an irregular and small-type parcel within a specified scope in light of its language and text, and even if the defendant examined the contents of recognition criteria established before the disposition of this case and notified to the relevant autonomous Gu, the recognition criteria cannot be deemed arbitrary, unreasonable, or unjust. Thus, Article 2 subparagraph 9 of the Maintenance Ordinance of this case is invalid and invalid because the criteria for recognition established pursuant to the above provision is also invalid

In light of relevant statutes and records, the judgment of the court below is just and there is no error of law by misapprehending the legal principles as to the validity of Article 2 subparagraph 9 of the Maintenance Ordinance of this case as alleged in the grounds of appeal

In addition, according to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that even if the land meeting the requirements for a small parcel under the above provisions or the requirements for an irregular or small-type parcel, it should be excluded from the calculation of a small parcel in the case where a legitimate building is constructed on the ground, on the premise that it can be included in the calculation of a small parcel rate, because the land meeting the requirements for a small parcel or the requirements for an irregular or small-type parcel under Article 4 (1) 1 (c) of the Maintenance Ordinance of this case.

The issue of whether Article 4(1)1 Item (c) and Article 2 subparag. 9 of the Ordinance on the Improvement of this case constitutes a parcel of less than one parcel is based on the size of the land. The issue of whether a parcel of less than one parcel of land constitutes an illegal type of land is determined on the basis of the form of the land. In light of the contents, form, and system of the relevant statutes, including the fact that there are no restrictions due to the use of the relevant land and the existence of a ground building, etc. on the cadastral record of the relevant land, the determination by the court below is justifiable, and there is no violation of law by failing

5. Ground of appeal No. 5

The plaintiffs' assertion in this part of the grounds of appeal is justified to determine that a part of the buildings constitutes an existing unauthorized building under Article 2 subparagraph 1 of the Maintenance Ordinance of this case solely based on the statement of the "Unauthorized Building Confirmation Board" in calculating the housing density. However, this is ultimately an error in the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the court below, which is a fact-finding

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Lee Sang-hoon (Presiding Justice)