[1] Whether Article 2 subparag. 6 (d) of the former National Land Planning and Utilization Act, which was inconsistent with the Constitution, continues to apply the part of “sports facilities” to which the Constitutional Court continuously ordered the continuation of application (affirmative)

[2] The case affirming the judgment below holding that a public golf course constitutes a sports facility installed as an infrastructure under the National Land Planning and Utilization Act, in case where the competent Mayor approved the implementation plan for an urban planning facility project to install a public golf course with Gap corporation as a project implementer Gap corporation and approved the alteration of the implementation plan to a public golf course

[1] Article 2 subparagraph 6 (d) of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 2 subparagraph 6 (d) of the former National Land Planning and Utilization Act / [2] Articles 2 subparagraph 6 (d), 30, and 88 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 2 (1) 4 and (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 2443, Mar. 23, 2013); Article 99 of the former Rules on the Determination, Structure, and Standards for Installation of Urban Planning Facilities (Amended by Act No. 394, Nov. 1, 201); Article 99 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act (see Article 9 of the current Rules on the Determination and Utilization of Urban and Gun Planning Facilities); Article 93 [Attachment]

[1] Supreme Court Decision 2011Du16124 Decided November 15, 2012

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Lee Jong-seok et al., Counsel for the plaintiff-appellant)

Leecheon-si (Law FirmMail, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Bail Co., Ltd.

Seoul High Court Decision 2011Nu43562 decided September 13, 2012

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to Articles 2 subparag. 4, 7, 10, 30, 43, and 95 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”), an implementer of a project to install, maintain, or improve urban planning facilities determined by the urban management plan among infrastructure may expropriate or use goods or rights necessary for such project. Article 2 subparag. 6 (d) of the National Land Planning and Utilization Act provides that “public cultural and sports facilities, such as schools, playgrounds, public office buildings, cultural facilities, sports facilities, etc.,” as one of the infrastructure that can be determined as urban planning facilities, the Constitutional Court declared that Article 2 subparag. 6 (d) of the National Land Planning and Utilization Act shall continue to apply to the above case by 201Hun-Ba16, 2011, and 201Hun-Ba135 (Consolidated) (hereinafter referred to as the “National Land Planning and Utilization Act”).

According to the reasoning of the judgment below, as long as the Constitutional Court ordered the provisional application of the definition clause of this case and did not separately determine the scope of its application, the definition clause of this case shall be applied equally until the above legislative deadline, and even if the definition clause of this case loses its validity by the above decision of inconsistency with the Constitution, it shall be the determination of the urban planning facility project of this case, which is the preceding disposition, and as long as the above prior disposition is not null and void, it shall not be deemed that it affected the approval of modification of the implementation plan of the urban planning facility project of this case, which

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error by misapprehending the legal principles as to the validity of the Constitutional Court decision of inconsistency.

Supreme Court Decision 2008Du18885 Decided September 29, 2011 cited in the ground of appeal is inconsistent with this case and it is inappropriate to invoke the case.

2. Regarding ground of appeal No. 2

Article 2(1)4 of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 24443, Mar. 23, 2013) provides for “facilities prescribed by Presidential Decree as sports facilities” as one of the infrastructure facilities that can be determined as urban planning facilities. Accordingly, Article 99 of the former Rules on the Determination, Structure and Standards for Installation of Urban Planning Facilities (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Nov. 1, 201); Article 3 of the Installation and Utilization of Sports Facilities Act; and Article 2 [Attachment 1] of the Enforcement Decree of the same Act provides for a golf course as one of sports facilities.

According to the reasoning of the judgment below, the court below held that it is difficult to view the instant golf course as an infrastructure under the National Land Planning and Utilization Act, on the ground that the requirements for “to be installed to provide for the use of the general public” under Article 99 of the former Rules on the Determination, Structure, and Installation Standards of Urban Planning Facilities (hereinafter “Rules on the Determination, Structure, and Installation Standards of Urban Planning Facilities”) mean that many and unspecified persons have a high possibility of use in society. In the case of public golf courses, such as the instant golf course, it is a facility provided for the free use of the general public as a matter of principle because it has a high possibility of use to many and unspecified persons; ② current golf is accepted as a general category of sports activities in light of the level and trends of the golf course, and accordingly, it seems that the cost required for the use of the facilities is excessive to the extent that it is practically impossible for the majority of people to use the facilities in light of the current socioeconomic level.

In light of the records, the above judgment of the court below is just, and there is no error of misapprehending the legal principles as to urban planning facilities under the National Land Planning and

3. As to the remaining grounds of appeal

In light of the relevant legal principles and records, the lower court is justifiable to have determined that the authorization of the modification of the implementation plan of the instant urban planning facility project is not illegal on the grounds as stated in its reasoning, and there is no error of misapprehending the legal principles on deviation and abuse of discretion, the effect of the determination of urban planning facilities, Article 19(1) of the Environmental Impact Assessment Act, and

4. Conclusion

Therefore, the appeal is 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.

Justices Lee In-bok (Presiding Justice)