Whether a person entitled to permission for development activities may issue a rejection disposition in consideration of the criteria for permission for development acts prescribed in the same Act in cases where a final and conclusive judgment on partition of co-owned property is filed when filing an application for permission for land division subject to permission for development

Article 56(1)4 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 51 subparag. 5(a) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 23718, Apr. 10, 2012); Article 79 of the Act on Land Survey, Waterway Survey and Cadastral Records; Article 65(2) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 83(1) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Act No. 3899, Oct. 10, 2011)

See Attached List of Plaintiffs (Law Firm Rate, Attorneys Ansan-type, Counsel for the plaintiff-appellant)

Original City Mayor (Law Firm Won, Attorneys Kim Ho-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu503 decided November 28, 2012

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

(1) According to Article 56(1)4 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”) and Article 51 subparag. 5(a) of the Enforcement Decree thereof (amended by Presidential Decree No. 23718, Apr. 10, 201); the division of land conducted without obtaining permission, authorization, etc. under the relevant statutes within a green area, control area, agricultural and forest area, and natural environment conservation area should be subject to permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, or head of a Si/Gun (hereinafter “person entitled to permission for development acts”).

The purpose of the National Land Planning Act to regulate land division as development activities is to prevent national land from being developed indiscreetly and to achieve the purpose of promoting public welfare by managing land use in a rational and efficient manner. As such, the person entitled to permission for development activities may decide on whether to grant permission at a discretionary discretion, taking into account whether there is a concern over impeding the rational use of the relevant land and the promotion of public welfare

(2) Meanwhile, pursuant to Article 79 of the Act on Land Survey, Waterway Survey and Cadastral Records (hereinafter “Cadastral”) and Article 65(2) of the Enforcement Decree thereof (amended by Presidential Decree No. 24443, Mar. 23, 2013) and Article 83(1) of the Enforcement Rule (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 389, Oct. 10, 201), in order for a landowner to divide land, a written application stating the grounds for subdivision shall be submitted to the competent cadastral authority. A copy of a written permission shall be attached in cases of land subject to permission for subdivision, and a copy or copy of a final judgment in cases of dividing land according to a final judgment of the court.

As can be seen, the legislative purpose of efficient management of the national land and protection of ownership of the people is to seek harmony by examining whether the requirements for regulation of public law, such as permission for development activities, and requirements for change in rights under the private law, such as final and conclusive judgments, are met. Thus, in order to apply for partition of land subject to permission for development activities under the National Land Planning Act, a copy of the permission must be submitted, and it does not change on the ground that there exists a final and conclusive judgment on

(3) In light of the above purport and purpose of the permission system for division of land under the National Land Planning Act, scope of discretion of the permission authority for development activities, and purport of the provisions of the intellectual property law, the permission authority for development activities may render a rejection disposition taking into account the development acts permission criteria, etc. under the National Land Planning Act even if the applicant filed an application for permission for division of land and submits a final judgment of partition

(4) According to the reasoning of the lower judgment, the lower court determined the legality of the instant disposition that the Defendant refused to file an application for land division under the National Land Planning Act regarding the instant land that belongs to an agricultural and forest area under the National Land Planning Act, and did not consider the circumstances in which the Plaintiffs received the judgment of partition of co-owned property as to the instant land and did not consider the final judgment. In so doing,

In light of the above legal principles, the judgment of the court below is just, and there were no errors by misapprehending the validity of final judgment as to partition of co-owned property, and the legal principles as to partition under the Land Planning and Utilization Act.

The Supreme Court's decision cited in the ground of appeal by the plaintiff differs from this case, and it is not appropriate to invoke this case.

2. Regarding ground of appeal No. 2

The lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the evidence adopted. ① In light of the developments leading up to the acquisition of the instant land and the method and form of land division, etc., the application for the instant development permit appears to have been scheduled to form and quality alteration of land in the future, construction of buildings accompanying deforestation, etc. ② An agricultural and forest area is an area necessary for promoting the agricultural and forest industry and preserving forests, such as an agricultural promotion area under the Farmland Act or a preserved mountainous district under the Mountainous Districts Management Act (Article 6 subparag. 3 of the National Land Planning Act), and a forest area is a place designated as a mountainous district necessary for promoting forestry production functions (Article 4(1) subparag. 1 (a) of the Mountainous Districts Management Act), such as the creation of forest resources and the establishment of the foundation for forestry management, etc., the lower court determined that the instant land is strictly restricted to prevent the use of land other than the acts listed in each subparagraph of Article 12(1) of the Mountainous Districts Management Act, and that there is no possibility that the victims of the instant land can be divided or development of land.

Such determination by the court below is just on the basis of the legal principles as to discretionary action of permission for development activities under the National Land Planning Act, and there is no error of misapprehending the legal principles as to deviation from and abuse of discretion of the disposition of refusal

3. 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 In-bok (Presiding Justice)