CONTENTS
- 1. How the Client Came to the Busan Administrative Litigation Attorney
- 2. The Law Examined by the Busan Administrative Litigation Attorney
- - The Law Examined by the Busan Administrative Litigation Attorney : Act on Planning and Use of National Territory
- 3. The Busan Administrative Litigation Attorney's Pleading
- - Busan Administrative Litigation Attorney's Argument (1)
- - Busan Administrative Litigation Attorney's Argument (2)
- 4. Busan Administrative Litigation Attorney's Judgment
1. How the Client Came to the Busan Administrative Litigation Attorney
As the reason for coming to the Busan administrative litigation attorney, the client stated the following.
To establish a sports park, the client obtained designation of the project implementation site, approval of the implementation plan, and a building permit, and proceeded with the project in this case.
However, due to continuous interference by the construction company, the progress of the construction was delayed and the client experienced difficulty in securing capital investment.
Ultimately, a public auction of the project site was carried out, and the Busan administrative litigation attorney's client entered into a contract to purchase the site.
Based on the above facts, the Busan administrative litigation attorney's client applied to the mayor with jurisdiction over the client's project site for approval of a modification of the implementation plan for the project in this case, and obtained designation as the project operator and approval of the modification of the implementation plan for the project in this case, on the conditions of complying with the existing approval conditions and extending the term of the guarantee insurance policy.
However, the mayor suddenly issued the client a notice that extension of the approval was not possible and that the implementation plan approval was subject to revocation under Article 133 of the Act on Planning and Use of National Territory, on grounds such as the failure to submit a modification of the guarantee insurance policy and the failure to fulfill the approval conditions.
With respect to the project in this case, the mayor carried out, against the Busan administrative litigation attorney's client, a disposition revoking the designation as project operator and the implementation plan approval, on the grounds of the failure to complete the project during the project period set in the implementation plan and the failure to deposit the performance guarantee, pursuant to Article 133 of the Act on Planning and Use of National Territory, and gave public notice of this.
2. The Law Examined by the Busan Administrative Litigation Attorney
The Busan administrative litigation attorney examined the law applicable to this case.
The Law Examined by the Busan Administrative Litigation Attorney : Act on Planning and Use of National Territory
Article 133 (Dispositions Against Violators of Statutes, etc.)
(1) The Minister of Land, Infrastructure and Transport, a Mayor/Do Governor, the head of a Si/Gun, or the head of a Gu may, against any person who falls under any of the following items, revoke a permit, approval, etc. under this Act, suspend construction, order the reconstruction or relocation of a structure, etc., or take other necessary dispositions or order other necessary measures.
1. A person who has carried out a project or construction without filing the report under the proviso to Article 31 (2) 2. A person who has installed an urban or Gun planning facility without the decision of an urban or Gun management plan under Article 43 (1) 3. A person who occupies or uses a common utility tunnel without obtaining permission for the occupation or use of the common utility tunnel under Article 44-3 (2), or who has failed to pay the occupation fee or use fee under the same Article (3) 4. A person who, in a district unit planning zone under Article 54, has constructed a building or changed its use, or installed a structure, in a manner inconsistent with the relevant district unit plan 5. A person who has carried out a development activity without obtaining a development activity permit or a modification permit under Article 56 5-2. A person who, having obtained a development activity permit or a modification permit under Article 56, has failed to complete the development activity during the permitted project period 5-3. A person who, having obtained a development activity permit under Article 57 (4), has failed to fulfill the conditions of the development activity permit 6. A person who has failed to deposit the performance guarantee under Article 60 (1), or who has failed to comply with the order to restore the land to its original condition under the same Article (3) |
3. The Busan Administrative Litigation Attorney's Pleading
The Busan administrative litigation attorney pleaded as follows for the client.
Busan Administrative Litigation Attorney's Argument (1)
In a precedent similar to the Busan administrative litigation attorney's client matter, Article 133(1), Item 15-3 of the National Land Planning and Utilization Act provides that a district mayor or a similar authority may order a person who has installed an urban planning facility or changed its use in a manner inconsistent with the approved or modified content of an implementation plan for an urban management planning project to reconstruct or relocate the structure, or may take other necessary dispositions or measures. On that basis, the court held that the disposition in this case is a discretionary act (Busan District Court, November 8, 2018).
Considering the language of the statute underlying the respondent's revocation disposition in the Busan administrative litigation attorney's case, together with the fact that the precedent above held the same provision of the same Act and paragraph to be a discretionary act, the revocation disposition in this case can be regarded as a discretionary act.
Busan Administrative Litigation Attorney's Argument (2)
The Busan administrative litigation attorney noted the following points. The respondent was fully aware that the construction had been delayed for reasons not attributable to the client. The client had shared the progress of every process and task related to the project in this case with the respondent. The client had already invested funds amounting to 70 percent of the construction cost for the project, so that revoking the designation of the business operator and the modified approval of the implementation plan would cause substantial damage to the client.
Taking these points into account, the disposition in this case violates the principle of proportionality and is unlawful as a disposition that deviates from and abuses the limits of discretionary power.
4. Busan Administrative Litigation Attorney's Judgment
The court accepted the arguments of the Busan administrative litigation attorney and issued a judgment granting a stay of execution of the revocation of the approval of the implementation plan.
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