Open Decision Ledger · Constitutional, administrative & state liability
Greenbelt correction orders as discretionary action
Supreme Court, Aug. 31, 2022, 2021Du46971 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 계고처분취소
Official text on the National Law Information Center
Question
Where a person carried out development works, such as altering the topography of land, in a greenbelt area without the permission provided for in the proviso to Article 12(1) of the Special Act on the Designation and Management of Greenbelts, is an order to remedy issued by an administrative agency under Article 30(1) of the same Act against that person and the related owners and users a discretionary action?
Holding
Yes. Reading the form, structure and wording of Article 30(1) of the Special Act on the Designation and Management of Greenbelts, the Supreme Court held that a correction order issued against a person who carried out unauthorised development works in a greenbelt area is a discretionary action. Judicial review of a discretionary action is, in principle, confined to whether the agency exceeded or abused its discretion, and that question is examined for factual error and for breach of the principles of proportionality and equality.
Points at issue, verbatim
개발제한구역 내에서 개발제한구역의 지정 및 관리에 관한 특별조치법 제12조 제1항 단서에 따른 허가를 받지 않고 토지의 형질변경 등 개발행위를 한 경우, 같은 법 제30조 제1항에 따른 위반행위자 등에 대한 행정청의 시정명령이 재량행위에 해당하는지 여부(적극)
Unofficial English translation
Where a person, in a greenbelt area, carries out a development act such as a change in the form of land without obtaining permission under the proviso to Article 12 (1) of the Special Act on the Designation and Management of Greenbelt Areas, whether an administrative authority's corrective order against the violator, etc. under Article 30 (1) of the same Act constitutes an act of discretion (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
재량행위에 대한 사법심사는 행정청의 재량에 의한 공익판단의 여지를 감안하여 원칙적으로 재량권의 일탈이나 남용이 있는지 여부만을 대상으로 하고, 재량권의 일탈·남용 여부에 대한 심사는 사실오인, 비례·평등의 원칙 위반 등을 그 판단 대상으로 한다
Unofficial English translation
Judicial review of an act of discretion, taking into account the room for a judgment of public interest by the discretion of an administrative authority, is in principle directed only to whether there is any deviation from or abuse of discretion, and the review of whether there is any deviation from or abuse of discretion takes as its object of judgment such matters as misapprehension of facts and violation of the principles of proportionality and equality
Factors
- 개발제한구역 내에서 개발제한구역의 지정 및 관리에 관한 특별조치법 제12조 제1항 단서에 따른 허가를 받지 않고
- 토지의 형질변경 등 개발행위를 한 경우
- 위반행위자 등에 대한 행정청의 시정명령이 재량행위에 해당하는지 여부
Unofficial English translation
• without obtaining permission under the proviso to Article 12 (1) of the Special Act on the Designation and Management of Greenbelt Areas, in a greenbelt area
• where a development act such as a change in the form of land is carried out
• whether an administrative authority's corrective order against the violator, etc. constitutes an act of discretion
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2005. 7. 14. 선고 2004두6181 판결 등 참조
Unofficial English translation
See, inter alia, Supreme Court Decision 2004Du6181 decided July 14, 2005
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the unauthorised alteration is small and short-lived and the owner has tried to end the unlawful state, how is the balance between the public interest of the greenbelt and the private disadvantage of a correction order to be struck?
The judgment of the Seoul High Court on remand in case 2020Nu65069, once it reweighs the public interest against the plaintiff's disadvantage, will show how the abuse-of-discretion test is applied. Any amendment to Article 12 or Article 30 of the Special Act on the Designation and Management of Greenbelts also calls for this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 8 July 2021 (2020Nu65069), held that the correction order was unlawful for want of justification, because the private interest of the plaintiff infringed by the order was markedly greater than the public interest the order was meant to serve, and therefore that the order exceeded and abused the agency's discretion.
Supreme Court standard: The Supreme Court reversed. It held that the court below had misapprehended the law on deviation from and abuse of discretion under Article 30(1) and that the error affected its decision. It noted that the plaintiff altered the topography of the land around 1996, and that it was not found that he had obtained permission from the agency or applied for it at any time; he paved a road planned at 4 metres to a width of 5.5 metres over 94 metres, altered about 1,216 square metres in total, used the land privately for a long time and made no effort to end the unlawful state, so that the illegality was of considerable gravity, while the public interest in preventing disorderly urban sprawl and preserving the natural environment around the city was not lighter than the disadvantage the order caused. The Justices were unanimous.
Distinguishing conditions
- A case in which the alteration of topography was permitted by the rules then in force, such as a permitted act under the Enforcement Rules of the former Urban Planning Act, or was carried out with permission, so that no unauthorised development act occurred.
- A correction order whose deviation from discretion is made out through factual error or breach of the principles of proportionality or equality, since the review still targets those grounds.
- A case in which the scale, duration and remedial efforts surrounding the unauthorised alteration differ markedly from the pavement of about 1,216 square metres used over a long period here.
Record verification notes
Set the date of the alteration against the version of the law then in force, here the former Urban Planning Act Article 21(2) and its Enforcement Decree and Enforcement Rules, and confirm whether permission was sought at any time. Then gather the width, length and total area altered, the period of use and any effort to restore the land, since the Court weighed these in assessing gravity. Finally weigh the public interest of greenbelt designation against the private disadvantage the order causes, on the footing that the review asks only whether the agency deviated from or abused its discretion.
From the official text
Points at issue
개발제한구역 내에서 개발제한구역의 지정 및 관리에 관한 특별조치법 제12조 제1항 단서에 따른 허가를 받지 않고 토지의 형질변경 등 개발행위를 한 경우, 같은 법 제30조 제1항에 따른 위반행위자 등에 대한 행정청의 시정명령이 재량행위에 해당하는지 여부(적극)
Unofficial English translation
Where a person, in a greenbelt area, carries out a development act such as a change in the form of land without obtaining permission under the proviso to Article 12 (1) of the Special Act on the Designation and Management of Greenbelt Areas, whether an administrative authority's corrective order against the violator, etc. under Article 30 (1) of the same Act constitutes an act of discretion (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
개발제한구역의 지정 및 관리에 관한 특별조치법 제12조 제1항, 제30조 제1항, 행정소송법 제27조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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