In the process of developing a tourist destination with funds from a private developer after receiving a proposal from the private developer, as the project owner, a city of Boryeong applied for approval of the tourist destination development plan to the governor of Chungcheongnam-do, who is the approval authority for the tourist destination development plan, and the Boryeong city government incorrectly listed the private developer as the project owner. The private developer was also listed as the project owner in the constructive approval documents such as the request for consultation on the conversion of the usage of agricultural land. As a result, the private developer was listed as the permit holder in the constructive permit consultation register for conversion of usage of agricultural land. Under these circumstances, the plaintiff proposed to Boryeong-si to change the tourist attraction plan in order to conduct a tourist accommodation business in the above tourist area, and Boryeong-si applied to the Governor of Chungcheongnam-do to change the tourist attraction plan. The governor of Chungcheongnam-do then made a supplementary request to the mayor of Boryeong-si to “ be transferred the right to use agricultural land from the private developer" on the premise that the private developer was the one who received the agricultural land use permit. However, the governor of Chungcheongnam-do rejected the agricultural land conversion agreement on the grounds that the plaintiff failed to fulfill the above requirement. Accordingly, the plaintiff filed a claim against the governor of Chungcheongnam-do to confirm the non-existence or invalidity of the constructive permit to convert agricultural land that was granted to the private developer.

 

2. Our argument and role

The Governor of Chungcheongnam-do and the private developer who joined the lawsuit in support of the Governor of Chungcheongnam-do argued that the private developer should be viewed as the person who received the constructive permit to use the agricultural land on the grounds that the private developer was listed as the applicant or project owner in the constructive permit documents for agricultural land use, and that the Minister of Agriculture, Food and Rural Affairs, who holds authority to grant agricultural land use permits, agreed to grant the constructive permit for agricultural land use with the private developer as the project owner, that the private developer was listed as the person who was granted the permit in the consultation register, and that the private developer was the one who actually carried out the act of farmland conversion."

In response, we, who represented the plaintiff, closely analyzed the Tourism Promotion Act and the documents submitted in the application for approval of the tourist attraction plan and argued that "even though the tourist attraction development project was to be carried out by private capital and the private developer was listed as the project owner in various applications, it was the mayor of Boryeong-si who developed the tourist attraction plan and applied for approval, and the private developer was only the one who proposed the application for approval and had to obtain separate permission from the mayor of Boryeong-si to carry out the project, so the project owner who received approval of the tourist attraction plan, which is the main license, was the mayor of Boryeong-si."

​Furthermore, we argued that in light of the text of the Tourism Promotion Act and the purpose of the constructive permit system, not only was the project owner under the Tourism Promotion Act, which is the main license, required to obtain a constructive permit under the Agricultural Land Act, but also that Boryeong-si, as the project owner of the tourist attraction project, had the intention to convert agricultural land, and therefore, Boryeong-si was also a “person who intends to convert the usage of agricultural land” under the Agricultural Land Act.

 

3. The court’s judgment

The Supreme Court accepted our arguments that we made on behalf of the plaintiff in both the first instance and the second instance, stating, "(i) Since the Tourism Promotion Act stipulates that ‘the mayor in charge of a tourist destination shall prepare a plan and obtain the approval of the governor,’ it is the mayor of Boryeong-si who received the approval of the tourist destination development plan, which is the main license. (ii) Since the Tourism Promotion Act stipulates that ‘when a construction plan is approved, it shall be deemed to have received an agricultural land use permit under the Agricultural Land Act,’ the mayor of Boryeong-si who received approval for the construction plan shall be deemed to have received an agricultural land use permit, and this interpretation is in line with the purpose of the constructive permit system. (iii) Even if the mayor of Boryeong-si applied for approval of the construction plan and listed a private developer as the project owner in the consultation request for conversion of usage of agricultural land or the opinion of the agricultural land conversion examination, it is the mayor of Boryeong-si who is the project owner of the tourist attraction project and who intends to convert the usage of agricultural land for the tourist attraction project, and the above description seems to be a mistake by confusing the project owner of the tourist attraction project and the person who intends to carry out the actual construction project by obtaining a separate construction project approval from the project owner. Therefore, it is the mayor of Boryeong-si who has received the constructive permit for conversion of the usage of agricultural land, and the constructive permit alleged by the private developer is a disposition that does not exist from the beginning."

​□ Attorneys in charge: Suk Ho-chul, An Sun-young