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(영문) 광주지방법원 2018.07.05 2017구합10630

원상복구시정명령처분 취소

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Details of the disposition;

A. In around 2014, the Plaintiff created a cemetery on the ground of 142,708 square meters of land owned by Gwangju Mine-gu, Gwangju (hereinafter “instant land”) and transferred a grave to his parents and grandparents, and installed a spouse’s grave.

B. On March 30, 2016, the Defendant issued a notification of a corrective order for the restoration of 200 square meters out of the instant land (hereinafter “instant disposition”) pursuant to Article 30 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”) on the ground that the Plaintiff destroyed forests without permission and created a cemetery, thereby changing its unlawful form and quality in a development restriction zone.

C. The Plaintiff filed an appeal with the Gwangju Metropolitan City Administrative Appeals Commission on June 28, 2016, but the said appeal was dismissed on December 28, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 4 and 11, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The Plaintiff’s assertion that the land of this case was already set up two cemeteries in the past. Around 2005, the Plaintiff installed two graveyards in the same place, but around 2014, established three cemeteries adjacent to the above cemetery.

The Plaintiff’s act constitutes a minor act that created a cemetery within the cemetery of an existing cemetery and that can be done without obtaining permission or filing a report pursuant to Article 12(4) of the Development Restriction Zone Act and Article 12 and attached Table 4 of the Enforcement Rule of the same Act.

Therefore, the disposition of this case, which issued a corrective order to restore the entire cemetery to its original state by deeming that the Plaintiff’s transfer of cemetery constitutes an unlawful alteration of form and quality within a development-restricted zone, is unlawful as it deviates

(b) Attached Form 1 of the relevant Acts and subordinate statutes;

C. As a matter of principle, Article 12 of the Development Restriction Zone Act provides that a building in a development restriction zone shall be constructed.