[건축불허가처분취소][공1994.6.15.(970),1719]
Whether the construction of buildings for other purposes than the market is restricted on the land determined as the site of the market which is an urban planning facility under the Urban Planning Act.
According to the provisions of Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17(1) of the Regulations on the Standards, etc. for Permission for Change, etc. of Land Quality and Quality of Land, the head of Si/Gun may not permit the construction of buildings which are not urban planning facilities concerned, on the land determined as the place of urban planning facilities under the Urban Planning Act. Meanwhile, according to the provisions of Article 2(1)3 and 1(b) of the Urban Planning Act, the Mayor is listed as one of urban planning facilities. Thus, with respect to the land designated as a market site as a public site by the implementation of an urban planning project, the construction of buildings for
Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17(1) of the Regulations on Criteria, etc. for Permission for Changing Land Form and Quality
Supreme Court Decision 92Nu18924 delivered on September 28, 1993
[Judgment of the court below]
Attorney Seo-gu et al., Counsel for the defendant-appellant in Daejeon Special Metropolitan City
Daejeon High Court Decision 93Gu775 delivered on December 23, 1993
The judgment of the court below is reversed and the case is remanded to Daejeon High Court.
We examine the grounds of appeal.
According to Article 4(1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act, and Article 17(1) of the Regulations on the Standards, etc. for Permission for Change, etc. of Land Quality and Quality of Land, the head of Si/Gun may not permit the construction of buildings other than the urban planning facilities in the land determined as the place of urban planning facilities under the Urban Planning Act. Meanwhile, according to Article 2(1)3 and 1(b) of the Urban Planning Act, the market is listed as one of the urban planning facilities. Thus, with respect to the land designated and provided as a market site as a public site by the implementation of an urban planning project, the construction of buildings to be used for purposes other than the market shall not be allowed (see Supreme Court Decision 92Nu18924 delivered on September 28, 1993). Accordingly, according to the records, since it can be known that the land in this case is the land determined as the facilities in the urban planning facility establishment district under the Urban Planning Act, which is the urban planning facilities project site.
Nevertheless, the court below held that the land in this case was illegal because it was fire-prevention district within the general commercial area under the Urban Planning Act and was within the area where the construction of the neighborhood living facilities in this case is possible under the above Act, and even if the Daejeon Metropolitan City and Daejeon Metropolitan City decided it as the establishment district of an agricultural and fishery products wholesale market, the above decision itself alone does not have any legal grounds to regard it as the construction in the above area. Thus, the court below erred by misapprehending the legal principles, such as the Urban Planning Act, which affected the conclusion of the judgment. The grounds for appeal are
Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)