[건축허가신청반려처분취소][공2004.2.1.(195),244]
The purpose of Article 33(1) of the Building Act stipulating the obligation to contact the site of the building and the standard of determining whether the building falls under "cases deemed not to impede access to the building" under subparagraph 1 of the proviso of the same paragraph.
The purpose of Article 33(1) of the Building Act stipulating the duty of linking the building site is to not allow the users of a building to construct the building site in land not abutting on roads by specifically regulating the relationship between the building site and the road in order to maintain and preserve safe conditions for traffic, evacuation, fire, and sanitation. Thus, whether the building site constitutes "where it is deemed that there is no hindrance to access to the building" under the proviso of Article 33(1)1 of the same Act shall be determined on an individual basis in light of the aforementioned purport, such as the type and size of the building subject to the building permit, the type of the building site, and the type of the facilities in which the building site adjoins.
Article 33(1) of the Building Act
Supreme Court Decision 98Du18299 delivered on June 25, 1999 (Gong1999Ha, 1527) Supreme Court Decision 2002Du6200 Delivered on October 11, 2002
Plaintiff 1 and seven others (Law Firm Sejong, Attorneys Lee Ho-ju et al., Counsel for the plaintiff-appellant)
Head of Gwangjin-gu Seoul Metropolitan Government
Seoul High Court Decision 2002Nu12399 delivered on May 27, 2003
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. According to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance cited by the court below, the plaintiffs filed an application for a construction permit for the construction of 1,739m2 on the ground of 1,739m2 (hereinafter referred to as "1m2") which was owned by them on April 24, 2002, for a lot of 19 m2 (1,99m2) a tenement house on the ground of the Seoul Special Metropolitan City Gwangjin-gu ( Address 1 omitted), which was owned by them, but the defendant did not pass a lot of 1,151m2 (hereinafter referred to as "2m2") which is surrounded by the neighboring Samsung apartment complex, and did not pass through the ( Address 2 omitted) and did not pass through the public land (hereinafter referred to as "land") but did not comply with the principle of trust and good faith for the plaintiffs to acquire ownership on the ground that the second land does not fall under the "land of this case's 29m2.
2. The purport of Article 33(1) of the Building Act stipulating the duty of contact with the building site is that a user of a building does not allow the act of constructing a building on the land not abutting on the road by specifically regulating the relationship between the building site and the road in order to maintain and preserve safe state of traffic, evacuation, fire, and sanitation. Thus, whether the building falls under the "where it is deemed that there is no hindrance to access to the building" under the proviso of Article 33(1) of the same Act shall be determined individually in light of the above purport, such as the type and size of the building subject to the building permit, the type of the facility in which the building site adjoins, and other specific circumstances such as the type and size of the building (see Supreme Court Decision 98Du18299, Jun. 25, 199, etc.).
According to the facts and records acknowledged by the court below, although the land 1 does not adjoin a road as prescribed by the Building Act, it can enter the road 15 meters wide ( Address 3 omitted) after passing through the land 2 which is the neighboring state-owned land. The land 2 has been used since the time when Samsung apartment was completed in around 1989 for passage between Samsung apartment 1 and Nadong and access to the land 1. The plaintiffs' apartment house 19 households and the land 2 is about 4 meters wide, and the land 2 is likely to pass the above apartment house and the land 4 meters wide. If the passage through the land 2 land is cut off, the land 1 is inevitable to go through the road 15 meters wide. It is due to the Minister of Construction and Transportation's approval of the construction project plan for the neighboring Samsung apartment 1, the project implementer, at the time of the above approval, provided the above land 100 project implementer with access to the land 200,0000,0000).
Unlike this, the court below's decision that the above building permit application does not constitute "a case where the building permit application is deemed not to obstruct access to the building in question" is erroneous, but the conclusion that the disposition in this case is unlawful is just and there is no violation of law
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-chul (Presiding Justice)