[건축허가신청반려처분취소][공2004.8.1.(207),1245]
The case affirming the judgment below which rejected the application for construction permit on the land located in a natural green area under the former Urban Planning Act on the ground that the construction of a funeral hall cannot be seen as significantly contrary to public welfare on the ground that the construction of a funeral hall cannot be seen as significantly violating public welfare on the ground that the case affirming the judgment below which rejected the application for construction permit.
The case affirming the judgment below which rejected the application for construction permit on the land located in a natural green area under the former Urban Planning Act on the ground that the construction of a funeral hall cannot be seen as significantly contrary to public welfare on the ground that the construction of a funeral hall cannot be seen as significantly violating the public welfare on the ground that the application for construction permit was filed with respect to a new construction permit on the land located in a natural green area under
Article 8 of the former Building Act (amended by Act No. 6370 of Jan. 16, 2001); Article 3-4 [Attachment 1] of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17365 of Sep. 15, 2001); Article 46, 49, and 53 of the former Urban Planning Act ( repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act (Act No. 6655 of Feb. 4, 2002); Articles 45, 49, 50, and 51 of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 1711 of Jan. 27, 2001); Article 125-3 of the former Rules on the Standards for Urban Planning (amended by Presidential Decree No. 257 of Aug. 18, 200)
Supreme Court Decision 200Du9762 Decided July 26, 2002 (Gong2002Ha, 2066) Supreme Court Decision 2002Du21 Decided April 10, 2003, Supreme Court Decision 2002Du12861 Decided June 10, 203
Exemplary Trade Association Co., Ltd. (Attorneys Kim Sun-hee et al., Counsel for the defendant-appellant)
Daegu Metropolitan City Head of Dong-gu (Law Firm Samil General Law Office, Attorneys Kim Han-chul et al., Counsel for the defendant-appellant)
Daegu High Court Decision 2001Nu2097 delivered on March 29, 2002
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The court below acknowledged the facts as stated in its reasoning based on the evidence, and determined that the application for construction permit under Article 8 of the former Building Act (amended by Act No. 6247 of Jan. 28, 200, which was amended by Act No. 6370 of Jan. 16, 2001) cannot be rejected for reasons other than those prescribed by the Building Act and the Urban Planning Act, as long as the application for construction permit is not contrary to any restrictions under the relevant Acts and subordinate statutes such as the Building Act and the Urban Planning Act. Thus, the court below determined that the application for construction permit of this case cannot be seen as unlawful because it is difficult to view that the plaintiff's application for construction permit of this case was located in the natural green area of this case as farmland at present, and it is difficult to view that there is no possibility that the building permit of this case may be a new construction permit of neighboring land and its neighboring land for the purpose of use, such as the construction permit of this case and its surrounding land for the purpose of use, and there is no concern that the above construction permit of this case may not be any possibility or its surrounding land.
Examining the relevant evidence in light of the records, we affirm the fact-finding and judgment of the court below as just, and on the other hand, the court below's above determination that the disposition of this case does not violate Article 125-3 of the former Rules on Urban Planning Facilities (amended by Ordinance No. 257 of Aug. 18, 2000). Thus, the judgment of the court below is not erroneous in the omission of judgment due to the incomplete hearing as otherwise alleged in the ground of appeal.
The Supreme Court precedents cited by the defendant hold that the building permit authority has discretion to deny a request for a building permit in certain cases, and the decision of the court below of this case was exceeded or abused by the discretion of the building permit authority in the disposition of this case in light of all the above circumstances. Thus, the above decision of the court below is inappropriate as a precedent to criticize the decision of the court below.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Lee Yong-woo (Presiding Justice)