[2] The purpose of the legal fiction of authorization and permission under the Building Act, and whether the requirements for authorization of implementation plan for an urban planning facility project under the National Land Planning and Utilization Act should be satisfied at the time of filing an application for a building permit for a parking lot which is an urban planning facility (affirmative)

[2] The purport of the legal fiction of authorization under the Building Act is to simplify the windows to the competent administrative agency of the building permit in relation to the legal fiction of authorization and permission, simplify the procedure, and reduce the cost and time to protect the rights and interests of the people. It is difficult to view that all the requirements of authorization and permission under the Act on the Legal Fiction of Authorization and Permission are excluded. Thus, the administrative agency, upon receiving an application for construction permission for a parking lot which is an urban planning facility business, shall grant permission only when the requirements of authorization for an implementation plan for an urban planning facility project as well as the requirements of authorization for an

Article 11(1) and (5)4 of the former Building Act (amended by Act No. 12246, Jan. 14, 2014); Article 3-4 [Attachment Table 1] subparag. 20(f) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 25786, Nov. 28, 2014); Article 6(1)3 of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 147, Nov. 28, 2014); Article 2 subparag. 6(a), Article 7, and Article 88(3) of the former Enforcement Decree of the Parking Lot Act (amended by Act No. 11922, Jul. 16, 2013); Article 2 subparag. 15 of the former Enforcement Decree of the Parking Lot Act (amended by Presidential Decree No. 25130, Dec. 13, 2013); Article 25(1) of the former Enforcement Decree of the Parking Act.

1. As to whether there is a legal interest in seeking revocation of the instant disposition against the Plaintiffs

Even if a third party who is not the direct counter-party to an administrative disposition is not a party, if the legal interest protected by the administrative disposition is infringed, the party is entitled to receive the decision of the propriety thereof by filing an administrative litigation seeking the revocation of the administrative disposition. The legal interest refers to the individual, direct and specific interest protected by the relevant laws and regulations and relevant laws and regulations (see Supreme Court en banc Decision 2006Du330, Mar. 16, 2006, etc.).

According to the reasoning of the lower judgment, the lower court determined that, on the premise that the underlying laws and regulations of the instant disposition, such as the National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; Act No. 11922, Jan. 17, 2014; hereinafter “National Land Planning Act”) protect the safety of people living in a residential area and the interests of people living in a residential area, such as healthy living environment, etc., individually, directly and specifically, and specifically, under the premise that legal interests of the Plaintiffs are infringed on by the construction permit of this case or by the construction permit of this case (hereinafter “the instant construction permit of this case”) under the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 25050, Dec. 30, 2013; hereinafter “Enforcement Decree of the National Land Planning Act”).

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to legal interest in an appeal litigation.

2. As to whether the designation of an urban planning facility business operator of the instant building and the authorization of an implementation plan are deemed granted based on the approval of the Bogeumjari Housing District Plan

A. The former Special Act on the Construction of Bogeumjari Housing, etc. (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Bogeumjari Housing Act”) provides that “the purpose of this Act is to contribute to the pleasant residential life of the people by promoting the residential stability and the elevation of residential standards for low-income groups and by promoting the purchase of houses by homeless persons” (Article 1). The State or a local government executor of a Bogeumjari Housing Construction Project, the Korea Land and Housing Corporation, or a local government-invested public corporation, etc. established for housing projects pursuant to Article 49 of the Local Public Enterprises Act, which is subject to designation by the Minister of Land, Transport and Maritime Affairs (Article 4). In addition, Article 18(1)8 of the former Bogeumjari Housing Act provides that when a project plan for a Bogeumjari Housing district under Article 17 has been approved or amended, the designation of an executor of an urban or Gun planning

Meanwhile, Article 86 of the National Land Planning and Utilization Act provides that urban or Gun planning facility projects under its jurisdiction shall, in principle, be implemented by the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Special Self-Governing Province Governor, or the head of a Si/Gun (Paragraph 1), and other persons shall be designated by the Minister of Land, Infrastructure and Transport, a Mayor

Considering the contents and purport of the relevant provision that restricts the eligibility of a project implementer in order to achieve the legislative purpose, and the structure and history of the relevant provision, such as that the former Bogeumjari Housing Act does not separately provide for the succession of authorization of an implementation plan, the provisions on the designation of an implementor of an urban planning facility project under the National Land Planning Act under Article 18(1)8 of the former Bogeumjari Act and the legal fiction of authorization of an implementation plan shall apply to cases where a project implementer under Article 4 of the former Bogeumjari Housing Act has obtained approval of an implementation plan, and the legal fiction of the designation of an implementation plan and the legal fiction of authorization of an implementation plan shall not be deemed to have succeeded to the validity of the project implementer’s designation and the

B. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially cited by the lower court, ① on December 3, 2009, the Minister of Land, Transport and Maritime Affairs designated a large of 769,00 square meters, including the Seocho-gu Seoul Metropolitan Government, as a Bogeumjari Housing District, and set the Seoul E.S. (hereinafter “E.S.”) as its implementer. On April 28, 2010, the Minister of Land, Transport and Maritime Affairs approved and publicly notified the district plan of the said housing zone; ② on December 28, 2012, the Minister of Land, Transport and Maritime Affairs changed the number of the instant land for religious facilities to 3,618 square meters (hereinafter “instant parking lot site”), and approved and publicly notified the alteration of the district plan to install the “off-road parking lot and auxiliary facilities pursuant to the Parking Lot Act,” the total area of the instant parking lot to 3,618 square meters (hereinafter “the instant parking lot site”).

C. Examining these facts in light of the legal principles as seen earlier, it cannot be deemed that the designation and implementation plan of a parking lot installation project, which is an urban planning facility for the ELSD or the Defendant Intervenor, is deemed as lawful under the approval of the instant district plan, or that the validity of the designation of a project operator and the constructive authorization of an implementation plan for the EP construction is succeeded to the Defendant Intervenor via ELSD.

D. Although the lower court’s explanation of its reasoning is inappropriate, it is justifiable to have determined that the designation and implementation plan of an urban planning facility project operator against ELSD or Defendant Intervenor was not deemed as constructively authorized by the approval of the instant district plan, and there is no error by misapprehending the legal principles on the designation of an implementor of an urban planning facility project under the former Bogeumjari Housing Act and the National Land Planning Act, and

3. As to whether the requirements for urban planning facilities under the National Land Planning and Utilization Act for the instant building are satisfied

A. (1) Article 11(1) and (5)4 of the former Building Act (amended by Act No. 12246, Jan. 14, 2014; hereinafter “Building Act”) provides that a person who intends to obtain a building permit shall be deemed to have obtained a building permit and obtain authorization for an implementation plan pursuant to Article 86(5) of the National Land Planning and Utilization Act; and Article 6(1)3 of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 147, Nov. 28, 2014; hereinafter “Building Act”) provides that a person who intends to obtain a building permit shall submit an application and required documents to obtain a building permit pursuant to each subparagraph of Article 11(5) of the Building Act to the competent permitting authority. In addition, Article 8(3) and (4) of the National Land Planning and Utilization Act provide that an implementer of an urban/Gun planning facility project is obligated to submit an application and required documents to obtain a building permit.

(2) Article 2 Subparag. 7 of the National Land Planning and Utilization Act provides that “facilities determined by an urban or Gun management plan among infrastructure shall be determined as urban planning facilities, and Article 2 Subparag. 6(a) provides that “facilities prescribed by Presidential Decree, such as roads, railroads, harbors, airports, and parking lots, shall be determined as infrastructure.” Article 2(1)1 of the Enforcement Decree of the National Land Planning and Utilization Act provides that “facilities prescribed by Presidential Decree, such as roads, railroads, harbors, airports, and parking lots, shall include incidental facilities and convenience facilities necessary

In addition, Articles 29 and 30(2) of the former Rules on the Determination, Structure, and Installation Standards of Urban or Gun Planning Facilities (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 51, Dec. 31, 2013) provide that “parking lot” means an off-road parking lot under Article 2 subparag. 1(b) of the Parking Lot Act, and the determination, structure, and installation of a parking lot shall be governed by the Parking Lot Act, according to the delegation of Article 43(2) of the National Land Planning and Utilization Act.

In addition, Article 2 Subparag. 11 of the Parking Lot Act prescribes “a building used as a parking lot in excess of the rate prescribed by Presidential Decree among the total floor area of a building” as a parking-only building, and the proviso of Article 1-2(1) of the former Enforcement Decree of the Parking Lot Act (amended by Presidential Decree No. 25935, Dec. 30, 2014) requires that the proportion used as a parking lot out of the total floor area of the building should be at least 70 percent if the part used for any purpose other than a parking lot is an automobile-related facility, etc. In addition, Article 6(1) of the Parking Lot Act, Article 6(4) and (5) of the Enforcement Rule of the Parking Lot Act, and Article 16(1) of the Seoul Metropolitan Government Ordinance on the Installation and Management of Parking Lots in accordance with the delegation thereof, “automobile management facility” is one of the ancillary facilities available in an off-road parking lot. Article 3-4 [Attachment 1] 20(f) of the former Enforcement Decree of the Building Act.

B. The purport of the Building Act’s legal fiction of authorization and permission is to simplify the windows to the competent administrative agency of building permission, simplify the procedure, and reduce the cost and time, thereby excluding all examination on the requirements for authorization and permission in accordance with the relevant laws regarding the legal fiction of authorization and permission. Therefore, an administrative agency that received an application for building permission for a parking lot, which is an urban planning facility, must grant the permission only when the requirements for authorization of an implementation plan for an urban planning facility project as well as the requirements for authorization under the Building Act, are satisfied (see Supreme Court en banc Decision 2010Du14954, Jan. 20, 201).

In addition, in full view of the language and purport of the relevant provisions as seen earlier, and the fact that the disposition to authorize an implementation plan for an urban planning facility project is to realize a specific urban planning facility project in reality, the exclusive parking building installed as an urban planning facility project shall meet the requirements prescribed by the Parking Lot Act and relevant ordinances, such as the use and size of the part used for purposes other than a parking lot, and the part used for purposes other than a parking lot shall also fall under “a supplementary facility and convenience facility necessary for the display of functions and use of infrastructure themselves” as prescribed by the National

C. According to the reasoning of the judgment below and the reasoning of the judgment of the court of first instance as cited by the court below, although the building of this case meets the requirements of the type, size ratio, and parking lot law as stated in the instant district plan, the building of this case is scheduled to be used as a "Adodonam Center" under the name of which the center for maintenance and improvement, and the center for maintenance and improvement, which are located in the same space. ② The building of this case is planned to be used as a "Adonam Center" under the name of the same space. ② The maintenance factory of this case, etc. of this case is not only reasonable in size, but also its appearance, structure, work site and equipment scheduled to be installed. ③ Since the parking lot of this case is expected to be used as a parking lot for customers or employees who use the instant maintenance factory of this case, it is expected that most of the parking lot of this case would be used as a main facility of this case, and the building of this case is likely to function only as a subsidiary facility of the instant maintenance factory of urban planning facilities under the National Land Planning Facilities Act.

D. In light of the above legal principles and records, although the court below's explanation was inappropriate, it is just to determine that the instant disposition was unlawful on the ground that the instant building does not meet the requirements of urban planning facilities under the National Land Planning and Utilization Act, and there is no error of law by misapprehending the legal principles as to whether the instant building constitutes a parking lot as an urban planning facility or the interpretation of appurtenant

4. As to whether there is an error of deviation or abuse of discretionary power

According to the reasoning of the first instance judgment cited by the lower court, the lower court determined that the instant disposition was unlawful as it deviates from and abused discretion, on the grounds stated in its reasoning, since the construction act of the instant rearrangement factory, etc. was not an exchange of an urban planning facility project but an independent development act does not meet the requirements for permission for development activities

In light of the records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles on deviation and abuse of discretionary power, contrary to what is alleged in the

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the part resulting from the participation of the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)