Whether an administrative agency may refuse to accept a report on the construction of a temporary building under the former Building Act on the ground that it does not meet the standards for permission for development activities under the National Land Planning and Utilization Act (negative in principle)

Before the amendment on January 17, 2017, the former Building Act separates a temporary building from a permitted system and a reported system according to the area and use for which the temporary building is constructed, and does not completely provide for the legal fictions of authorization and permission, including permission for development activities, under the National Land Planning and Utilization Act, with respect to the report of a temporary building. Considering the purpose of relaxing the regulation on temporary building subject to reporting, an administrative agency may not refuse to accept the report on the construction of a temporary building on the ground that it does not meet

Article 20(1) and (3) of the former Building Act (Amended by Act No. 14535, Jan. 17, 2017); Article 15(5) and (9) of the Enforcement Decree of the Building Act

Plaintiff 1 and one other (Law Firm Cheongnam, Attorneys Kim Jong-young, Counsel for the plaintiff-appellant)

Jincheon-gun (Law Firm LLC, Attorneys Kang Gyeong-chul et al., Counsel for the plaintiff-appellant)

Daejeon High Court (Cheongju) Decision 2017Nu2777 decided December 13, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Article 20(1) of the former Building Act (amended by Act No. 14535, Jan. 17, 2017; hereinafter the same) provides, “A person who intends to construct a temporary building in an area planned for urban or Gun planning facilities or planned urban or Gun planning facilities shall obtain permission from the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun/Gu.” However, Article 20(3) provides, “A person who intends to construct a temporary building for any purpose prescribed by Presidential Decree, such as disaster restoration, entertainment, exhibition, construction, etc., shall do so after filing a report thereon with the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun/Gu in accordance with the retention period, installation standards and procedures prescribed by Presidential Decree.” Accordingly, each subparagraph of Article 15(5) of the Enforcement Decree of the Building Act provides for the retention period of a temporary building, and Article 15(7) provides that a temporary building shall be issued to the reporter after confirming.

The former Building Act, before January 17, 2017 amended, separates a temporary building from a permitted system and a reported system in accordance with the area and use for which the temporary building is constructed, and does not have any provision on the legal fictions of authorization and permission, including permission for development activities, under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”). Considering the purport of relaxing the regulation on temporary buildings subject to reporting, the administrative agency may not refuse to accept the report on the construction of a temporary building on the ground that it does not meet the standards for permission for development activities, barring special circumstances.

2. A. Review of the reasoning of the first instance judgment cited by the lower judgment reveals the following facts.

1) On March 9, 2016, the Plaintiffs purchased a temporary building with the purport of constructing a temporary building with the total floor area of 2,480 square meters in the instant land for the purpose of a stable on the instant land, and filed a report on the construction of a temporary building with the purport of constructing a temporary building with the total floor area of 2,480 square meters in each of the instant land.

2) On March 11, 2016, the Defendant refused to accept the report on the following grounds: (a) the instant land constitutes a good farmland which is organized within an agricultural and forest area that needs to be used for agricultural purposes by combining farmland; and (b) the use of it as a stable site does not satisfy the requirements for “condembing with the surrounding environment,” which is the criteria for permission for development activities under Article 58 of the National Land Planning and Utilization Act and Article 56 of the Enforcement Decree of the same Act.

B. Examining these facts in light of the legal principles as seen earlier, even if the Plaintiffs were to be permitted to proceed to the construction of a temporary building only after obtaining permission for development activities under the National Land Planning Act, insofar as the Plaintiffs did not file an application for permission for development activities under the National Land Planning Act with the Defendant, but filed a report on the construction of a temporary building under the former Building Act, the Defendant is required to verify whether the requirements for the construction of a temporary building under the former Building Act are satisfied and determine whether to accept the report, and not to refuse to accept the report on

However, if the plaintiffs intend to build a stable-use temporary building after changing the form and quality of the land by way of concrete packaging, etc. on the instant land after the receipt of the report, it constitutes “construction of a building or installation of a structure” and “change of the form and quality of land” under the National Land Planning and Utilization Act, and barring special circumstances, it is necessary to obtain permission for development activities under the National Land Planning and Utilization Act in principle, barring special circumstances that it constitutes a “minor act” under subparagraphs 1 through 3 of Article 53

C. Nevertheless, the lower court determined otherwise on the ground that the Plaintiff’s report on the construction of a temporary building under Article 20(3) of the former Building Act is deemed as the relevant authorization and permission under each subparagraph of Article 11(5) of the former Building Act, including permission for development activities under the National Land Planning Act, and on the erroneous premise that the relevant authorization and permission under each subparagraph of Article 11(5) of the former Building Act is deemed as legal. In so determining, the lower court erred by misapprehending the legal doctrine on the report on the construction of a temporary building under the former Building Act, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)