Hem Disease (Law Firm Hoh, Attorneys Kim Young-ok, Counsel for the plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Cho Jong-soo et al., Counsel for the defendant-appellant)

July 14, 2004

Seoul Administrative Court Decision 2003Guhap19241 delivered on October 24, 2003

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant's rejection disposition against the plaintiff on April 22, 2003, such as change of the state-designated cultural heritage phenomenon, shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged by the whole purport of the pleading in each of the statements in Gap evidence 2, Gap evidence 2, Gap evidence 3-1, 2, Gap evidence 5-1 and 10, Eul evidence 4-3, and 4.

(a) Related Acts and subordinate statutes;

Cultural Heritage Protection Act

Article 20 (Matters to be Permitted) Any person who intends to do any of the following acts with respect to State-designated cultural heritage shall obtain permission from the Administrator of the Cultural Heritage Administration as prescribed by the Presidential Decree. The same shall apply to any modification to permitted matters:

4. Altering (including making a specimen or stuffing a natural monument) the current state of State-designated cultural heritage (including its protective facilities and protection zone, and dead natural monument) or any act prescribed by the Ordinance of the Ministry of Culture and Tourism which is feared to affect the preservation thereof.

Enforcement Decree of the Cultural Heritage Protection Act

A person who intends to obtain permission from the Administrator of the Cultural Heritage Administration for an act falling under any subparagraph of Article 20 of the Act shall submit an application for permission stating the type, designation number, name, quantity, location, etc. of the State-designated cultural heritage concerned to the Administrator of the Cultural Heritage Administration through the head of the competent Si/Gun/Gu (referring to the head of an autonomous Gu; hereinafter the same shall apply) and the Mayor/Do Governor: Provided, That an application for permission for an act falling under subparagraph 3 of Article 20 of the Act may not be filed by the head of the competent Si/Gun

Enforcement Rules of Cultural Heritage Protection Act

Article 18-2 (Alteration of Current State of State-designated Cultural Heritage)

(2) Acts which may affect the preservation of State-designated cultural properties (including protective facilities and protection zones; hereafter the same shall apply in this paragraph) under subparagraph 4 of Article 20 of the Act shall be as follows:

2. Acts falling under any of the following items, conducted in an area within 500 meters from the outer boundary of the State-designated cultural heritage:

(c) Installing or enlarging a building or facility which has impact on sunshine volume of the State-designated cultural heritage concerned or is feared to impair the landscape thereof;

(b) The current status, etc. of red hills;

(1) The red and hills (hereinafter referred to as “redle 207”) located in Namyang-si, Geumyang-si, which are 141-1, are State-designated cultural properties pursuant to the Cultural Heritage Protection Act (Seung-dong 207), and there are two seedlings, such as red and yellow agents, net yellow agents, and yellow lele, etc. between trees and landscaping facilities which are beautiful in the protected area.

In order to protect Shell, there are lots around the wall, and there are parking lots for visitors outside the wall, and the protected forests consisting of trees of about 4 to 5 meters between the parking lot and the red hill protection zone.

(c) Location, etc. of the application site;

(i) The Plaintiff is the owner of Geumyang-si, Geumyang-dong, Geumyang-dong, the 434-3 Miscellaneous land of 1,687 square meters, 434-16 Miscellaneous land of 324 square meters, 434-17 Miscellaneous land of 234 square meters (hereinafter “instant land”).

west The instant land is located at the distance of 58 meters from the wall of the red hill, the nearest ridge, and 200 meters away from the wall of the near hill.

Abstract is currently used as a secondhand trade company as the site of this case.

D. Disposition of this case

(1) On April 7, 2003, the Plaintiff filed an application for change of State-designated cultural heritage phenomenon with the Defendant via the Namyang-ju Mayor and the Governor of the Gyeonggi-do to construct sales and neighborhood living facilities with the second floor above the ground, the total floor area of 4,494 square meters on the instant land (hereinafter “the instant building”).

Belgium, the Defendant rendered the instant disposition rejecting the alteration of the current state on the ground that the instant land is in the front of her ability, and that the construction of a new building is not possible due to the preservation and management of private surrounding landscape because it is adjacent to a historic site protection zone.

2. Whether the disposition is lawful;

(a) Facts of recognition;

The following facts may be recognized by taking into account the whole purport of arguments as a result of on-site inspection conducted by the court of first instance and the records and images of Gap 1 through 4, Gap 10, Eul 5-1, Eul 5-2, Eul 7-1 through 4, Eul 10-1 through 10, Eul 12, and Eul 12:

(1) According to the boundary of the red hill protection zone, a wooden hall (6th floor), gold dong office (2nd floor), restaurant (2nd floor), gas station, etc. on the east side of the instant land consisting of the first floor and the second floor, the house center, the restaurant, etc. on the east side, and an area within 500 meters from the boundary of the red hill protection zone has already been formed by both commercial buildings and the housing, etc. according to the Gyeongjudo.

The plaintiff is expected to construct the building of this case with the Korean style and roof with a height of 5.85 meters.

Article 25(1) of the Constitution of the Republic of Korea (hereinafter referred to as the "State") provides that a party may look at the border protection forest of the Hongne area through some sites, including the land in this case, and that another party shall not directly view the border protection forest of the Hongne area.

C. Determination

(1) As cultural heritage is a national, national, and global heritage of outstanding historic, artistic, academic, and scenic value, it is difficult to recover it in itself, and even if its recovery is possible, it is desirable to preserve it in its original form because it takes enormous costs and time. Furthermore, in light of the fact that various development activities have increased recently, the environment surrounding cultural heritage and its preservation is being damaged as the day, and the need to protect cultural heritage in order to promote people's cultural and mental improvement as well as contribute to the development of human culture is more urgent, and even if it is an external area within the protection area of cultural heritage, it should be limited if there is a concern that the preservation of cultural heritage might affect the preservation of cultural heritage due to development activities, but if there is no influence on the preservation of cultural heritage, or if it is not possible to recover it, it should not be prohibited to protect people's property rights.

D. However, as seen above, the land of this case is adjacent to the boundary of the red hill protection zone. However, even if the land of this case is located in the north north of the red hill and does not affect sunshine, distribution quantity, and other environmental conditions, among the red hill protection zones, the land of this case includes wedding, commercial buildings, Dong offices, housing, etc., and even if the building of this case is newly constructed, it cannot be deemed that the red hill or its surrounding landscape is additionally damaged even if the building of this case is newly constructed, even if it is not so far as the construction of this case does not reach a certain degree of harmony with the red hill, it can be deemed that the construction of this case's land of this case is no more than 0 red hills and its surrounding hills, but the view interfered with the construction of the construction of this case is no more than 0 red hills and its surrounding forests, and thus, it can be seen that the construction of this case's land is no more likely to affect the construction permission of this case's surrounding areas than 000 hills.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jong-sung (Presiding Judge)