[1] Whether a building permit holder may refuse a building permit for reasons other than the grounds for restriction under the relevant laws, such as the Building Act and the Urban Planning Act (negative)

[2] Whether a building permit can be restricted solely on the occurrence of a civil petition against an application for a building permit of a funeral hall (negative)

[1] The construction permit holder under Article 8 of the Building Act shall, as a matter of course, grant a construction permit under the same Act unless the application for a construction permit is in conflict with any restriction under the related laws, such as the Building Act and the Urban Planning Act, and shall not refuse it for reasons other than those under the relevant laws and regulations.

[2] Even if an application for a building permit of a funeral hall was filed, if it was not filed by construction of a building for the purpose substantially inappropriate to the utilization status of the neighboring land and building, it shall not be deemed a ground to restrict the building permit only by the reason that it is a civil petition related to the application for a building permit.

[1] Article 8 of the Building Act / [2] Article 8 of the Building Act, Article 8 (6) 3 of the Enforcement Decree of the Building Act

[1] Supreme Court Decision 92Nu3038 delivered on December 11, 1992 (Gong1993Sang, 476), Supreme Court Decision 94Nu14247 delivered on October 13, 1995 (Gong195Ha, 3802)

Plaintiff Co., Ltd. (Attorney Cho Dong-dong et al., Counsel for the plaintiff-appellant)

The head of Bupyeong-gu Seoul Metropolitan Government

1. The defendant's disposition revoking the return of the application for permission to construct a funeral hall to the plaintiff on September 3, 1996.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

Gap evidence 2, Gap evidence 3, Eul evidence 5 through 8 (the evidence No. 6 is the same as Eul evidence No. 1-3), Eul evidence No. 9-1, 2, Eul evidence No. 1-2, Eul evidence No. 3-1, 2, 3-2, and Eul evidence No. 4-1 through 4 can be acknowledged as follows in full view of the whole purport of the pleadings, and there is no counter-proof otherwise.

A. On June 17, 1996, the Plaintiff entered into a contract with the Nonparty to acquire the land of 12,065.1 square meters (hereinafter in this case’s land) located within the quasi-industrial area within the urban planning zone, and filed an application for land transaction permission with the Nonparty on June 27, 1996 for the purpose of the new construction and operation of the funeral hall, and filed an application for permission on the land transaction permission with the Defendant on June 27, 1996, for new construction of the above ground area of 547.31 square meters, 2,018.4 square meters on the ground, 4 stories above ground, and the funeral hall on the underground floor (hereinafter in this case’s building).

B. On June 28, 1996, in order to deliberate on the above building permit application, the court ordered the above building permit application to be presented to the civil petition mediation committee on July 4 of the same year by the defendant to the head of the above Gu office, and the civil petition mediation committee consisting of the head of the relevant department and the head of the Gun/Gu office who is the head of the Gun/Gu office to comprehensively review the civil petition related to the above building permit application of this case and notified the above building permit of the defendant. On the 10th of the same month, 305 residents, who are residents of the Dong-si Office (number 1 omitted) to transfer the above building permit of this case, and 305 residents, who are residents of the Dong-si-si and the head of the Gun/Gu office, were in violation of the residential environment education right of this case, and 16th of the same month, the above committee violated the residential environment education right of this case, and 26th of the same month.

C. On August 30, 1996, the defendant presented a deliberation on the validity of the above building permit to the Building Committee in Busan City, but the above funeral hall does not fall under the facilities for the challenge of residents, but the above funeral hall was rejected to the purport that the defendant would make a decision to delegate the building permit to the defendant properly by comprehensively examining the civil petitions, environment, noise (e.g., surrounding shieldinging water or soundproof walls) and traffic impact assessment, etc. of the facilities for the challenge of residents, and in accordance with this decision on September 3 of the same year, the defendant would make a decision to dismiss the above building permit application in accordance with the result of the deliberation by the Building Committee in Bupyeong-si as stipulated under Article 8 (4) of the Building Act and supplement the environment, noise and traffic impact assessment (hereinafter the disposition in this case).

2. Whether the disposition is lawful;

A. The parties' assertion

As to the defendant's assertion that the disposition of this case is legitimate on the grounds of the above disposition grounds and applicable provisions of law, the plaintiff argues that the disposition of this case rejecting the above building permit application is unlawful on the grounds that the plaintiff did not violate any restrictions provided by the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, and does not correspond to "the construction of buildings for inappropriate purposes" as provided by Article 8 (4) of the Building Act and Article 8 (6) 3 of the Enforcement Decree of the Building Act and Article 8 (6) 3 of the same Act, and therefore, the building permit cannot be restricted because it does not correspond to "the construction of buildings for inappropriate purposes". Thus, the defendant must naturally grant building permit, but the civil petition related to the above construction is not resolved, and the environment, noise and traffic impact assessment report

B. Relevant statutes

＊ 건축법

Article 4 [Building Committee] (1) The Minister of Construction and Transportation, the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, and the head of a Si/Gun/Gu shall establish a building committee to investigate and deliberate on important matters concerning the enforcement of this Act

Article 8 [Building Permit] (1) A person who intends to construct a building within an urban planning zone, an urban area or quasi-urban area designated by the Act on the Utilization and Management of the National Territory, or a building within an area prescribed by the Presidential Decree and a building with a total floor area of at least 200 square meters or three stories or more

(4) Where the head of a Si/Gun/Gu deems that construction of a building in the relevant site is unreasonable as prescribed by Presidential Decree in light of urban landscape, surrounding environment, etc., he/she may not grant building permission after deliberation by the Building Committee.

(1) The prohibition and restriction of building in the area designated by the Urban Planning Act shall be determined by the Presidential Decree.

＊ 같은법시행령

Article 5 [Building Committee] (3) In order to deliberate on the following matters pursuant to the provisions of Article 4 of the Act, a local building committee consisting of not more than 50 members, including a chairperson and a vice-chairperson, shall be established in the Special Metropolitan City, Metropolitan City, Do, Si, Gun, and Gu

3. Permission limit under Article 8 (4) of the Act.

Article 8 [Construction Permission] (6) Cases where no construction permission may be granted pursuant to the provisions of Article 8 (4) of the Act shall fall under any of the following subparagraphs:

3. Where a building of substantially inappropriate usage is built in light of the current utilization of the neighboring land and buildings.

Article 65 [Permissible Standards, etc. for Construction within Special-Purpose Areas] (1) Prohibitions and restrictions on construction of buildings within special-purpose areas designated under the Urban Planning Act pursuant to Article 45 (1) of the Act shall be governed by the provisions of the following subparagraphs:

10. A quasi-industrial area shall be as provided for in attached Table 11;

[Attachment 11] Prohibition of and Restriction on Construction of Buildings within Quasi-Industrial Areas (Related to Article 65 (1) 10)

2. Kinds of the buildings which may be constructed under the conditions as prescribed by the Building Bylaws.

(t) Funeral parlors;

* Buildings other than those under subparagraphs 1 and 2 shall not be constructed.

＊부천시 건축조례(을 제1호증의 4)

Article 26 (Prohibition of and Restriction on Construction of Buildings within Quasi-Industrial Areas) Buildings prescribed by Municipal Ordinance among buildings allowed to be constructed within quasi-industrial areas under Article 65 (1) 10 of the Decree pursuant to Article 65 (1) 10 of the Decree, shall be the following buildings:

20. Funeral parlors;

C. Facts

In full view of Gap evidence 10 to 14, Eul evidence 2-2, Eul evidence 6-1 and Eul evidence 6-2, and the whole purport of the pleading, there is no counter-proof that the following facts are acknowledged:

The instant land is a quasi-industrial area that can be constructed as a funeral hall under the provisions of the construction-related Acts and subordinate statutes and Municipal Ordinance of 1,000. The instant land is located within the same boundary. The surrounding area of the instant quasi-industrial area except for the Dong side. There are general residential areas. There are ○○-Ba (170 households) a road and one lot of land adjoining to the instant land near the lower boundary of the said general residential area. There are Do apartment houses (970 households) located within the south part of the instant apartment site adjoining to the south part of the instant apartment site, which is located within the lower part of the instant apartment site. The instant apartment site is located within the lower part of the instant apartment site, which is located within the lower part of the instant apartment site, and is located within the lower part of the instant apartment site, which is located within the lower part of the instant apartment site, and is located within the lower part of the instant apartment site, which is located within the lower part of the instant 1,000 square meters away from the lower part of the instant residential area.

(d) Markets:

(1) Inasmuch as an application for a building permit under Article 8 of the Building Act does not comply with any restriction stipulated by the relevant laws, such as the Building Act and the Urban Planning Act, a building permit holder shall, as a matter of course, grant a building permit under the same Act, and may not refuse the application for a building permit on grounds other than the grounds for restriction under the relevant laws and regulations (Supreme Court Decision 92Nu3038 delivered on December 11, 1992, Supreme Court Decision 94Nu14247 delivered on October 13, 1995). According to Article 8(4) of the Building Act and Article 8(6)3 of the Enforcement Decree of the Building Act and Article 8(6) of the same Act, where a building permit holder constructs a building for a remarkably inappropriate purpose in light of the current status of the use of neighboring land and buildings, the head of Si/Gun/Gu may not grant a building permit after deliberation by the Building Committee, and the above facts are examined in light of the above fact that the application for the building permit in question is obviously inappropriate.

(2) According to the above, the land of this case is located within the east boundary of the quasi-industrial area where the funeral hall can be constructed, and its surrounding area covers all factories except the east, and is connected to the above general residential area, but the building of this case is divided by the second line road across the east. In addition, the building of this case is modern type building, which is installed indoors such as a gate, wedding room, resting room, etc., and the relation with soundproof facilities installed with soundproof facilities is not likely to harm the pleasant living environment or the surrounding factory, or interfere with the use of the above general residential area. Considering that the number of the funeral hall located in the Seocheoncheon-si and the number of houses used for funeral and funeral-related vehicles used for the building of this case and the number of houses installed in the building of this case, the building of this case can not be seen as significantly impeding the building permit of this case and the building permit of this case, and it cannot be seen that the above building permit of this case and its neighboring residential area cannot be seen as significantly impeding the building permit of this case and its neighboring residential area.

(3) Therefore, since there is no ground to reject the Plaintiff’s application for the instant building permit, the instant disposition that the Defendant rejected the application to the Plaintiff is unlawful.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case is legitimate, and it is decided as per Disposition by admitting it.

Judges Lee E-young (Presiding Judge)