Lot shopping Co., Ltd. (Law Firm Jungwon, Attorneys Kim Su-chul et al., Counsel for the plaintiff-appellant)

Ulsan Metropolitan City Head of Nam-gu (Law Firm International Law, Attorneys Kim Min-min et al., Counsel for the plaintiff-appellant)

Defendant Intervenor (Law Firm Won, Attorneys Shin Jae-ju et al., Counsel for the defendant-appellant)

May 6, 2015

Ulsan District Court Decision 2013Guhap1571 Decided July 17, 2014

1. The defendant's appeal is dismissed.

2. Of the appeal costs, the part arising between the Plaintiff and the Defendant is borne by the Defendant, while the part arising from the participation by the Defendant is borne by the Intervenor.

1. Purport of claim

The Defendant’s disposition of non-permission to file an application for building permit with the Plaintiff on May 3, 2013 is revoked.

2. Purport of appeal

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

1. Quotation of the first instance judgment

The reasoning of the judgment made by the court as to the instant case is as follows, and the reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance, except for adding the judgment as to the argument of the Intervenor joining the Defendant, and thus, this is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

【Supplementary Use】

○ The circumstances in Section 11(b) of the first instance judgment are as follows.

Article 15 of the Infant Care Act (hereinafter “Act”) provides that “A person who intends to establish and operate a child-care center shall meet the standards for establishment prescribed by Ordinance of the Ministry of Health and Welfare.” Article 9 [Attachment Table 1] of the Enforcement Rule of the Act (hereinafter “Enforcement Rule”) provides that “A child-care center shall be located at a place less than 50 meters away from dangerous facilities.” In such cases, dangerous facilities refer to facilities prescribed in each subparagraph of Article 9 (3) of the Regulations on Standards, etc. for Housing Construction.” However, there are no particular provisions regarding the specific scope of “child-care center” which is the basis for calculating separation distance in law or the Enforcement Rule of the Act. Meanwhile, according to subparagraphs 2 and 3 of Article 2 of the Act, “child-care center” refers to an “institution that provides infant-care services upon entrustment of guardians,” and “child-care center” refers to a place that mainly provides safe protection, rearing, education suitable for the characteristics of infants and children’s child-care facility, etc., and the meaning of “private school or collective school” is established.

Based on the above legal principles, in this case, ○○ Child Care Center is established in ○○○○○, a multi-family housing, in △△△dong, and there is no dispute between the parties as to the fact that the entrance and exit from ○○○○○dong and the pertinent heading ○○○○ is far away at least 50 meters from the scheduled location of the division. Thus, the existence of ○○ Child Care Center does not constitute a ground for non-permission of the application for the permission of the instant gas station.

In this regard, the Defendant asserts that the Defendant’s Intervenor should calculate the separation distance on the basis of the outer boundary line of the entire building of ○○ Child Care Center, since the Defendant mainly attended the aftermath of ○○○ Child Care Center, and there is an exclusive playter, parking lot, and other auxiliary spaces for ○○ Child Care Center outside the above ○○○○○○○ Group, even though it is not so, the Defendant’s Intervenor asserts that the separation distance should be calculated on the basis of it. On the other hand, as seen earlier, the Defendant’s Intervenor’s assertion that the outer wall of ○○ Child Care Center is the basis for calculating the separation distance, and there is no evidence to acknowledge it as to whether the parking lot for ○○ Child Care Center exists, and there is no evidence to acknowledge it as to the exclusive playter for ○○ Child Care Center, and there is no ground to recognize that the Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s 2’s removal without permission, in violation of Article 31,40, and 4 of the Enforcement Decree of the Housing Act.

【Supplementary Judgment】

If the above grounds alleged by the Defendant’s Intervenor and the Defendant’s Intervenor are not recognized to be identical to the grounds of the instant disposition and basic facts, the Defendant asserts that the Defendant may re-disposition the application for permission to construct the station of this case on the grounds of the above grounds alleged by the Defendant’s Intervenor. In such a case, even if the Plaintiff’s claim in this case is accepted, the non-permission disposition may be rendered again, and thus, the Plaintiff’s claim shall be dismissed by a ruling

The defendant joining the defendant's assertion that the above reasons alleged by the defendant joining the defendant do not constitute the reasons for rejecting the application for a building permit of the gas station of this case, and there is no evidence to prove that the revocation of the disposition of this case is not significantly inappropriate for public welfare, and therefore the above argument by the defendant joining the defendant cannot be accepted.

2. Conclusion

Therefore, the plaintiff's claim 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.

Judges Dok-ho (Presiding Judge)