[1] Legal nature of the building permit that entails an alteration of land form and quality in an urban area designated by the National Land Planning and Utilization Act

[2] The method of judicial review on speed action and discretionary action

[1] The building permit that entails an alteration of the form and quality of land in an urban area as determined by the National Land Planning and Utilization Act shall be deemed to have the nature of permission to change the form and quality of land under Article 8 (1) 4 and (3) of the Building Act and permission to change the form and quality of land under Article 56 (1) 2 of the National Land Planning and Utilization Act. In full view of each of the provisions of Article 58 (1) 4 and (3) of the same Act, Article 56 (1) [Attachment Table 1] 1 (a), (d), (1) and (e) (1) of the Enforcement Decree of the same Act, permission to change the form and quality of land under Article 56 (1) 2 of the same Act shall be deemed to have the discretionary power in determining whether the prohibition requirement is defined as an indefinite concept, and therefore the building permit that entails an alteration of the form and quality of land in an urban area as designated by

[2] In a case where administrative acts are classified into binding acts and discretionary acts, the judicial review of the two parties shall be based on the principle of fact-finding and the interpretation and application of the relevant laws and regulations in the case of the former, and shall be based on the method of deciding the legitimacy of the judgment made by the administrative agency in light of the conclusion. However, in the latter case, in consideration of the possibility of public interest judgment based on the discretion of the administrative agency, the court shall only examine whether the pertinent act is deviation or abuse of discretionary power without drawing the independent conclusion, and the examination of the deviation or abuse of discretionary power shall be subject to the determination of mistake of facts and the violation of the principle of proportionality and equality.

[1] Article 56 (1) 2 of the National Land Planning and Utilization Act, Article 58 (1) 4 and (3) of the National Land Planning and Utilization Act, Article 56 (1) [Attached Table 1] of the Enforcement Decree of the National Land Planning and Utilization Act / [2] Article 27 of the Administrative Litigation Act /

[1] [2] Supreme Court Decision 98Du17593 delivered on February 9, 2001 (Gong2001Sang, 652) / [1] Supreme Court Decision 98Du8759 delivered on September 8, 1998 (Gong1998Ha, 2437) Supreme Court Decision 2002Du11905 Delivered on March 28, 2003 (Gong2003Du12837 delivered on March 25, 2004) (Gong2003Du7606 delivered on July 22, 2004)

Jung Construction Co., Ltd. (Attorney Shin Jong-sung, Counsel for defendant-appellant)

The head of Dong-gu Gwangju Metropolitan City (Attorney Kang Young-young, Counsel for defendant)

Gwangju High Court Decision 2003Nu2044 decided May 20, 2004

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

1. Summary of the judgment below

Based on the reasoning of the judgment of the court of first instance, the court below determined that the land in this case is a general residential area above the majority, the remaining green conservation area or a site without any need for conservation, and it is somewhat far away from the apartment in North Korea, which is likely to impair the natural environment, landscape, and view of surrounding areas. There is a highly gradient in the south of the site in this case, a detached house and apartment, etc., and the south side of the site in the second cycle, which is a three-lane road, and the two-lane 18 lines are adjacent to the west and the above 3rd 160 meters wide, and thus it is possible to install the entrance above to the above road, and that the above construction site in this case cannot be seen as being installed as a replacement of the building site in this case, even if the above road is somewhat frequent, but it is not easy to view that the building site in this case was established as a substitute road due to the size of the building in this case, etc., and it is not likely to cause a change in the form and quality of the building site in this case.

2. Judgment of the Supreme Court

Article 8 (1) 1 of the Building Act provides that a person who intends to construct a building within an urban area designated by the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”) shall obtain permission. Article 8 (4) of the Building Act provides that if the permitting authority intends to grant a building permit, the construction of a building in the site for which the purpose, size or form and size of the building is to be constructed shall be confirmed as meeting the provisions of Articles 54, 56 through 62, and 76 through 82 of the National Land Planning and Utilization Act. Article 56 (1) 2 of the National Land Planning Act, Article 51 subparagraph 3 of the Enforcement Decree of the National Land Planning and Utilization Act provides that a person who intends to do an act of changing the form and quality of the land (excluding an alteration of the form and quality of the land for farming) shall obtain permission, and Article 58 (1) 4 and (3) of the National Land Planning Act, Article 56 (1) [Attachment 1] (a) of the Enforcement Decree of the National Land Planning and Utilization Act shall not be changed to the form and quality of the land.

On the other hand, in cases where administrative acts are classified into binding acts and discretionary acts, the judicial review of the two parties shall be based on the principle of fact-finding and the interpretation and application of the relevant laws and regulations in the case of the former; the court shall draw up a certain conclusion through the interpretation and application of the relevant laws and regulations in the case of the former; then, in light of the conclusion, the legitimacy of the judgment made by the administrative agency shall be decided from the reader's position; however, in the latter case, in consideration of the possibility of public interest judgment based on the discretion of the administrative agency, the court shall only examine whether the pertinent acts are deviation or abuse of discretionary power without drawing the reader's own conclusion; and the examination of the deviation or abuse of discretionary power shall be subject to the determination of facts, violation of the principle of proportionality and equality (see Supreme Court Decision 98Du17593, Feb.

According to the facts established by the court of first instance as cited by the court below, the site of this case is located in 9,981 square meters adjacent to the 3rd line, which is one-lane 18,000, in a general residential area and a buffer zone of green conservation area, which is 40% of the green conservation area, and the site of this case is located in the 2nd floor, 4th underground floor, 1,87 square meters above, 2nd underground floor, 7th ground, 13,708 square meters above, and 1,000 square meters above the building site of this case, which is likely to be 1,000 square meters above the building site of this case, and the building site of this case is likely to be 1,000 square meters above the building site of this case, and it is likely to be 1,000 square meters above the building site of this case to be 1,000 square meters above the building site of this case, and the building site of this case is likely to be 15,0,04 square meters below the building site.

Examining the above circumstances in light of the legal principles as seen earlier, the site of this case is located in a buffer zone between a general residential area and a preserved green area, which is located in the 3th century 18 lines, adjacent to the access road to a general residential area and an unspecified mountain Do Do Do Do Do , and the use, size, etc. of the building constructed on the site of this case should be in harmony with the surrounding environment and landscape including the natural environment. However, in light of the change of the form and quality of this case promoted by the Plaintiff and the use, size, etc. of the building of this case, if the construction of the building is permitted on the site of this case, in light of the road conditions leading to the site of this case and traffic conditions, there is a great concern about causing traffic congestion or traffic problems such as traffic accidents. Accordingly, the rejection of the application for the building permit of this case cannot be deemed to have violated the discretionary authority, such as misconception of facts or violation of the principle of proportionality and equality.

Nevertheless, the court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on restrictions on permission for changing the form and quality, etc., which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)