New World Co., Ltd. (Law Firm Squa, Attorneys Lee Young-chul et al., Counsel for the defendant-appellant

Ycheon Market (Attorney Kim Yong-hwan, Counsel for defendant-appellant)

Gwangju District Court Decision 2009Guhap3286 Decided April 29, 2010

July 22, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim

The defendant's disposition of non-permission to file a building permit with the plaintiff on March 12, 2009 is revoked.

Purport of appeal

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

1. Issues and reasons of the instant case

The key issue of the instant case is: (a) whether the Defendant’s non-permission of the Plaintiff’s application for change of the purpose of use of the parking lot, other than the parking lot, is legitimate, based on the provision that “it is impossible for the Defendant to use the attached parking lot for any other purpose until the main facilities are extinguished” under Article 13(2) of the YA, and (b) whether the Plaintiff’s application for permission for change of use of the parking lot, other than the parking lot, is legitimate; and (c) whether the Defendant’s application for permission for the

① On the issue, the first instance court determined that the instant disposition based on the Municipal Ordinance on Parking Lots was unlawful on the ground that it is reasonable for the Defendant to permit the alteration of the use of parking lots other than parking lots for the part exceeding the installation standards for annexed parking lots under Article 12(1)3 of the Enforcement Decree of the Parking Lot Act, on the ground that Article 13(2) of the Enforcement Decree of the Parking Lot Act limits the exercise of property rights on the alteration of the use of annexed parking lots by the owners, etc. of annexed parking lots under the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1) of the Enforcement Decree of the Parking Lot Act.

In addition, the first instance court determined that the instant disposition was unlawful on the grounds that there is no evidence to support the possibility that the surrounding traffic condition may deepen due to the construction of the gas station in this case, and that it is difficult to deem that the traffic condition constitutes the grounds for restriction on the building permit under the relevant laws and regulations, or that there is no need for a significant public interest interest to deny the application for the building permit differently.

This Court is justified in the first instance judgment, considering the arguments and reasons supplemented by the Defendant in this Court and considering the newly presented evidence.

Therefore, the reasoning of the judgment of this court is as follows: (a) evidence submitted by the defendant in this court, which is insufficient to recognize that the construction of the gas station in this case deepens surrounding traffic condition due to the construction of the gas station in this case; (b) evidence Nos. 1 through 5, Eul No. 6-1, 2, Eul No. 7, Eul No. 8-1 through 5, and Eul No. 9 are the same as the entry of the reasoning of the judgment of the court of first instance, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Conclusion

Therefore, the judgment of the first instance, which is accepted by the plaintiff, is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Donsung (Presiding Judge) Notarial decoration