[1] Legislative intent of Article 19 of the Addenda to the National Land Planning and Utilization Act

[2] The case holding that where a project approval is already obtained without legal fiction of a construction permission, it shall be included in the case of "in the process of applying for project approval, etc." under Article 19 of the Addenda of the National Land Planning and Utilization Act

[1] Article 19 of the Addenda of the National Land Planning and Utilization Act (amended by Act No. 6655, Feb. 4, 2002; hereinafter “National Land Planning Act”) provides that “The restriction on the use, type and scale, etc. of buildings and other facilities, and the building-to-land ratio and floor area ratio of the previous Act on the Utilization, Management, Urban Planning and Utilization, and Building Act shall be governed by the previous Act on the Utilization, Management, and Urban Planning, and Building Act, notwithstanding the provisions of Articles 76 through 78, shall be applicable to the previous Act on the Utilization, Management, and Utilization, etc. of National Land at the time of the enforcement of this Act, and the previous Act on the Management, Utilization, Report of Use, and Approval of Projects before the enforcement of the National Land Planning and Utilization Act, and even if the previous provisions related to the use, size, etc. of buildings related to the application are modified, the purpose of this Act is to protect property rights or trust in the enactment of the National Land Planning Act.

[2] The case holding that the "project approval" related to the use of national land includes a case where a project approval for which no building permission is deemed granted is deemed granted based on the project approval, and there are many permits and approvals deemed granted according to the project approval, but only permission for construction is deemed not deemed granted, on the ground that even if a person applies for a project approval before the enforcement of the National Land Planning and Utilization Act, it is not different from the former project approval in that it trusted the existence of the existing construction-related Acts and subordinate statutes and planned a project in accordance with the provisions and applied for a project approval, and that it is not different from the former project approval.

[1] Article 19 of the Addenda to the National Land Planning and Utilization Act ( February 4, 2002) / [2] Article 19 of the Addenda to the National Land Planning and Utilization Act ( February 4, 2002)

Busan Development Co., Ltd. (Attorney Or-sik et al., Counsel for the defendant-appellant)

[Defendant-Appellee] The Head of Si/Gun (Attorney Song-il, Counsel for defendant-appellee)

Seoul High Court Decision 2004Nu13945 delivered on July 20, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Article 19 of the Addenda to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) of February 4, 2002 provides, “The restriction on the use, type and size, etc. of buildings and other facilities, and building-to-land ratio and floor area ratio shall be governed by the former Act on the Utilization, Management, Urban Planning, or Building Act, notwithstanding the provisions of Articles 76 through 78 of the Act on the Utilization, Management, and Utilization of the National Land Planning and Utilization, which are replaced by or amended by the enactment of the National Land Planning and Utilization Act (hereinafter “former Act”) or after examining whether the provision is appropriate or not, the purpose of this Act is to protect property rights or property rights by enacting the former Act on the Utilization, Management, Urban Planning, or Building Act of the National Land Planning and Utilization, even if the previous provisions related to the use, size, etc. of the building and building related to the application are modified by the Act on the Utilization, Utilization, and Approval of the National Land Planning and Utilization, and the previous provisions related to the construction of the National Land Planning Act.”

On the other hand, the "project approval" related to the use of national land is deemed to be based on the project approval. The restriction on the use, type, size, etc. of buildings and other facilities, building-to-land ratio, and floor area ratio of a building for the project approval, such as the project approval of this case, shall undergo an examination as to whether the project approval conforms to the provisions of construction-related Acts and subordinate statutes, and as a result, the building permission shall not be deemed to be deemed to be legal, although various permissions and approvals are deemed granted according to the project approval. Thus, even in the case of an application for a project approval before the enforcement of the above Act, it is not different from the former project approval in that it trusts the existence of the existing construction-related Acts and subordinate statutes and plans for a project with many costs and applies for a project approval. Therefore, the project approval of Article 19 of the above Addenda shall be deemed to include the same type of project approval. In this case, it shall be interpreted

The court below held that a building permit for a building in this case for a tourist accommodation business project shall be applied after the enforcement date of the National Land Planning Act with respect to the case where the plaintiff was approved by the head of Incheon Metropolitan City prior to the enforcement date of the National Land Planning Act, but the building permit for the above approved project shall be applied for after the enforcement date of the National Land Planning Act, and even if the approval for a tourist accommodation business plan under the Tourism Promotion Act is not deemed a building permit, it shall be determined pursuant to the provisions of the previous construction-related Acts and subordinate statutes in accordance with the above supplementary provisions. In light of the above legal principles, the judgment of the court below is just and it cannot be said that there were errors by misapprehending the legal principles on the approval for a tourist accommodation business plan and building permit or the interpretation

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)