[1] In a case where a construction permit or a completion inspection is conducted on a site where a dead-endlley road is the sole passage, whether it may be presumed that the designation of the site as a road for the above alley road was made (negative)

[2] Whether a road under the Building Act may be deemed to have been established in a case where it has been used for a long period of time for a long term for the passage of neighboring residents (negative with qualification)

[1] A road subject to limitations on construction by building lines under Articles 36 and 37 of the Building Act refers only to a road defined in Article 2 subparag. 11 of the Building Act, i.e., a road for which a public notice of new construction or alteration is given under the related Acts and subordinate statutes, or a road for which the head of a Si/Gun/Gu designates its location. If the location of a road is designated, the site owner of the road shall be subject to restrictions on land use under the Building Act. As such, the location of the road shall be designated clearly by specifying the section, extension, width, location, etc. of the road. Accordingly, even if a building permit, report, or inspection on completion of construction of the site for which another aggregate road is used as the only passing through the road, it cannot be presumed that there was a designation as a road for the said aggregate, on the ground that Article 33(1) of the Building Act provides that the site of the building should adjoin at least two meters.

[2] Even if it has been used for a long period of time for a long term, it cannot be said that a road under the Building Act has already been used as a passage of residents before February 1, 1976, the enforcement date of the amended Building Act (Act No. 2852 of Dec. 31, 1975), except for those deemed to be a road under Article 2 of the Addenda to the amended Act (Act No. 2852 of Feb. 1, 1975).

[1] Article 2 subparagraph 11 (b) of the Building Act, Article 33 (1), Article 36, and Article 37 of the Building Act / [2] Article 2 subparagraph 11 (b) of the Building Act, Article 2 subparagraph 2 of the Addenda to the former Building Act (amended by December 31, 1975)

[1] Supreme Court Decision 94Nu11552 delivered on March 14, 1995 (Gong1995Sang, 1638) / [2] Supreme Court Decision 89Nu7016 delivered on February 27, 1990 (Gong1990, 792) Supreme Court Decision 92Nu737 delivered on July 28, 1992 (Gong1992, 2681), Supreme Court Decision 93Nu20023 delivered on January 28, 1994 (Gong194Sang, 845)

Plaintiff

Head of Gwangjin-gu Seoul Metropolitan Government

Seoul High Court Decision 97Gu27208 delivered on June 25, 1998

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

We examine the grounds of appeal.

1. A road to which limitations on construction by building lines apply pursuant to Articles 36 and 37 of the Building Act refers to a road defined in Article 2 subparag. 11 of the Building Act, i.e., a road publicly notified for construction or alteration or a road to which the head of a Si/Gun/Gu designates its location pursuant to the relevant Acts and subordinate statutes. If the location of a road is designated, its owners are subject to restrictions on land use under the Building Act. Thus, the designation of a site should be clearly made by specifying the section, extension, width, and location of the road under the Building Act. Therefore, even if a building permit or report or inspection on completion of construction on a site with another runway as the sole passage, it cannot be presumed that Article 33(1) of the Building Act had been designated as a road with at least two meters prior to the enforcement date of the Building Act (see, e.g., Supreme Court Decision 200Nu19729, Mar. 14, 1995; 200Du197989, Apr. 17, 97.

2. According to the reasoning of the judgment below, part of the land owned by the plaintiff (location 1 omitted) in Gwangjin-gu, Seoul (hereinafter referred to as "the land in this case") was used for the same (location 2 omitted) land in the vicinity of 1.5 meters wide from the land (location 3 omitted) and the above (location 2 omitted) land and the above (location 3 omitted) land were constructed with another person's house on October 1, 1960, and the above (location 2 omitted) land was constructed for less than 37.62m of the above land and the construction site was constructed for less than 20m of the above building site or for 14.4m of the building to be extended on October 30, 192, and the construction site was constructed for less than 196m of the above building site to be constructed for less than 20m of the building site or for 19.2m of the building site to be constructed for less than 19m of the building site.

In addition, the content of the on-site investigation report and survey result at the time of receipt of the building permit for an adjacent building on the neighboring land, and the on-site reading status map in the first port in 1982 kept by Seoul Special Metropolitan City cannot serve as a basis for deeming the current status road as a road under the Building Act.

Therefore, there is no reason to conclude that the court below erred in the misapprehension of legal principles as to Article 2 subparagraph 11 (b) of the Building Act, Article 2 subparagraph 11 (b) of the Joseon City Planning Ordinance.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)