[1] In a case where a law was wholly amended, whether the transitional provision of the Addenda to the previous law is invalidated in addition to the main text of the previous law and the Addenda provision (affirmative in principle) / Where there is a “special circumstance” that does not lose its effect exceptionally, and the method of determining whether there exists a “special circumstance” in this case

[2] Whether there is an exceptional “special circumstance” to be deemed to be null and void for the enforcement of the former Building Act (wholly amended by Act No. 4381, May 31, 1991)(affirmative)

[3] Whether a person holding a building permit may refuse to accept a building report in a case where the building report is not subject to an explicit restriction under the related laws, such as the Building Act, but it is necessary for the significant public interest to not allow construction (affirmative)

[4] The case holding that in a case where Gap filed a lawsuit seeking revocation of a disposition on the ground that "A's construction plan was in violation of Article 46 (Designation of Building Line) of the Building Act, although the head of the Gu filed a lawsuit claiming revocation of the disposition on the ground that "A's construction plan was in violation of Article 46 (Designation of Building Line)" in fact on the ground that the above road is not a road under the Building Act, and the court of first instance filed a judgment accepting Gap's claim on the ground that "the above road was actually used as a passage of neighboring residents," and the head of the Gu filed an appeal and added the claim that "the above road was used as a passage of neighboring residents, and permission of construction is in violation of the public interest demand because neighboring land is a dead site for new construction of a building, the grounds added by the head of the Gu in the original judgment are identical with the grounds and basic facts of the original disposition, and there is room to deem the above disposition as legitimate."

[1] Article 2 subparag. 15 of the former Building Act (amended by Act No. 2188 of Jan. 1, 1970) (see current Article 2(1)11), Article 2 subparag. 15 of the former Building Act (amended by Act No. 3073 of Dec. 31, 197) (see current Article 2(1)11), Article 2 subparag. 15 of the former Building Act (amended by Act No. 3073 of Dec. 31, 197), Article 2 subparag. 11 of the former Building Act (amended by Act No. 4381 of Aug. 5, 1993) / [2] Article 2 subparag. 15 of the former Building Act (amended by Act No. 2188 of Jan. 1, 1970) (see current Article 2(1)11 of the former Building Act), Article 13 subparag. 15 of the former Building Act (amended by Act No. 153197 of Dec. 13, 19719 of the former Building Act)

[1] [2] [3] Supreme Court Decision 2011Du27322 Decided March 15, 2012 / [1] [2] Supreme Court Decision 201Du815 Decided January 27, 2012 / [1] Supreme Court Decision 2006Du19419 Decided November 27, 2008 (Gong2008Ha, 1808) / [3] Supreme Court Decision 2014Du15504 Decided September 15, 2015

Plaintiff (Law Firm Lee & Lee, Attorneys Kim Won-won et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Attorney Cho Sung-sung, Counsel for defendant-appellant)

Seoul High Court Decision 2018Nu32233 decided May 10, 2018

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

The grounds of appeal are examined.

1. Whether the instant road falls under the category of roads under the Building Act

A. Article 2 subparag. 15 of the Building Act (amended by Act No. 2852 of Dec. 31, 1975) provides that “road” means a road with a width of at least four meters which has been at least four meters which has been publicly announced pursuant to the provisions of the Urban Planning Act, the Road Act, the Private Road Act, or other relevant Acts and subordinate statutes, or a road with a location designated by the head of a Si/Gun at the time of building permission, and Article 2 subparag. 15 of the Addenda of the Building Act (hereinafter “former Addenda No. 2”) provides that “A road under the previous provisions at the time of entry into force of this Act, which does not meet the provisions of Article 2 subparag. 15 of the Building Act, shall be deemed a road, notwithstanding the provisions of the same Act, and Article 2 subparag. 15 of the Building Act (amended by Act No. 1942 of Mar. 30, 196) provides that “A road with a width of less than 14 meters and less than 4 meters is already designated by the head of a Si/Gun.

In the event that the Act is wholly amended, as a matter of principle, the provisions of the main sentence of the previous Act and the provisions of the Addenda shall be deemed to be null and void as well as all of the provisions of the previous Act, so the transitional provisions of the previous Act shall be deemed null and void, and in exceptional circumstances, the validity thereof shall not be null and void. The term “special circumstance” referred to in this context includes not only the case where the entire amended Act has a separate provision that the transitional provisions of the previous Act shall continue to apply with respect to the transitional provisions of the previous Act, but also the case where there are exceptional circumstances where the former transitional provisions shall continue to apply with respect to the transitional provisions of the previous Act without invalidation, even if there are no such provision. In such cases, whether there is “special circumstance” shall be determined individually and specifically by comprehensively taking into account the legislative background and purport of the previous transitional provisions, the legislative purport and overall structure of the entire amended Act, whether there

Based on the above legal principles, the provisions of the Building Act concerning roads are examined in light of the above legal principles: (a) although the Building Act was wholly amended by Act No. 4381 on May 31, 1991, which did not stipulate the transitional provisions such as Paragraph (2) of the previous Addenda, it reflects the situation where most of the roads at the time are designated as a road by the head of a Si/Gun, etc., and it is necessary to maintain the transitional provisions such as Paragraph (2) of the previous Addenda; (b) it appears that the actual road, which has already become a road under the Building Act, is not to be changed again into a road under the Building Act that is not a road under the Building Act; and (c) if paragraph (2) of the previous Addenda, it is deemed that the actual road, which has already become a road under the Building Act, has a legal gap in relation to the road, and in particular, there is a problem in protecting the trust and legal stability of the owners of neighboring land and buildings using the road as a passage, it still does not exist to be deemed to be deemed null and void.

B. The lower court determined that even though the ○○○○ △△△ road and the ○○ ○○○○○○○○△△△△, it constitutes “de facto road” used as a passage of neighboring residents since 1975, it did not constitute “road” under the Building Act, on or before February 1, 1976, which was the enforcement date of the Building Act amended by Act No. 2852, Dec. 31, 1975, or there is no evidence to support that the head of a Si/Gun had designated its location.

This judgment below is in accordance with the legal principles as seen earlier, and it did not err by misapprehending the legal principles on roads under the Building Act, thereby adversely affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 1

A. (1) Even in cases where a building report is not contrary to the explicit restrictions prescribed by relevant statutes, such as the Building Act, the National Land Planning and Utilization Act, and other relevant statutes, a person holding a building permit may refuse to accept the building report if it is necessary for important public interests to not allow construction (see, e.g., Supreme Court Decisions 2011Du27322, Mar. 15, 201; 2014Du15504, Sept. 15, 2015).

(2) In an appeal seeking the revocation of an administrative disposition, a disposition agency is not allowed to assert as a ground for disposition on the grounds of a separate fact, not the grounds for the initial disposition. However, other grounds may be added or modified to the extent that it is deemed identical to the grounds for the initial disposition and basic facts. The existence of the factual identity in this context is determined depending on whether the social factual relations, which form the basis for the disposition, are identical in basic terms, based on the specific facts prior to the legal evaluation (see Supreme Court Decision 2000Du8684, Sept. 28, 2001, etc.).

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) The land owned by the same person around 1965, which was owned by the Gangseo-gu Seoul Metropolitan Government (number 1 omitted), Gangnam-gu (number 2 omitted), △△△△△, (number 3 omitted), (number 4 omitted), (number 5 omitted), (number 6 omitted), (number 7 omitted), and (number 8 omitted) was owned by the same person. In the process of constructing each building on each land, part of the land (number 2 omitted) and (number 3 omitted), and (number 3 omitted, part of the land (number 3 omitted), and (number 5 omitted), part of the land (number 5 omitted), and (number 6 omitted) part of the land (number 6 omitted) were constructed to have access to each building as a public road by neighboring residents (hereinafter “road in fact”).

(2) On November 10, 204, the Plaintiff, despite being aware of such utilization situation, purchased the land and the existing buildings on that ground (number 3 omitted) land and the previous buildings on that ground. On September 9, 2016, the Plaintiff filed an application for a construction permit with the purport that the existing buildings were demolished and the new buildings were built, the size of which was expanded.

(3) In a case where the housing units are constructed on the land in accordance with the Plaintiff’s construction plan, the actual width of the road in this case is narrow, and the road in this case is in fact narrow (number 5 omitted), △△dong (number 6 omitted), (number 7 omitted), (number 8 omitted), (number 9 omitted), and (number 9 omitted), the land in this case becomes a road passage to which the public road is allowed to enter.

(4) On October 7, 2016, the Defendant rendered a provisional disposition against the Plaintiff on the ground that “the Plaintiff’s construction plan was in violation of Article 46 (Designation of Building Lines) of the Building Act” on the premise that the instant road constitutes the road under the Building Act (hereinafter “instant disposition”).

(5) The first instance court rendered a judgment citing the Plaintiff’s claim on the ground that the instant road does not fall under the road under the Building Act. The Defendant appealed and added the claim that “The instant road has been used as the passage of neighboring residents from 1965 to 1965. If construction is conducted according to the Plaintiff’s construction plan, permitting construction is contrary to the demand of the public interest, and the Plaintiff’s construction of the housing should not be permitted.”

C. Examining the above facts in light of the legal principles as seen earlier, the following determination is possible.

(1) The original grounds for the disposition of this case and the grounds for disposition additionally asserted by the defendant in the lawsuit of this case are somewhat different from the evaluation of the legal nature of the road of this case, and since the actual use status of the road of this case is "road", it is not permissible to construct a building, and therefore, the identity of basic facts is recognized.

(2) In fact, it is recognized that the construction of the instant road requires significant public interest to prevent neighboring residents from passing through the road. Since such public interest request is much more important than the Plaintiff’s exercise of property right, there is room to deem that the Defendant’s additional disposition in the lower court is justifiable and the instant disposition is legitimate.

D. Nevertheless, the lower court did not render a judgment as to the legitimacy of the additional disposition, solely on the grounds that the Defendant’s additional disposition in the lower court is a disposition for which the Defendant may independently assert the grounds for disposition, and on the grounds that it is deemed that it is substantially identical to the initial reason for disposition. In so determining, the lower court erred by misapprehending the legal doctrine on the permissible standards for addition and alteration of the grounds for disposition and the necessity of important public interest, thereby failing to exhaust all necessary deliberations,

3. Conclusion

Therefore, 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 Kim Jong-hee (Presiding Justice)