[1] Whether the implementation or realization of the results of the traffic impact assessment and the traffic impact assessment for the business or facilities subject to the traffic impact assessment should be examined in granting the building permit for the pertinent facilities (affirmative) and the point of time of determination

[2] In a case where a building permit is returned on the ground that it is not implemented or unlikely to be implemented as a result of the traffic impact assessment review, whether Article 18(2) of the former Urban Traffic Improvement Promotion Act imposes a duty on the applicant by allowing the competent authority to present detailed methods of practice as to the details of the results of the traffic impact assessment (negative)

[3] The contents and limits of the court's exercise of the right to explanation

[1] In full view of Articles 13, 16, and 18 of the former Urban Traffic Improvement Promotion Act (amended by Act No. 6095 of Dec. 31, 1999), Articles 13, 16, and 16 of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act (amended by Presidential Decree No. 1715 of Jan. 29, 2001), Article 8 (1) and (4) of the former Building Act (amended by Act No. 6370 of Jan. 16, 2001), Article 8 (4) 16 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17028 of Dec. 27, 200), the issue of whether it is possible to implement or realize the construction permission as a result of traffic impact assessment or traffic impact assessment shall be determined as a matter of course at the time of the implementation of the construction permission.

[2] In light of the language and purport of Article 18(2) of the former Urban Traffic Improvement Promotion Act (amended by Act No. 6095 of Dec. 31, 1999), where a building permit is rejected on the ground that the above provision is not implemented or unlikely to be implemented as a result of a traffic impact assessment and a facility subject to a traffic impact assessment, it cannot be deemed that a provision imposing an obligation on the applicant to allow the applicant to present a detailed method of practice about the contents of the traffic impact assessment result, or to adjust or supplement a plan for business or facility, or to order the implementation of a traffic impact assessment measure.

[3] The court's exercise of the right to explanation is to point out the contradictions of the assertion, incomplete or unclear parts, and give the parties an opportunity to correct or supplement them, and urge them to submit evidence of the facts of dispute. The acts of soliciting submission by suggesting the requirements of legal effect or the methods of attack and defense which the parties did not assert, are in violation of the principle of pleading, and it goes beyond the limit of the exercise of the right to explanation.

[1] Article 8(1) and (4) of the former Building Act (amended by Act No. 6370 of January 16, 2001), Article 8(4)16 of the former Building Act (amended by Presidential Decree No. 17028 of December 27, 200), Article 18(2) of the former Urban Traffic Improvement Promotion Act (amended by Act No. 6095 of December 31, 199), Article 18(2) of the former Urban Traffic Improvement Promotion Act / [2] Article 8(2) of the former Urban Traffic Improvement Promotion Act (amended by Act No. 6095 of December 31, 199) / [3] Article 8(2) of the Administrative Litigation Act, Article 136 of the Civil Procedure Act

[1] Supreme Court Decision 95Nu10341 decided Oct. 29, 1996 (Gong1996Ha, 3586) / [3] Supreme Court Decision 98Da61463 decided Apr. 23, 199 (Gong1999Sang, 1014), Supreme Court Decision 98Da13754, 13761 decided Jul. 9, 199 (Gong199Ha, 1579Ha, 1579), Supreme Court Decision 98Du2768 decided Mar. 23, 200 (Gong200Sang, 1067), Supreme Court Decision 200Da22362 decided Aug. 22, 200 (Gong2000Ha, 2010Ha, 204384 decided Apr. 23, 201)

Plaintiff (Attorney Lee In-hwan et al., Counsel for the plaintiff-appellant)

Racing Market (Attorney Shin Sung-sung, Counsel for defendant-appellant)

Daegu High Court Decision 2002Nu50 delivered on July 19, 2002

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

The grounds of appeal are examined.

1. Articles 13, 16, and 18 of the former Urban Traffic Improvement Promotion Act (amended by Act No. 6095 of Dec. 31, 1999 and enforced January 1, 2001; hereinafter the same shall apply), 13, and 16 of the former Enforcement Decree of the Urban Traffic Improvement Promotion Act (amended by Presidential Decree No. 1715 of Jan. 29, 2001; hereinafter the same shall apply), Article 8 (1) and (4) of the former Building Act (amended by Act No. 6370 of Jan. 16, 200; hereinafter the same shall apply), Article 8 (4) 16 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17028 of Dec. 27, 2001), and whether it is possible to carry out a traffic impact assessment or other facilities as a matter of course, shall be determined as to whether it is possible to carry out a traffic impact assessment or other facilities at least 91.

According to the records, on June 26, 200, the Defendant: (a) applied for a new traffic impact assessment by the Plaintiff on the 1st five-meter wide width of the instant land; (b) the Plaintiff did not submit an application for a new traffic impact assessment by the 1st five-meter wide width of the instant land; and (c) the Plaintiff’s application for a new traffic impact assessment by the 1st five-meter wide width of the instant land to the 1st five-meter wide width of the instant land; and (d) the Plaintiff’s application for a new traffic impact assessment by the 1st five-meter wide of the instant land to the 1st five-meter wide of the instant land; and (e) the Plaintiff’s application for a new traffic impact assessment by the 1st five-meter wide of the instant land to the 1st five-meter wide of the instant land; and (e) the Plaintiff’s application for a new traffic impact assessment by the 1st five-meter wide of the instant land adjoining to the 1st five-meter wide of the road.

Although the reasoning of the judgment of the court below is partly inappropriate, the decision of the court below that the disposition in this case is legitimate on the ground that the plaintiff is not likely to realize the results of the traffic impact assessment is just, and there is no error of law that affected the conclusion of the judgment by misunderstanding of facts, inconsistent reasoning or determination, misunderstanding of legal principles as to Article 18 (2) of the Urban

The ground of appeal concerning this cannot be accepted.

2. A. In light of the language and purport of Article 18(2) of the former Urban Traffic Improvement Promotion Act, in rejecting a construction permit on the grounds that the said provision is not or is unlikely to be implemented as a result of the traffic impact assessment and the facilities subject to a deliberation, the said provision cannot be deemed to be a provision that allows the applicant to present a detailed method of practice regarding the details of the project or facilities as a result of the traffic impact assessment or to adjust or supplement the plan of the project or facilities or impose an obligation to order the implementation of the traffic improvement measures.

The argument in the grounds of appeal as to this cannot be accepted.

B. The court's exercise of the right to ask for a vindication is to point out the contradictions of the assertion, incomplete or unclear parts, and give the parties an opportunity to correct or supplement them, and urge them to submit evidence of the facts of dispute. The acts of soliciting submission by suggesting the requirements of legal effect or the means of attack and defense which the parties did not assert, are in violation of the principle of pleading and goes beyond the limit of the exercise of the right to ask for a vindication (see Supreme Court Decision 98Du2768 delivered on March 23, 200).

According to the records, in this case where the plaintiff argues the illegality of the disposition of this case on the ground that the plaintiff is feasible as a result of the traffic impact assessment deliberation, it cannot be deemed that there is contradictory or incomplete or unclear points in the plaintiff's argument, and it cannot be deemed that the plaintiff did not submit evidence of the dispute. Thus, the court below did not err by failing to exhaust all necessary deliberations due to the violation of the duty

The argument in the grounds of appeal as to this cannot be accepted.

3. The court below rejected the plaintiff's assertion that the disposition of this case on the ground that the traffic impact assessment result was unlawful, after considering the adopted evidence, was based on the facts as stated in the judgment, and the above deliberation result was not found to be erroneous on the ground that the above deliberation result was not feasible, since the access road of this case does not need a de facto installation of a farming machine passage, and a sufficient width of a vehicle can be installed if the access road of this case is not installed. The above deliberation result was erroneous on the condition of installation of a farming machine passage, and since the charging station of this case reaches 5.2 meters wide due to the access road of not less than 4m of a road required under the Building Act.

Examining the reasoning of the judgment below in light of the records, we affirm this fact-finding and judgment of the court below as just, and there is no error of law as to mistake of facts and misapprehension of legal principles as to the former Urban Traffic Improvement Promotion Act as otherwise alleged in the ground of

In addition, as long as the above determination by the court below is just, the part that the court below's decision that the ground for appeal against the disposition in this case cannot be asserted even if there is a defect in the result of the traffic impact assessment examination is merely an additional determination, and it cannot affect the conclusion of the judgment. Thus, the ground for appeal as to the constructive judgment cannot be accepted.

4. Therefore, the appeal shall be dismissed, and the costs of appeal shall be borne by the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Hyun-chul (Presiding Justice)