(a) Whether the construction or use of land designated as a military installations protection zone is prohibited without the consent of the military authorities;

(b) the case holding that a military authority cannot use the acquired land for its unique business because it does not consent to the construction;

A. According to Article 7 subparagraphs 3, 6, and 7 of the former Protection of Military Installations Act (amended by Act No. 4617 of Dec. 27, 1993), when the relevant administrative agency intends to permit the new construction or extension of houses and other building materials, the cutting of standing timber, etc. in a military installation protection zone, it shall be subject to prior consultation with the competent commander. In light of Article 10 (2) of the former Enforcement Decree of the Protection of Military Installations Act (amended by Presidential Decree No. 14329 of Jul. 20, 1994), the consultation refers to the consent. According to Article 7 (3) of the same Act, if the relevant administrative agency grants a building permit, etc. without complying with the terms and conditions of such consultation, it may request the relevant administrative agency to cancel such permission, and the administrative agency so requested shall comply with such request, land designated as a military installation protection zone shall be prohibited from construction or use unless the military authority gives consent.

B. The case holding that if a foundation filed an application for permission for damage to a forest on land designated as a military facility protection zone, but the military authority rejected the application for permission on the ground that it did not consent to the construction, and thereafter the application was rejected for the same reason, the foundation has already been acquired by the military authority prior to the acquisition, and the ground that the land was not used in its unique duties after the acquisition is the same as that of the military authority's non-approval, and the military authority can sufficiently resolve the grounds for non-approval before the acquisition, and that the military authority cannot use the land in its unique duties unless there are special circumstances such as the unforeseeable reason that the military authority did not consent to the construction on the ground that it did not consent to the construction on the ground that it did not consent to the construction.

A. Article 7 of the former Protection of Military Installations Act (amended by Act No. 4617 of Dec. 27, 1993); Article 10(2) and (3) of the former Enforcement Decree of the Protection of Military Installations Act (amended by Presidential Decree No. 14329 of Jul. 20, 1994) (see current Article 11(1) and (2))

[Plaintiff-Appellee] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Domin-young and 1 other, Counsel for plaintiff-appellee)

The Korea Broadcasting Development Institute, a foundation

Attorney Lee Young-young et al., Counsel for the defendant-appellant

Seoul High Court Decision 94Gu3164 delivered on August 31, 1994

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below judged that the plaintiff purchased the land of this case as a nonprofit foundation in order to establish the building, and although the land of this case was already constructed with the consent of the military authorities in the vicinity because it had already been aware of the circumstances requiring the consent of the military authorities in connection with the construction within the protection zone of military installations, it was believed that the consent of the military authorities could be obtained. In addition, while the plaintiff tried to obtain the consent of the military authorities in the process of filing an application for forest damage permission for construction before and after the acquisition, the above application for permission was returned by the refusal of the military authorities and eventually failed to reach the construction. Thus, even if the plaintiff failed to use the building for its proper purpose within one year from the date of acquisition, it is reasonable to deem that it constitutes a case where there was a justifiable reason.

2. According to the Protection of Military Installations Act (amended by Act No. 4617 of Dec. 27, 1993), when the relevant administrative agency intends to permit the new construction or extension of houses or other building objects, the cutting of standing timber, etc. in a military facility protection zone, it shall consult with the head of the competent unit in advance (Article 7 subparag. 3, 6, and 7) and Article 10(2) of the Enforcement Decree of the Military Protection Act (amended by Presidential Decree No. 14329 of Jul. 20, 1994). The consultation here refers to the consent. According to Article 7 subparag. 3 of the Protection of Military Installations Act (amended by Presidential Decree No. 14329 of Jul. 20, 1994), in a case where the relevant administrative agency did not undergo such consultation or did so without complying with the conditions of consultation, the administrative agency so requested shall be prohibited from construction or use of the land designated as a military facility protection zone unless the military authority gave consent (see Supreme Court Decision 98Nu 165, 19875, Dec. 1985, 1987. 197.

However, according to the facts found by the court below, the plaintiff filed an application for forest damage to the land of this case on or around December 10, 191, but the application for permission was rejected on or around March 9, 1992 on or around January 8, 1992 due to the military authority's rejection of the application for permission on the ground that it did not consent to the construction, and thereafter on August 14 of the same year, the application was rejected for the same reason. Thus, if there is a factual basis, the plaintiff acquired the land of this case with the knowledge that the military authority did not consent to the construction before the acquisition, and the reason that the land of this case was not used for its unique duties after the acquisition is the same as the military authority's side consent. Thus, it is possible for the military authority to fully resolve the reasons why it did not consent to the construction before the acquisition, and the military authority's rejection of the application by making efforts to solve it by the actual resolution, but it cannot be said that it did not use the land of this case due reason.

Nevertheless, without any deliberation as to this point, the court below recognized a justifiable ground solely on the ground that the military authority made an expression of intent to re-examine the construction design after the Plaintiff’s acquisition and made an application for re-deliberation, but also did not consent thereto. Therefore, the court below did not err by misapprehending the legal principles on justifiable grounds, or by failing to exhaust sufficient deliberation. The grounds for appeal pointing this out are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)