[1] In a case where Party A’s law stipulating matters concerning the principal authorization and permission provides for the legal fiction that the principal authorization and permission is obtained pursuant to Party B’s law, whether the principal authorization and permission is granted, and whether Party B’s law stipulating matters concerning the principal authorization and permission can be deemed as applicable to all the provisions of Party B’s law under the premise that Party B obtained authorization and permission (negative)

[2] The case holding that Article 83 (2) of the former Urban Planning Act does not apply to the attribution of public facilities even if new public facilities were installed upon obtaining a construction permit under Article 8 (4) of the former Building Act

[1] In a case where a law providing for matters concerning the principal authorization and permission provides for the legal fiction that the principal authorization and permission are obtained under the law of Eul, it shall be deemed that the principal authorization and permission exists under the law of Eul, and it shall not be applied to all the provisions of the law of Eul on the premise that the authorization and permission was obtained under the law of Eul, and it shall not be applied to all the provisions of the law of Eul on the premise that the authorization and permission was obtained under the law of Eul.

[2] The case holding that Article 8 (4) of the former Building Act (amended by Act No. 4919 of Jan. 5, 1995) only has the legal fiction of authorization that a construction permit shall be deemed to have been granted under Article 25 of the former Urban Planning Act (amended by Act No. 5898 of Feb. 8, 199), and that Article 83 (2) of the former Urban Planning Act concerning the attribution of public facilities newly installed under the former Building Act does not apply to the case where new public facilities are installed upon obtaining a construction permit under Article 8 (4) of the former Building Act, and that Article 83 (2) of the former Urban Planning Act does not apply to the attribution of such public facilities

[1] Article 8(4) of the former Building Act (amended by Act No. 4919 of Jan. 5, 1995), Articles 25 and 83(2) of the former Urban Planning Act (amended by Act No. 5898 of Feb. 8, 1999) / [2] Article 8(4) of the former Building Act (amended by Act No. 4919 of Jan. 5, 1995), Articles 25 and 83(2) of the former Urban Planning Act (amended by Act No. 5898 of Feb. 8, 199)

Sejong Enterprise Co., Ltd. (Attorneys Lee Hong-soo et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City Shipping Daegu (Attorney Park In-ok, Counsel for the plaintiff-appellant)

Busan High Court Decision 2003Na11066 delivered on March 31, 2004

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. (a) Comprehensively considering the adopted evidence, the lower court determined that the Plaintiff’s construction permit was applied to the Plaintiff on February 8, 1996 under the condition that it should comply with the overall deliberation and resolution by the Urban Traffic Improvement Promotion Act (amended by Act No. 5113, Dec. 29, 1995; hereinafter the same shall apply to the Plaintiff’s construction permit under the former Urban Planning Act; hereinafter the same shall apply to the Plaintiff’s new construction permit under the provisions of Article 2 of the former Urban Traffic Improvement Promotion Act (amended by Act No. 5113, Dec. 14, 1995; hereinafter the same shall apply) and the land category of the Plaintiff’s new construction permit under the provisions of the former Urban Planning Act (amended by Act No. 980, Feb. 9, 196; hereinafter the same shall apply to the Plaintiff’s new construction permit under the provisions of the former Urban Planning Act, including the extension, packing, and rearrangement of the existing 10 meters of the construction permit to the above site.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

In a case where any Act that provides for matters concerning the principal authorization and permission provides for the legal fiction that the principal authorization and permission has been obtained pursuant to other Acts, it shall be deemed that the principal authorization and permission has been obtained pursuant to other Acts, and it shall not apply to all the provisions of other Acts premised on the authorization and permission obtained pursuant to other Acts. In addition, Article 8(4) of the former Building Act only provides for the legal fiction of authorization that if a construction permission has been obtained, it shall be deemed that an implementation plan for an urban planning project has been approved pursuant to Article 25 of the former Urban Planning Act. Article 83(2) of the former Building Act does not apply mutatis mutandis to the attribution of public facilities newly installed under the former Building Act. Thus, it is reasonable to deem that Article 83(4) of the former Urban Planning Act does not apply to the attribution of public facilities where a new public facilities has been installed after obtaining a construction permission pursuant to Article 8(4) of the former Building Act.

Nevertheless, the court below held that the land ownership of this case belongs to the defendant, considering that Article 83(2) of the former Urban Planning Act applies to the case where a building permit is granted under Article 8(4) of the former Building Act, in addition to the presumption that the authorization of an implementation plan for an urban planning project under Article 25 of the former Urban Planning Act is granted, the court below erred by misapprehending the construction permit under Article 8(4) of the former Building Act and the legal principles on gratuitous reversion of public facilities newly installed under Article 83(2) of the former Urban Planning Act.

2. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Byun Jae-chul (Presiding Justice)