Whether the establishment of a factory in a factory facility area is allowed in an industrial complex located within the limited improvement area prescribed by the former Industrial Placement and Factory Construction Act (affirmative)

Although each subparagraph of Article 27 of the former Enforcement Decree of the Industrial Placement and Factory Construction Act (amended by Presidential Decree No. 14315, Jul. 4, 1994) did not explicitly allow the establishment of a factory in an industrial complex, it is reasonable to deem that there was no need to have a separate provision allowing the establishment of a factory in an industrial complex because it has the provision of subparagraph 2 allowing the establishment of a factory in an industrial complex among industrial areas, so it is reasonable to deem that there was no additional provision allowing the establishment of a factory in an industrial complex under separate provision allowing the establishment of a factory in an industrial complex. Therefore, such interpretation should be construed as allowing the establishment of a factory in an industrial complex among industrial complexes in an industrial complex improvement area under the proviso of Article 20 (1) of the former Industrial Placement and Factory Construction Act (amended by Presidential Decree No. 4720, Jan. 7,

Article 2 subparag. 6 and Article 20(1) of the former Industrial Placement and Factory Construction Act (amended by Act No. 4720 of Jan. 7, 1994); Article 27 subparag. 2 of the former Enforcement Decree of the Industrial Placement and Factory Construction Act (amended by Presidential Decree No. 14315 of Jul. 4, 1994)

Young Water Industry Co., Ltd. (Attorney Jeong Jong-sung et al., Counsel for defendant-appellee)

Sungnam Industrial Complex Management Corporation (Law Firm Sejong, Attorneys Osung-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 96Na22923 delivered on July 10, 1997

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

The grounds of appeal are examined.

1. The lower court: (a) determined that the Defendant was a management agency prescribed by Article 30 of the Industrial Placement and Factory Construction Act, which performs the business of managing the above 2-dong local industrial complex located in Seongbuk-gu, Sung-gu; (b) the Plaintiff was awarded a successful bid for manufacturing P.V.C. factories owned by the non-party 2 company located in Sungnam-gu Industrial Complex; (c) on April 25, 1993, the Plaintiff and the Defendant entered into a contract for the alteration of the type of factories under Article 40 of the former Enforcement Decree of the Act, 6,617.9 square meters; (d) the land size of the factory was 3,389.16 square meters; and (e) the Plaintiff entered into an occupancy contract for the alteration of the type of factories under Article 40 of the former Enforcement Decree of the Act, which is located in 200 square meters; and (e) the Defendant did not consent to the alteration of the type of factories under Article 38(2) of the Act.

2. However, examining the provisions of the laws and enforcement decree which were in force at the time of the instant case, it cannot be deemed that the establishment of a manufacturing factory of asphalt concrete is prohibited in an industrial complex within the limited rearrangement area.

A. The main text of Article 20(1) of the former Act prohibits, in principle, the construction, extension, and relocation of a factory above a certain size in a restricted improvement zone, but it is not applicable to cases prescribed by the Presidential Decree. Article 27 of the former Enforcement Decree, which provides the exception, provides that the act permitted in a transfer promotion zone as prescribed by Article 26 subparag. 1 through 8 of the former Enforcement Decree, shall be permitted in both restricted improvement zones. However, according to Article 26 subparag. 1 through 8 of the former Enforcement Decree of the former Act, it is only a provision that permits the extension of a factory in an industrial complex located in a transfer promotion zone ( subparag. 3), and there is no provision that permits the construction of a new factory, and there is no provision that permits the construction of a factory in an industrial complex located in a restricted improvement zone as well as the rest of Article 27 of the former Enforcement Decree of the former Enforcement Decree of the Act.

B. However, Article 27 subparagraph 2 of the Enforcement Decree of the Urban Planning Act provides that the new construction or extension of a factory in a facility site zone among the industrial areas under the provisions of Article 17 of the Urban Planning Act shall be permitted entirely within the restricted area without limiting the area, size and type of business. Article 26 of the Enforcement Decree of the amended as of July 4, 1994 provides that the acts allowed in an industrial complex within the restricted area (the term "restricted maintenance area" has lost and the term "restricted storage area" has been used, which is naturally allowed in an industrial complex within the same area and it is not allowed in an industrial complex other than that allowed in an industrial complex, for example, new construction or extension of a factory in an industrial complex shall be allowed separately for the purpose of developing and improving the new industrial complex (see Article 26 [Attachment 1] of the Enforcement Decree, and the relocation promotion area and new construction of a new industrial complex shall be allowed within the restricted area without considering the special characteristics of the industrial complex development and improvement area of the new industrial complex (the construction and improvement area of the new industrial complex shall be excluded from the industrial complex).

In this interpretation, the establishment of a factory in a factory facility zone in a limited rearrangement zone shall be permitted without restriction pursuant to the proviso of Article 20 (1) of the former Act and Article 27 of the Enforcement Decree of the former Enforcement Decree, and the establishment of a new factory shall be permitted without restriction pursuant to the provisions of Article 33 of the former Act. The reason is that the management master plan for the Seongbuk-nam industrial complex, which was approved by the Minister of Trade, Industry and Energy, is not limited to the types of business to move into the factory facility zone

B. Even if the above interpretation does not follow the above statutory construction, if the location of the land for factory for which the plaintiff entered into a contract for occupancy change is located in the facility site district within the industrial area under the urban planning in Sungnam city, it is possible to build a factory without any restriction on the type of business as Article 27 subparagraph 2 of the former Enforcement Decree which permits the new construction of a factory in the limited rearrangement zone is applied, and unless there are special circumstances, it is considered that the land for factory in Sungnam city should be located within the industrial area under the urban planning in Sungnam city city. Therefore, it cannot be concluded that the plaintiff's new construction of a factory is prohibited without examining whether the land for factory in Sungnam city city is located within the industrial area under the

C. However, Article 2 subparag. 8 of the former Act (amended by Act No. 13249 of Jan. 7, 1994) provides that a person who intends to operate a manufacturing business after moving in an industrial complex shall be a qualified person as prescribed by the Presidential Decree. Article 6 of the former Enforcement Decree (amended by Presidential Decree No. 13249 of Jul. 4, 1994) provides that one of the qualifications to move in an industrial complex shall be a factory of a type of business subject to the occupancy under the basic plan for industrial complex management of the industrial complex in question. Article 43(2) of the former Enforcement Decree provides that an industrial complex management agency shall place a type of business according to the plan for placement by type of business as provided by the basic plan for industrial complex management under the provisions of Article 33(1) of the Act, and that the person who has lawfully acquired the industrial complex site, factory, or other facilities intends to move in the industrial complex after changing the type of business of the factory, and only if it is judged that there is a conflict with the above basic plan for industrial complex management.

3. The court below held that the new construction of a factory in the restricted improvement area is permitted by the former Act, on the premise that the change of the business type of the plaintiff actually constitutes the new construction of a factory as prescribed by the former Act. However, since Article 20 of the Act was amended on January 7, 1994, the change of the business type began to be regulated on the same line as the new construction, extension, and relocation of the factory, before that, Article 16(1) of the former Act and Article 11 subparag. 3 of the Enforcement Rule of the former Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 788 of Nov. 21, 1992) and Article 11 subparag. 3 of the Enforcement Rule of the former Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 43 of Jul. 30, 1994), it is questionable that the new construction of a factory constitutes a registration of a factory under the former Act (amended by Act No. 4720 of Jan. 7, 1994). 30).

4. Thus, the judgment of the court below that the contract for the alteration of occupancy in this case was concluded in violation of the old law and that the termination of the contract by the defendant is valid on this basis is erroneous in the misapprehension of the old law and the decision of the court below is erroneous in failing to exhaust all necessary deliberations, and this error affected the conclusion of the judgment. Thus, there

5. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)