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(영문) 대법원 1998. 9. 8. 선고 98두8759 판결
[건축불허가처분취소][공1998.10.1.(67),2437]
Main Issues

[1] Criteria to distinguish between speed action and discretionary action

[2] Whether the establishment of a building permit standard within a development restriction zone is discretionary act (affirmative), and the method of interpreting and applying the criteria for the permit

[3] The case holding that a disposition of rejection of construction in accordance with Article 7 (2) of the Management Regulations for Development Restriction Zones and the Guidelines for Handling Permission for restaurant within the Development Restriction Zones for Ansan-si was lawful

Summary of Judgment

[1] Even if a certain administrative act is a binding act or a discretionary act, whether it is a discretionary act or a discretionary act is a discretionary act, it cannot be uniformly defined, and it shall be determined individually in accordance with the form of a provision that forms the basis for the pertinent disposition, stay, or language.

[2] Examining the residence and language of the provisions of Article 21(2)(3) of the Urban Planning Act and Article 20(1)1 of the Enforcement Decree of the same Act, these provisions prohibit the construction of buildings in violation of the purpose of designating a development restriction zone, the installation of structures, the alteration of the form and quality of land, the division of land area or the implementation of an urban planning project within a development restriction zone, and in exceptional cases, such a restriction is deemed not to impede the purpose of designating a development restriction zone. In such a case, setting criteria necessary to determine whether the purpose of designating a development restriction zone is not an obstacle to the purpose of designating a development restriction zone is within the discretion of the administrative agency, unless there are special circumstances to deem that the criteria established are objectively unreasonable or unreasonable, the intention of the administrative agency shall be respected

[3] The case holding that a disposition of non-permission of construction in accordance with Article 7 (2) of the Regulations on the Management of Development Restriction Zones (amended by Ministry of Construction and Transportation Directive No. 126 of November 11, 1995) and Article 7 (2) of the Ansan-si's Guidelines on Handling Permission-Related Facilities within Development Restriction Zones

[Reference Provisions]

[1] Articles 1 [general administrative disposition] and 27 of the Administrative Litigation Act / [2] Article 21 (2) and (3) of the Urban Planning Act, Article 20 (1) 1 of the Enforcement Decree of the Urban Planning Act, Article 27 of the Administrative Litigation Act / [3] Articles 1 [general administrative disposition] and 27 of the Administrative Litigation Act, Article 7 (1) 3 (g) of the Enforcement Rule of the Urban Planning Act, Article 7 (2) of the Regulations on the Management of Restricted Areas (amended by Ordinance of the Ministry of Construction and Transportation No. 126 of November 11, 195)

Reference Cases

[1] [2] Supreme Court Decision 97Nu21086 delivered on April 28, 1998 (Gong1998Sang, 1531) / [1] Supreme Court Decision 94Nu12302 delivered on December 12, 1995 (Gong1996Sang, 409) Supreme Court Decision 97Nu15418 delivered on December 26, 1997 (Gong1998Sang, 429) / [2] Supreme Court Decision 96Nu6172 delivered on October 11, 1996 (Gong196Ha, 3344), Supreme Court Decision 97Nu13061 delivered on February 13, 1998 (Gong198Sang, 785)

Plaintiff, Appellee

Plaintiff

Defendant, Appellant

Ansan-si (Law Firm Ansan-si et al., Counsel for the plaintiff-appellant-appellee)

Judgment of the lower court

Seoul High Court Decision 97Gu12923 delivered on April 23, 1998

Text

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

Reasons

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held that since the plaintiff's housing site owned in a development restriction zone is incorporated into a site for a light-speed rail construction project, around November 1995, after selling it to the Korea High-Speed Rail Construction Authority around October 1996, an application for construction permit was filed to newly build houses on the land of this case located in a development restriction zone as a natural green belt, and the construction permit holder under Article 8 (1) of the Building Act must issue a construction permit under the above Act as a matter of course unless the application for construction permit is in violation of any restrictions prescribed by the related Acts and subordinate statutes, such as the Building Act and Urban Planning Act, and Article 21 (2) and (3) of the Urban Planning Act and Article 20 (1) 1 (f) and (2) of the Enforcement Decree of the same Act and Article 7 (1) 3 (g) of the Enforcement Rule of the same Act, it constitutes a disposition of this case's construction permit within the development restriction zone, which is not an obstacle to the purpose of designation.

However, even if a certain administrative act is a binding act or discretionary act, it cannot be uniformly defined whether it is a binding act or a discretionary act, and it should be determined individually in accordance with the form, system, or language of the provision on the basis of the pertinent disposition (see, e.g., Supreme Court Decisions 97Nu15418, Dec. 26, 1997; 97Nu21086, Apr. 28, 198). Examining the stay and language of each provision on Article 21(2) and (3) of the Urban Planning Act and Article 20(1)1 of the Enforcement Decree of the same Act, which provide the basis for the instant disposition, are in violation of the purpose of designating the relevant area, the determination of whether it is a discretionary act or a discretionary act is in violation of the purpose of designating the area, and whether it falls under a restricted development zone should be made individually (see, e.g., Supreme Court Decision 197Nu21086, Apr. 28, 1998).

According to the records, the above development-restricted zone management regulations are the construction directives enacted to ensure reasonable management of development-restricted zones, which stipulate that the relocation of houses pursuant to the provisions of Article 7 (1) 3 (g) of the Enforcement Rule of the Urban Planning Act should not be remote, and the above "Guidelines Concerning Permission for restaurant within development-restricted zones" is established and implemented since April 4, 1996. The above "Guidelines Concerning Permission for Development-Restricted Areas" provides that the standards for the construction of buildings within development-restricted zones and the change of the purpose of the use of houses to restaurant are the most close eight meters (2 lanes) or more of the construction site area to be constructed in the boundary of the road, and the buildings which are located within 50 meters or more from the boundary of the site where the neighboring buildings are located within 10 meters more than 75 meters away from the boundary of the existing building site, and most of the existing buildings are located within 10 meters away from the boundary of the existing building site.

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 Lee Jae-soo (Presiding Justice)

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심급 사건
-서울고등법원 1998.4.23.선고 97구12923
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