(영문) 서울행정법원 2007.8.30.선고 2006구합48233 판결

1. On November 24, 2006, the Defendant revoked a disposition for the Plaintiff to report the establishment of a religious organization, a charnel house, and to report the establishment thereof.

2. Of the costs of lawsuit, the part resulting from the intervention is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. On August 7, 2006, the Plaintiff reported on the establishment of a religious charnel house (hereinafter referred to as “the instant charnel house”) with a size of 843 square meters on 79 square meters, 6,452, located outside X-14 lots of land in Mapo-gu Seoul Metropolitan Government.

B. On November 24, 2006, the Defendant rendered a disposition to return the Plaintiff’s report (hereinafter “instant return disposition”) for the following reasons.

[Ground for Recognition] In without dispute, Gap evidence No. 1

2. Whether the return disposition of this case is legitimate

A person shall be appointed.

A. Relevant statutes

As shown in the attached Form.

(b) Facts of recognition;

( 1 ) 이 사건 납골당 설치장소는 양화대교와 서강대교 사이의 한강 북안에 위치한 서울특별시 사적 제399호 양화나루 · 잠두봉유적 주변으로 , 조선 말기 수많은 천주교 신자들이 순교한 것을 기리기 위하여 천주교에서 잠두봉을 중심으로 성당과 절두산순 교기념박물관을 세우고 주변지역을 공원으로 꾸몄으며 , 일반적으로 절두산순교성지 ( 이 하 ' 순교성지 ' 라 한다 ) 라고 불리운다 .

(2) The net bridge area is a type of other than the head of the Dong, which is the direction of the road, and the south side is adjacent to the Han River, the south side is adjacent to the Han River, the north side is adjacent to the Gohap Dong Housing, the south side is adjacent to the south side, the road on the west side of the riverside north, and the road on the west side is adjacent to the south side, the north side of the riverside north, the north side is passing through the underground, and the west side of the riverside north, and the west road on the west side is passing through the underground.

(3) The Mapo-gu, Mapo-gu, Seoul, 196 - 1, 196, and its surrounding areas are designated as a cultural heritage protection area, icely, which is the center of the land of the sloping. The plaintiff purchased the land of 194-1, Mapo-gu, Mapo-gu, Seoul, and 194-1, which is adjacent to the scambling residential area, from the north north of the scambridge around the end of 2000, and was established as a center for education of the scambridge, the 4th above ground and the 5th above ground (hereinafter referred to as the "video education center"), and obtained approval for the use on March 16, 2006.

(4) The 1st floor of the building of the video education center is used as a restaurant, a resting room, a store, a second floor for the 2nd floor for the sexual party office, a room for the 4th floor for the 5th floor, a private hall for the 5th floor for the 5th floor, a private hall for the religious assembly, an underground 1, and a second floor for the 4th floor for the 3 and the 4th floor for the video education center, and the plaintiff intends to establish the instant charnel house for the 3 and the 4th floor for the 1st floor, and each toilet for the disabled is installed for the 2nd floor.

(5) Access to the pure intersection is a way to enter the intersection from the intersection where subway 2 lines and 6 lines transfer to the south from the intersection to the intersection of 500 meters south, and the intersection is a way to enter the intersection by getting out of the intersection to the south, which is connected to the left from the first intersection to the north, the parallel of the intersection. The intersection is a way to enter the road from the intersection to the north, leading to the left side of the intersection by getting out of the intersection to the north, and going out from the intersection to the north, after getting out of the intersection, the intersection to the north, and getting out of the intersection to the right side before entering the intersection, and getting out of the intersection to the intersection to the north, the intersection to the left side of the intersection by getting out of the intersection to the north, the parallel to the north, leading to the left side of the intersection to the road from the intersection to the intersection.

(6) In the way of entering into the intersection, the Do newsletter will go back to the reverse order of entry, and unlike the time of entry, the automobile will go to the Do road immediately facing the Dong-dong. This road, as in the preceding paragraph, is divided into the Do-dong Do-dong Do-dong Do-dong Do-dong, which is connected to the right side after the passage through the underground section of the Do-dong Do-dong Do-ri, the right side of the road.

(7) As above, access roads to and entry into the charnel of this case are the recognition of the human body of the riverside North Korea and the Bridge of the Bridge, which is set up above the west side when it is based on the roads that enter the joint dynamics room from the west intersection. Residential areas of neighboring residents are located in the east at the same time as the above roads are based on the above roads. Thus, since the vehicles are almost unlikely to pass through the roads in the residential area, they are located in the east.

(8) The places where vehicles using the instant charnel can park are 39 parking lots attached to the Video Education Center, 133 parking lots attached to the Gyeyang-do Public Park, 78 public parking lots for the Han River Citizens Park.

(9) Meanwhile, as in the present site of the video education center, the two lusheal lusheal lusheal lusheal lusheal lusheal lusheal lusheal lusheal lusheal 467, Mapo-gu, Seoul, which was adjacent to the same site of the video education center, was privately designated, the apartment house was worn out and promoted the reconstruction of the apartment. However, at the time of the construction of the apartment house, the Plaintiff asserted that the apartment re-construction could damage the landscape surrounding the lusheal lusal lusal lusal lusal lusal lusal lusal lusal lusal lusal lussal lusal lusal lus

(10) Ultimately, the reconstruction of a non-permanent house is originally 19 stories of 19 stories of 19 stories of 19 stories of November 11, 1997 by being designated as a private site and being subject to a high altitude restriction on the construction of a nearby area.

That was authorized, it was reduced to 65 households in the 11st floor, and the present mobilization marc apartment was constructed, and the location of the charnel house in this case is 4m wide.

(11) On September 11, 2006, upon the Plaintiff’s report on the establishment of a charnel, the Defendant: (a) requested the management office; (b) the bereaved family convenience facilities (cafeteria); and (c) the stores to install separate facilities in the video education center; and (d) the facilities (c) and toilets to store remains; and (d) the Plaintiff demanded local residents to submit a written consent; (b) the Plaintiff to supplement some of the deficiencies; (c) the bereaved family convenience facilities (cafeteria); (d) the store was installed separately from the existing facilities in the video education center; and (d) the mountain facilities was installed in accordance with the level of charnel houses in the city park at the outside of the landscape facility of the building; and (e) requested the Plaintiff to submit a written consent to the local residents.

(12) The plaintiff supplemented the convenience facilities for bereaved families (cafeteria), stores, and the fourth basements underground in compliance with the defendant's requirements. However, the mountain charnel facilities are in the condition that they walk a part of the flowers of the front side of the building of the video education center, cover sand, and have a conspiracy with trees in front of the building. The defendant issued the return of this case to the fourth floor toilets above the ground that this falls short of the snow standards and did not require any supplementary measures. The plaintiff did not submit the written consent for local residents on the ground that there is no facilities for the disabled.

(13) Although it is known that the Plaintiff is promoting the establishment of the instant charnel, the conflict has been raised as a civil petition of neighboring residents, including the Defendant’s Intervenor’s Intervenor, and the Defendant’s main election, which led to a number of meetings between the Plaintiff and the residents, but has not reached an agreement.

(14) In the case of a charnel house of 186, Black-dong, Jungcheon-dong, Dongjak-gu, Seoul, 186, the remains of 3,000 in a charnel house of 1st century. There are 4-5 meters away from the neighboring house price, and the parking lot of 14:0 per month was in a state where most of the fluences were in a state of fluence.

(15) According to the rules on the operation and management of the instant charnel (No. 9-2 of the evidence No. 9-2), it is possible to open the remains in a container provided by a charnel to permanently preserve the remains, and to prevent damage and corruption, after being sealed in the container, and then being sealed in the remains, and the container shall not be opened for any reason, and opening the remains after being removed shall be limited to not more than 30 minutes in the presence of the management manager at the prior request of the surviving family.

(16) From June 27, 2003 to July 17, 200 of the same year, the Plaintiff was subject to a summary order of KRW 3 million on the grounds that he installed a 174-year charnel facility within the Simsan Memorial Museum located within the protection zone, and that he actually installed the 312-year charnel facilities in the same place and installed the 382-year charnel facilities in the same place and installed the 282-year remains, and was subject to an administrative disposition ordering the Defendant to move the above charnel facilities. The Plaintiff sold the 1,859 rooms as of February 2, 2006 in advance on the ground that the report on installation of the charnel facilities was not accepted.

[Ground for recognition] evidence Nos. 4, 5, 6-1, 2, 7-10, 12, 14, 15, 17, 18-1, 2-2, 1-3, 4-3, 4-7 of evidence Nos. 2, 9-1, 16-1, 2-2, 18-1, 25, 24-1, 24-2, 1-2, 1-3, 2-3, 4-7, 9-1, 1-4, 16-1, 2-2, and the whole purport of this court's oral proceedings,

D. Determination

(1) The nature of the administrative agency’s acceptance or return of the report on the establishment of a charnel house.

In light of the purport that Article 4 of the Funeral Services, etc. Act (amended by Act No. 6158 of Jan. 12, 2000) provides for promoting the installation of private charnel facilities by relaxing the matters to be reported at the time of enforcement of Article 14(1) of the Burial and Graveyard, etc. Act (amended by the Funeral Services, etc. Act No. 6158 of Jan. 12, 200), the administrative agency’s repair or rejection of the report on installation of private charnel facilities under Article 14(1) of the Funeral Services, etc. Act does not constitute an area where the report is prohibited from the installation of private charnel facilities under each subparagraph of Article 15 of the same Act, but constitutes an act of discretionary repair as long as the report meets the installation standards set forth in Article 14(3) of the same Act and Article 13(1) of the Enforcement Decree of the same Act.

(2) Determination as to the assertion by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “Defendant, etc.”)

(A) Determination as to the assertion that the establishment criteria fall short of

The defendant et al. asserts that the defendant et al. made the remains as a place for early use and made it a small amount of dump so that the remains can be improved to the 2-3-day burial facilities, and that a kind of dump charnel facilities should not be installed immediately adjacent to the building, which is the charnel facilities, and at least 150 meters away from the building in accordance with the establishment standards of the Seoul Special Metropolitan City, and that the instant charnel house does not meet the standards for the establishment of a charnel house as prescribed by the Acts and subordinate statutes, since there is no convenience facilities for the disabled in the fourth floor of the underground.

Article 13 [Attachment 3] of the Enforcement Decree of the Funeral Services, etc. Act provides that a charnel established by a religious organization shall be installed with a management office, bereaved family convenience facility, a facility for spraying the cremation remains, and other necessary facilities. According to Article 2 subparagraph 4 of the Seoul Special Metropolitan City Ordinance on Funeral Services, etc., the term “san house” means the permanent funeral of the remains buried permanently in rivers, mountain, etc., and there is no basis to require the installation standards as asserted by the defendant, etc. against the mountain charnel facilities. Rather, in the case of the burial of remains, it is not a facility for spraying the remains of the main purpose of the burial of remains. Rather, according to the regulations on the operation of the charnel of this case, the charnel facilities of this case contain the buried remains in a container of the ashes which completed cremation, and the said facilities are installed for the burial of remains, and thus, the demand for cremation of the mountain facilities of this case is rarely impossible.

In light of the fact that the current establishment of a film education center is established in part of the film education center, the installation standards of charnel houses prescribed by the laws and regulations can be satisfied only with the existing establishment level of the mountain education center.

In addition, as seen earlier, persons with disabilities who installed toilets on the first floor and second floor of video education center shall be deemed to have used the toilets, and the cremation room for persons with disabilities shall not be installed on the entire floor of the building. Thus, the standards for installation of charnel houses shall not be violated.

Therefore, this part of the argument is without merit.

(B) Determination as to the assertion of traffic congestion

피고등은 이 사건 납골당 설치장소가 일반주거지역 내에 있고 , 장례차량이 이 사건 납골당에 진 · 출입하기 위하여 이용하는 도로는 평소에도 교통체증이 극심한 지 역인데 여기에 규모가 6 , 452기에 이르는 이 사건 납골당이 들어서 장례차량이 수시로 드나들고 , 명절에 일시에 유족이 몰리는 경우 인근 지역에 교통체증을 가중할 것으로 예상된다고 주장하나 , 명절에 조상의 묘소를 찾아뵙는 일은 대대로 이어져 내려온 미 풍양속으로서 이로 인하여 명절 때마다 전국 각지의 도로가 성묘 차량으로 몸살을 앓 는 일이 연례행사처럼 되어 있지만 누구도 이를 탓하지 않고 서로 용인하는 것이 우리 민족의 정서인 점 , 명절의 교통체증은 1년에 한두 번 있는 일시적인 현상에 불과한 점 , 이 사건 납골당이 설치되더라도 6 , 452기의 유골이 일시에 안치되는 것이 아니라 오랜 세월을 두고 점차적으로 안치가 이루어지고 , 망자의 기일은 그 날짜가 각각 다르므로 유족들의 방문이 일시에 몰리지는 않을 것으로 보이는 점 , 이 사건 납골당의 진 · 출입 로는 인근 주거지역을 통과하는 것이 아니어서 납골당 이용 차량이 주민들의 일상 교 통에 지장을 주지는 않을 것으로 보이는 점 등 앞서 인정한 사실에 비추어 보면 , 이 사건 납골당 설치로 주변 교통에 다소의 부담을 주게 된다고 하더라도 이것이 납골당 설치신고를 반려해야 할 정도로 심각하게 공익을 해친다고 할 수 없으므로 , 이 부분 주장도 이유 없다 .

As seen earlier, the Plaintiff is punished as a summary order, and the reason why the Defendant received an order to move from the Defendant is that the remains were laid in the Domsan Memorial Museum, which is a cultural heritage protection area for which the installation of a charnel facility is not possible. Since the place where the instant charnel house is installed is a video education center located outside the cultural heritage protection area unlike the said place, such unlawful act does not affect the establishment report of the instant charnel house, and the pre-sale is merely a contractual relationship between the Plaintiff and the buyer, and the pre-sale does not cause any defect in the establishment report of a charnel house itself. Therefore, this part of the allegation is without merit.

(D) Determination on the assertion that the residential environment was low

The defendant et al. asserted that the neighboring residents have damaged the residential environment in neighboring areas, such as smelling and the bereaved families from time to time, dynads, and the bereaved families of the funeral vehicle and the small shots, etc. However, as seen earlier, it seems that the funeral vehicle might not have any way to pass through the neighboring residential area, as seen earlier. The instant charnel house is located at the 3 and 4th floor of the building of a video education center, and the degree of smelling or galsing out to be scattered outside, and there is no provision prohibiting the installation of funeral facilities in neighboring residential areas under the Acts and subordinate statutes. (The Seoul Metropolitan City Urban Planning Ordinance on the Establishment of a Religious Assembly within Class 1 general residential area limits the period of not more than 750 days to the head of the religious assembly within the Class 1 general residential area after the report on the establishment of the instant charnel house, and thus, it cannot be viewed as having any significant reason to return the instant charnel to the extent that it does not affect the public interest.

(E) Determination on the allegation of conflict with residents

Although the defendant et al. submitted a written objection against the reconstruction of a house in the past and received a designation of a cultural heritage protection zone, and made it clear that the damage to the neighboring residents' property will continue to exist in the future due to the restriction on height in accordance with the cultural heritage protection zone, the defendant et al. cannot make sure that he/she did not compensate for any damage, and he/she did not submit a written consent to the residents. However, if the designation of a cultural heritage protection zone is erroneous, the designation shall be cancelled if it is caused by the error in the designation of the cultural heritage protection zone, and the conflict with the neighboring residents is serious or resident living together without any legal basis.

Since the report on the establishment of a charnel cannot be returned due to the reason that the written objection was not submitted, this part of the argument is without merit.

(f) Determination on the assertion of a funeral administration performance

The defendant et al. alleged that the report on the establishment of a charnel of this case is carried out in accordance with the basic direction of the funeral administration of Seoul Special Metropolitan City, which promotes small-scale dispersion and use convenience in order to reduce the inconvenience of residents, and thus, it cannot be accepted. However, the defendant et al. asserted that this part of the report is not reasonable, since there are no grounds for the ASEAN statutes that prohibit or restrict

(g) Determination on the assertion of restrictions, etc. under the municipal ordinances;

The defendant et al., within the Class I general residential area in which the place of the instant charnel is installed under the Seoul Metropolitan City Urban Planning Ordinance, shall be limited to not more than 750 days, and the establishment of a charnel facility in the building completed by the video education center is in violation of the Building Act. However, these arguments are without merit, even if the defendant added the grounds that are not the grounds for the disposition in the original return of the instant case, and it is difficult to view that the grounds for the original disposition and the basic facts are identical.

3. Conclusion

Therefore, the rejection disposition of this case should be revoked in an unlawful manner. Thus, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges

Judges Shin Dong-dong, Judge

Judges Kim Kim-soo

Judges Adjusted or Managed

Site of separate sheet

Relevant statutes

Act on Funeral Services, etc.

Article 1 (Purpose) The purpose of this Act is to prevent harm to public health and sanitation, to contribute to the efficient utilization of national land, and the promotion of public welfare by prescribing matters concerning burials, cremations, charnel facilities, charnel facilities, and funeral parlors, and matters concerning the installation, management, etc. of cemeteries, crematoriums, charnel facilities, and funeral parlors.

Article 14 (Establishment of Private crematoriums, etc.)

(1) When a person, other than a Mayor/Do Governor or the head of a Si/Gun/Gu, intends to install and manage a crematorium (hereinafter referred to as a "private crematorium") or a charnel facility (hereinafter referred to as a "private charnel facility"), he/she shall report to the head of a Si/Gun/Gu having jurisdiction over the relevant private crematorium or private charnel facility, as prescribed by Ordinance of the Ministry of Health and Welfare. The same shall apply where he/she intends to modify matters prescribed by Presidential Decree among the reported matters.

(2) A person who intends to establish and manage a private charnel facility with a view to the installation and management of a charnel facility under the Civil Act shall establish an incorporated foundation, the purpose of which is to install and manage the charnel facility under the Civil Act: Provided, That this shall not apply where a religious organization establishes and manages the remains of a person who is related to a family or who was related to a family or a person who was related to a family member of a clan or a family member of a clan.

(3) Matters necessary for standards, etc. for the installation of private crematoriums and charnel facilities shall be prescribed by Presidential Decree.

Article 15 (Restrictions on Installation of Cemeteries, etc.) No crematorium or charnel facilities shall be installed in an area falling under any of the following subparagraphs:

1. Green areas as prescribed by the Presidential Decree from among green areas under Article 32 (1) 4 of the Urban Planning Act;

2. Water source protection areas as provided in Article 5 (1) of the Water Supply and Waterworks Installation Act: Provided, That the same shall not apply to charnel facilities or individuals, family members, and charnel facilities installed in the landscape of the existing members;

3. Cultural properties protection areas under Articles 8 and 55 of the Protection of Cultural Properties Act; and

4. Other areas prescribed by the Presidential Decree.

Enforcement Decree of the Funeral Services, etc.

Article 13 (Standards, etc. for Establishment of Private crematoriums, etc.)

(1) The standards for the installation of private crematoriums and private charnel facilities as prescribed in Article 14 (3) of the Act shall be as shown in the attached Table 3.

2. Private charnel facilities;

(2) Charnels established by religious organizations.

(a) A charnel shall be provided with access roads and parking lots of not less than five meters wide: Provided, That existing members

This shall not apply to cases of establishment in a police boat.

(b) Management office, facilities for the convenience of bereaved families, facilities for the roots of cremationed remains, and other necessary facilities.

must be established.

Seoul Metropolitan Government Ordinance on Funeral Services, etc.

Article 2 (Definitions)

The definitions of terms used in this Ordinance shall be as follows:

4. The term "sanct" means the burial of cremation remains permanently in rivers, mountains, etc., and the end of funeral services.

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