Plaintiff (Law Firm Daejeon Dong, Attorneys Song-dae et al., Counsel for plaintiff-appellant)

Head of Dong-gu Daejeon Metropolitan City

October 24, 2013

Daejeon District Court Decision 2013Guhap538 Decided June 5, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition that the plaintiff filed a report on the act within the development-restricted area (housing extension and reconstruction) against the plaintiff on July 25, 2012.

1. Details of the disposition;

A. The Plaintiff’s land and housing acquisition circumstances

1) On July 6, 2006, the Plaintiff acquired five buildings, including 2,268 square meters of forest land (number 1 omitted) and 42.12 square meters of housing on the instant land on the building ledger, located on the Dong-dong, Daejeon-gu, Daejeon (hereinafter “instant land”) and the building on which the Plaintiff removed the remaining four buildings, excluding the instant housing, from August 2006 to December 2, 2006 (see attached Form 1).

2) On November 12, 2008, the result of the cadastral survey conducted by the Dong-gu Seoul Special Metropolitan City Seoul Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City City Special Metropolitan City City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City, Special Metropolitan City Special Metropolitan City and Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City.

3) After that, the Plaintiff purchased the part of the land (number 3 omitted) in Dong-gu, Daejeon-gu, Daejeon-gu (Appellant 5 omitted), which is a part of the instant housing site, and completed the registration of ownership transfer on November 9, 2010, and completed the registration of ownership transfer on the land (number 2 omitted) in the Dong-gu, Daejeon-gu, Daejeon-gu, Daejeon-dong (Land Number 6 omitted) [number 6 omitted], the registration of ownership transfer was completed in the name of the Plaintiff on April 7, 201.

B. Application for permission for development activities by the Plaintiff

On June 19, 2012, the Plaintiff submitted to the Defendant a report on the change of construction, large-scale repair, and use of the instant housing on the grounds that the instant housing is expanded and reconstructed, which is part of the instant land (hereinafter “instant application site”), and filed a collective application for permission for development activities, etc. (hereinafter “instant application”).

C. Defendant’s notification of non-report on acts within development restriction zones

On July 25, 2012, the Defendant: (a) notified the Plaintiff of an act in a development-restricted zone to the effect that the Plaintiff’s application of this case is denied on the following grounds (hereinafter “instant disposition”).

Land that can be newly constructed as a house within a development restriction zone pursuant to Article 13(1) [Attachment Table 1] subparagraph 5(c) of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones can be limited to land the category of which is a building site from the time of designation of the development restriction zone, but the land of this case, which is the site for which an application is filed, is a land category as a "forest," and an application for expansion or reconstruction of a house within a development restriction zone can be located in the relevant site within the development restriction zone, but in the case of the land of this case,

[Ground of recognition] Facts without dispute, Gap evidence 2 through 7, Eul evidence 1, Eul evidence 1, 3 through 6, 11 (including each number), video and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Since the instant housing was constructed on the site of the instant application and satisfies the following requirements, the instant disposition to the effect that the instant housing extension or reconstruction in the site of the instant application ought to be permitted under the Act and the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Act”) is unlawful.

A) Article 12 of the Act provides that a development restriction zone may build a building with the permission of the head of the local government, and the conditions of the permission are specified in the Enforcement Decree. Accordingly, Article 13(1) [Attachment Table 1] of the Enforcement Decree of the Act (amended by Presidential Decree No. 24178, Nov. 12, 2012; hereinafter “Enforcement Decree”) provides that a house may be newly constructed on the land where the land category was a building site from the time of designation of the development restriction zone and the existing house was located since the designation of the development restriction zone.

However, the Plaintiff uses part of the instant application site (118.12 square meters among 330 square meters) as the marina, and the Defendant deemed the marina part as the site and imposed a property tax based on the site. As such, the instant application place ought to be deemed as the “land category with large land”.

In addition, since the instant land has been located at the level of 2.689 square meters since the designation of the development restriction zone, it constitutes the land where the existing housing exists. Therefore, the instant land constitutes the land where a new house can be built pursuant to Article 13(1) [Attachment 1] [Attachment 1] 5.c. (a) of the Enforcement Decree.

B) Article 13(2)1 of the Enforcement Decree of the Act provides that where the boundary of a development restriction zone leads to a building through a building from the time of designation of the development restriction zone, the site of the building can be constructed in an adjacent special-purpose area.

However, since the boundary line of the application site of this case passes through the house of this case, and the surrounding area of the application site of this case is divided into walls, the application site of this case shall be deemed as the site of this case, which is one of the location and function of the house of this case.

Therefore, in the application site of this case, the extension or reconstruction of the house of this case should be permitted in accordance with the above provisions.

2) The instant disposition is unlawful since it violates the principle of trust protection as follows.

The Plaintiff was awarded a successful bid with the knowledge that the total floor area was built on the instant land as the Plaintiff entered in the building ledger, with the knowledge that the entire building area was built on the instant land. However, although the Defendant had a legal obligation to record, maintain, and manage the current status of the building and its site in the building management ledger of a development-restricted zone, the Defendant expressed a public opinion that it is possible to newly construct the instant land by registering the instant housing on the instant land as constructed on the instant land, which is a development-restricted zone, within a development-restricted zone. The Plaintiff believed that the lot number of the instant housing site was erroneous in the building ledger and acquired the instant housing in trust and trust the contents of the building ledger on the instant land, thereby causing property damage to the instant disposition, while acquiring the instant housing, and there is no concern that the Plaintiff would undermine public interest or legitimate interests of a third party by newly building on the instant application form. Therefore, the instant disposition should be revoked

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) As to whether the instant application place is a land that can obtain a new building permit within a development restriction zone under the Act and the Enforcement Decree

A) Whether a building can be permitted pursuant to Article 13(1) [Attachment 1] [Attachment 5.c. A] of the Enforcement Decree

(1) According to Article 13(1) [Attachment 1] 5.c. (a) of the Enforcement Decree of the Development Restriction Zone, a building can be newly built on a parcel of land, the land category of which was large at the time of the designation of the development restriction zone, and an existing house had been located at the time of the designation

B. First of all, we examine whether the instant application was land categorized as a building site since the development restriction zone was designated.

The term “land category” means that the land category on the public register, such as the building ledger, is the larger land category.In a case where the land category and the current status are different, the imposition of taxes according to the current state under the tax law is limited to a taxpayer’s economic interest using the relevant land as a site based on the ideology of substantial taxation, and in the construction administration, it is necessary to determine whether the relevant land category is subject to building permission or reporting based on the stipulated land category in the

As acknowledged earlier, the instant application form cannot be deemed as a site since the land category on the public register is “forest”; even according to the Plaintiff’s assertion, the area used as a marina of the instant house is limited to 118.12 square meters out of 2,268 square meters, and even if property tax was imposed by deeming part of the instant land as a site as the Plaintiff’s assertion, it cannot be deemed as the instant application form merely based on the circumstance that the pertinent property tax was imposed,

Secondly, we examine whether the instant application was “existing housing” at the time of the designation of the development restriction zone.

Article 13(1) of the Enforcement Decree provides that housing facilities may be constructed within a development-restricted zone with the permission of the head of a local government. Article 13(2) of the Enforcement Decree provides that where the boundary of a development-restricted zone passes through a building, i.e., where a part of a building is located in a development-restricted zone, it is deemed that the entire building is located in the land designated as a development-restricted zone. Accordingly, it is reasonable to interpret that Article 13(1) of the Enforcement Decree provides that the whole building is located in the land designated as a development-restricted zone. In this case, it is difficult to view that only one square meter, which is part of the instant housing, is constructed, and that the instant application is “the land with an existing

In addition, even in a case where there is a “existing house” in the latter part of Article 13(1) [Attachment 1] 5.c. (a) of the Enforcement Decree, the size and structure of the building on the building ledger shall coincide with the existing building area or structure. In full view of the purport of the entire pleadings in the written evidence Nos. 18 and 28 of the Enforcement Decree, although the instant house was registered as a 42.12mmm2 on the building ledger, it is recognized that the instant house was actually constructed as a 49.8mmm2 on August 28, 2009, which is the date of the instant disposition transfer, as of August 28, 2009, which is the date of the instant disposition. According to the above fact of recognition, the instant land cannot be deemed an existing house on the building ledger.

x) Therefore, the plaintiff's assertion that the place of the application in this case constitutes land eligible for permission to build a new building pursuant to Article 13 (1) [Attachment Table 1] of the Enforcement Decree. (c) of the Enforcement Decree is without merit.

B) Whether a building construction permit can be granted pursuant to Article 13(2)1 of the Enforcement Decree

According to Article 13(2)1 of the Enforcement Decree of the Act, where the boundary of a development restriction zone passes through a building from the time of designation of the development restriction zone, the housing may be constructed with the permission of the head of the local government on the site of the building (land which is partitioned by fences, etc. from the time of designation of the development restriction zone).

However, the fact that part of the instant house (1m2) was constructed on the instant application site (330m2) was located prior to the fact that the instant house was located on the instant land (330m2), but comprehensively taking account of the overall purport of the pleadings in the video of No. 13, the fence was installed on the entire boundary of the instant land, and the said steel fence was not installed on the part of the fore part of the instant house. Accordingly, according to the above fact of recognition, it is difficult to view that the instant land among the instant housing site was partitioned into a wall, etc. from the time of designation of the development restriction zone, and there is no other evidence to acknowledge it differently.

Therefore, the plaintiff's assertion that the land of this case constitutes land subject to permission for new construction pursuant to Article 13 (2) 1 of the Enforcement Decree of the Act is without merit.

2) As to the assertion of violation of the principle of trust protection

(A) requirements for the application of the principle of trust protection;

In general, in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual, second, the administrative agency should have no reason attributable to the individual when the statement of opinion is well-grounded, third, the individual should have trusted that the name of opinion is well-grounded, and third, the administrative agency should have conducted any act contrary to the above statement of opinion. Fourth, the administrative agency should have made a disposition contrary to the above statement of opinion so that the interest of an individual who trusted that statement of opinion is infringed. If any administrative disposition satisfies these requirements, it is unlawful as an act contrary to the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interest of a third party (see Supreme Court Decision 98Du19070 delivered on March 9, 199).

B) Whether the instant disposition violated the principle of protecting trust in the disposition of this case

First of all, as to whether the Defendant had a public opinion mark that it is possible to build a building in the instant application place, and in fact, the Defendant erroneously stated the number of the instant house in the building ledger as if the entire site of the instant house belongs to the instant land in the building ledger as if the entire site of the instant building belongs to the instant land, the fact that the Defendant erroneously stated the number of the instant house in the building ledger in the Dong-dong, Daejeon-dong, Daejeon-dong, Appellate-dong (number 1 omitted), but it is difficult to view that the Defendant expressed its opinion that it is possible to build a building in the said lot number on the ground that the lot number of the instant house was written in the building ledger in the building ledger as the building ledger in the Daejeon-dong, Dong-dong, Daejeon.

In addition, as seen earlier, the Plaintiff became aware of the fact that the parcel number of the instant house was recorded in the building ledger in the course of the Defendant’s road construction survey in 2008, prior to the filing of the instant application, and under that circumstance, the instant application was filed. Thus, it is difficult to view that the instant application was based on the trust in the entries in the building ledger.

Therefore, the plaintiff's assertion that the disposition of this case violates the principle of trust protection is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 2]

Judges Lee Jin-hun (Presiding Judge)