The discretionary scope of the building permit granted by the person holding the building permit

The construction permit holder under Article 5 (1) of the former Building Act (amended by Act No. 4381 of May 31, 1991) shall grant the construction permit as a matter of course to the extent that the building to be constructed is not contrary to any restrictions prescribed by the relevant Acts and subordinate statutes, such as the Urban Planning Act, and shall not refuse the application for permission for reasons other than those prescribed by the relevant Acts and subordinate statutes.

Article 5 of the former Building Act (amended by Act No. 4381 of May 31, 1991)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellee)

Plaintiff

Changwon market et al., Counsel for the defendant-appellee

Busan High Court Decision 91Gu4331 delivered on July 8, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Unless a building permit holder under Article 5 (1) of the Building Act (amended by Act No. 4381 of May 31, 1991) is contrary to any restrictions provided for in the relevant provisions, such as the Building Act and the Urban Planning Act, the building permit holder shall, as a matter of course, grant a building permit under the provisions of the same Act, and shall not immediately refuse the application for permission on grounds other than the grounds for restrictions provided for in the relevant provisions (see, e.g., Supreme Court Decision 88Nu10541, Mar. 28, 1989; 85Nu942, Mar. 10, 1987).

Therefore, although the court below's above opinion does not fall under any grounds for restrictions stipulated in the relevant laws and regulations, it is just to determine that the defendant's rejection of the application for the building permit is unlawful on the ground that the construction of the building of this case does not only harm the urban landscape if the building of this case was newly constructed, but also hindering traffic flow, but also caused the passage of the vehicle.

In addition, with respect to the defendant's assertion that there is a ground to render a judgment on the circumstances in the case of this case, if there is no restriction on the related laws such as the Building Act, to construct a building on the ground itself in order to utilize certain land located on the roadside of the city area as a site for construction, and there is no violation of the urban landscape. In addition, barring special circumstances such as where a building to be newly constructed on the road is not in line with the surrounding road condition or condition, which makes it difficult to be socially acceptable due to a traffic obstacle, it cannot be said that the construction of the building in this case seriously goes against public welfare, and there is no illegality such as misapprehension of legal principles or violation of the rules of evidence as argued by the plaintiff.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.