[1] In a case where a law was wholly amended, whether the transitional provision of the Addenda to the previous law is invalidated in addition to the main text of the previous law and the Addenda provision (affirmative in principle) / Where there is a “special circumstance” that does not lose its effect exceptionally, and the method of determining whether there exists a “special circumstance” in this case

[2] Whether there is an exceptional “special circumstance” to be deemed to be null and void for the enforcement of the former Building Act (wholly amended by Act No. 4381, May 31, 1991)(affirmative)

[3] Whether a person holding a building permit may refuse to accept a building report in a case where the building report is not subject to an explicit restriction under the related laws, such as the Building Act, but it is necessary for the significant public interest to not allow construction (affirmative)

[4] The case holding that in a case where Gap filed a lawsuit seeking revocation of a disposition of rejection of the building report on the ground that "the head of the Gu is unable to allow the construction of the above land because it constitutes a road under the Building Act" after purchasing the land used as a "de facto road" for the passage of neighboring residents, but the head of the Gu filed a lawsuit seeking revocation of the disposition, and the court below filed an appeal by the head of the Gu to the effect that "the above land is de facto offered for the passage of neighboring residents, and it is against the interests of the social community and neighboring residents, preventing the passage of the residents, and thus it cannot be permitted to construct the housing of Gap because it is contrary to the interests of the neighboring residents, the reason added by the court below is identical with the original reason and basic facts of the disposition, and there is room to view the above disposition as legitimate and legitimate

[1] In the case of the whole amendment of the Act, the same applies to the repeal of the previous Act and the enactment of a new Act, and in principle, the main provision of the previous Act as well as the main provision of the Addenda shall be deemed null and void. Thus, the transitional provision of the previous Act shall not be null and void, and in exceptional circumstances, the term “special circumstance” in this context includes not only the case where the whole amended Act has a separate provision that the transitional provision of the previous Act shall continue to apply with respect to the transitional provision of the previous Act, but also the case where there are exceptional circumstances where the previous transitional provision shall continue to apply without invalidation, even if there are no such provision. In such a case, whether there is an exceptional “special circumstance” shall be determined individually and specifically by comprehensively taking into account the legislative background and purport of the previous statute, the legislative purport and overall structure of the entire amended Act, whether there is a legal gap, and all other circumstances.

[2] Article 4381 of the Building Act (wholly amended by Act No. 4381 of May 31, 1991), which does not stipulate transitional provisions such as Paragraph 2 of the Addenda of the former Building Act (amended by Act No. 4381 of Dec. 31, 1975) (hereinafter “former Addenda Paragraph 2”), reflects the situation where it is necessary to maintain transitional provisions such as Paragraph 2 of the previous Addenda because most of the roads at the time are designated as a road by a Mayor/head of a Gun, etc., and it is not the purport that the former Addenda Paragraph 2 of the former Addenda is to again change the de facto road, which has already become a road under the Building Act, into a non-road under the Building Act. Considering that Article 2 of the former Addenda becomes null and void pursuant to the same provision, there is a legal gap in the actual road which already became a road under the Building Act, and in particular, problems arise in the protection of trust and legal stability of the owners of neighboring land and buildings using the road as a passage.

[3] Even in cases where a building report is not contrary to the explicit restrictions stipulated in the relevant statutes, such as the Building Act, the National Land Planning and Utilization Act, etc., the person entitled to the building permit may refuse to accept the building report if necessary for the significant public interest.

[4] In a case where Gap filed a construction report stating that "the land used as a "de facto road" for the passage of neighboring residents would be newly constructed on the second floor, but the head of the Gu filed a lawsuit seeking revocation of the disposition of rejection of the construction report due to the reason that "the construction of the above land cannot be permitted because it constitutes a road under the Building Act," and the first instance court filed an appeal by the head of the Gu to the effect that "the above land is de facto offered for the passage of neighboring residents, and it is against the interests of the community and neighboring residents, and it is impossible to allow Gap to construct a house because the construction of the above land is contrary to the interests of the neighboring residents," the case held that the original reason for disposition and the ground for disposition additionally asserted by the head of the Gu in the original trial are different from the assessment of the legal nature of the above land, and since the current status of the use of the new house cannot be permitted, it is recognized that the basic factual identity of the facts is recognized, and that there is a need for additional disposition in the above land to prevent the passage of neighboring residents, and there is much more serious need for public interest.

[1] Article 2 subparag. 15 of the former Building Act (amended by Act No. 2188 of Jan. 1, 1970) (see current Article 2(1)11), Article 2 subparag. 15 of the former Building Act (amended by Act No. 3073 of Dec. 31, 197) (see current Article 2(1)11), Article 2 subparag. 15 of the former Building Act (amended by Act No. 3073 of Dec. 31, 197), Article 2 subparag. 11 of the former Building Act (amended by Act No. 4381 of Aug. 5, 1993) / [2] Article 2 subparag. 15 of the former Building Act (amended by Act No. 2188 of Jan. 1, 1970) (see current Article 2(1)11 of the former Building Act), Article 13 subparag. 15 of the former Building Act (amended by Act No. 153197 of Dec. 13, 19719 of the former Building Act)

[1] [2] [3] Supreme Court Decision 2011Du27322 Decided March 15, 2012 / [1] [2] Supreme Court Decision 201Du815 Decided January 27, 2012 / [1] Supreme Court Decision 2006Du19419 Decided November 27, 2008 (Gong2008Ha, 1808) / [3] Supreme Court Decision 2014Du15504 Decided September 15, 2015

Plaintiff (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu (Law Firm LLC, Attorneys Lee Ho-min et al., Counsel for the defendant-appellant)

Intervenor joining the Defendant

Seoul High Court Decision 2017Nu54618 decided November 15, 2017

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 2 and 3

A. Article 2 subparag. 15 of the Building Act (amended by Act No. 2852 of Dec. 31, 1975) provides that “road” means a road with a width of at least four meters which has been at least four meters which has been publicly announced pursuant to the provisions of the Urban Planning Act, the Road Act, the Private Road Act, or other relevant Acts and subordinate statutes, or a road with a location designated by the head of a Si/Gun at the time of building permission, and Article 2 subparag. 15 of the Addenda of the Building Act (hereinafter “former Addenda No. 2”) provides that “A road under the previous provisions at the time of entry into force of this Act, which does not meet the provisions of Article 2 subparag. 15 of the Building Act, shall be deemed a road, notwithstanding the provisions of the same Act, and Article 2 subparag. 15 of the Building Act (amended by Act No. 1942 of Mar. 30, 196) provides that “A road with a width of less than 14 meters and less than 4 meters is already designated by the head of a Si/Gun.

In the event that the Act is wholly amended, as a matter of principle, the provisions of the main sentence of the previous Act and the provisions of the Addenda shall be deemed to be null and void as well as all of the provisions of the previous Act, so the transitional provisions of the previous Act shall be deemed null and void, and in exceptional circumstances, the validity thereof shall not be null and void. The term “special circumstance” referred to in this context includes not only the case where the entire amended Act has a separate provision that the transitional provisions of the previous Act shall continue to apply with respect to the transitional provisions of the previous Act, but also the case where there are exceptional circumstances where the former transitional provisions shall continue to apply with respect to the transitional provisions of the previous Act without invalidation, even if there are no such provision. In such cases, whether there is “special circumstance” shall be determined individually and specifically by comprehensively taking into account the legislative background and purport of the previous transitional provisions, the legislative purport and overall structure of the entire amended Act, whether there

Based on the above legal principles, the provisions of the Building Act concerning roads are examined in light of the above legal principles: (a) although the Building Act was wholly amended by Act No. 4381 on May 31, 1991, which did not stipulate the transitional provisions such as Paragraph (2) of the previous Addenda, it reflects the situation where most of the roads at the time are designated as a road by the head of a Si/Gun, etc., and it is necessary to maintain the transitional provisions such as Paragraph (2) of the previous Addenda; (b) it appears that the actual road, which has already become a road under the Building Act, is not to be changed again into a road under the Building Act that is not a road under the Building Act; and (c) if paragraph (2) of the previous Addenda, it is deemed that the actual road, which has already become a road under the Building Act, has a legal gap in relation to the road, and in particular, there is a problem in protecting the trust and legal stability of the owners of neighboring land and buildings using the road as a passage, it still does not exist to be deemed to be deemed null and void.

B. The lower court determined that the instant land does not constitute a “road” under the Building Act, on the grounds that, although the Dongdaemun-gu Seoul Metropolitan Government ( Address 1 omitted) was a “de facto road,” which had been used as the passage of neighboring residents since before 1975, it did not constitute a “road” even though it was a “de facto road,” which had been used as the passage of neighboring residents since before December 31, 1975. However, there is no evidence to support that the instant land was a road with a width of at least four meters prior to February 1, 1976, or that the head of a Si/Gun had designated its location.

This judgment below is in accordance with the legal principles as seen earlier, and it did not err by misapprehending the legal principles on roads under the Building Act, thereby adversely affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 1

A. (1) Even in cases where a building report is not contrary to the explicit restrictions prescribed by relevant statutes, such as the Building Act, the National Land Planning and Utilization Act, and other relevant statutes, a person holding a building permit may refuse to accept the building report if it is necessary for important public interests to not allow construction (see, e.g., Supreme Court Decisions 2011Du27322, Mar. 15, 201; 2014Du15504, Sept. 15, 2015).

(2) In an appeal seeking the revocation of an administrative disposition, a disposition agency is not allowed to assert as a ground for disposition on the grounds of a separate fact, not the grounds for the initial disposition. However, other grounds may be added or modified to the extent that it is deemed identical to the grounds for the initial disposition and basic facts. The existence of the factual identity in this context is determined depending on whether the social factual relations, which form the basis for the disposition, are identical in basic terms, based on the specific facts prior to the legal evaluation (see Supreme Court Decision 2000Du8684, Sept. 28, 2001, etc.).

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) Before the subdivision, the Dongdaemun-gu Seoul Metropolitan Government ( Address 2 omitted) was originally owned by the same person. On March 21, 1975, the land of this case was divided into 132 square meters, 136 square meters ( Address 2 omitted), 136 square meters ( Address 3 omitted), 38 square meters in large scale, 126 square meters in large scale ( Address 1 omitted), and 172 square meters in large scale ( Address 4 omitted), and around that time, (1), (2), the land was transferred and the transferee constructed a detached house on the ground with each building permit obtained by the transferee; (3) the land of this case was used as a "de facto road," and (3) the underground water of this case was laid as a sewage pipe for neighboring residents.

(2) On August 4, 2016, the Plaintiff knowingly purchased the instant land, and submitted a construction report stating that he/she would build a house of the second floor size on the instant land.

(3) In the event that the Plaintiff’s construction of the instant land is built according to the Plaintiff’s construction plan, (2) the land becomes a road passage through which it can enter a public road, and (1) the land is not a road, but a motor vehicle is prohibited from entering the relevant ground parking lot, and (4) the land is not a road, but is prohibited from entering the auxiliary entrance door of the building on the ground.

(4) On August 19, 2016, the Defendant issued a rejection disposition against the Plaintiff on the ground that “this case’s land constitutes a road under the Building Act and thus is not allowed to be constructed” (hereinafter “instant disposition”).

(5) When the first instance court rendered a judgment accepting the Plaintiff’s claim on the ground that the instant land does not fall under a road under the Building Act, the Defendant added to the Plaintiff’s assertion that “The instant land is a de facto road provided for the passage of neighboring residents after subdivision of 1975. The Plaintiff’s construction of the instant land is contrary to the interests of the community and neighboring residents, and thus, the Plaintiff’s construction of the instant land is not permissible, and thus, the instant disposition is deemed a lawful disposition consistent with the public interest, and the Plaintiff’s building report or the instant administrative litigation institution ought to be deemed an abuse of rights.”

C. Examining the above facts in light of the legal principles as seen earlier, the following determination is possible.

(1) The original reasons for the disposition of this case and the reasons for the disposition additionally asserted by the defendant in the lawsuit of this case are somewhat different from the assessment of the legal nature of the road on the land of this case, and all of them are "road" and the use status of the land of this case cannot be permitted to newly construct a house. Thus, the identity of the factual relations is recognized.

(2) It is recognized that the construction of a new building on the instant land requires significant public interest to prevent neighboring residents from passing through the instant land. Since such public interest request is much more important than the Plaintiff’s exercise of property right, there is room to deem that the Defendant’s additional disposition in the lower court is justifiable and the instant disposition is legitimate.

D. Nevertheless, the lower court determined that the Defendant’s assertion added at the lower court was the main defense claiming the abuse of power, and rejected the main defense of safety without merit, and did not determine whether the grounds for disposition added within this context were justifiable. In so determining, the lower court erred by misapprehending the legal doctrine on the permissible criteria for addition and change of grounds for disposition and the necessity of important public interest, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)