[1] The purport of Article 49 of the Building Act

[2] Whether permission for division of land by an administrative agency is necessary for division of land according to a final judgment (negative)

[1] The provisions of Article 49 of the Building Act are limited to the ratio, etc. of the above building size to the horizontal water of the site, not to purport that the division of the site itself and the transfer of ownership are restricted by legitimate cause.

[2] The head of a Si/Gun shall, in principle, obtain permission in advance from the head of a Si/Gun in the case of dividing land which falls short of the standards for minimum building area, building-to-land ratio, vacant land in a site, width of partitioned land, etc. within an urban planning zone under the Building Act and the Building Bylaws, and the Urban Planning Act and subordinate statutes. However, in the case of dividing land according to a final judgment of the court, the land can be divided

[1] Article 49 of the Building Act / [2] Article 49 of the Building Act, Article 4 (1) 3 of the Urban Planning Act, Article 17 (1) of the Cadastral Act

[1] [2] Supreme Court Decision 92Nu15949 delivered on June 14, 1994 (Gong1994Ha, 1970) / [1] Supreme Court Decision 92Nu7542 delivered on December 8, 1992 (Gong1993Sang, 470) / [2] Supreme Court Decision 96Nu5919 delivered on November 15, 196 (the same purport)

Plaintiff

Head of Dongdaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 95Gu33568 delivered on April 12, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

Article 49 of the Building Act is a provision that limits the ratio, etc. of the above building size to the horizontal water of site and does not purport to limit division and transfer of ownership due to legitimate cause (see Supreme Court Decision 92Nu7542 delivered on December 8, 1992), Article 4 (1) 3 of the Urban Planning Act, Article 5 (4) 2 and 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13684 delivered on July 1, 1992), Article 19 (5) of the Rules on Standards for Permission for Change, etc. of Land Quality and Quality (amended by Ordinance No. 573 delivered on December 9, 1994), Article 17 (1) of the Cadastral Act (amended by Ordinance No. 4869 delivered on January 5, 1995), and Article 4 (1) 26 of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 15681, Apr. 16, 1995).

According to the facts established by the court below, the plaintiff occupied part of the land of this case owned by the state and the non-party as the basis for the building, and filed a lawsuit against the state and the non-party for the execution of the procedure for the registration of transfer of ownership based on the completion of the acquisition by prescription, and the judgment becomes final and conclusive upon winning the judgment. The plaintiff filed an application for land division under the Cadastral Act with the defendant around August 1995 to conduct the registration of transfer of ownership after dividing the land in accordance with the above final and conclusive judgment. As such, even though the proviso of Article 5 (3) of the Enforcement Decree of the Urban Planning Act prior to the amendment, which is an exception to the land division by final and conclusive judgment, was deleted by the above amendment, the above amendment shall be made at least after the enforcement of the amended intellectual property law and the Enforcement Rule thereof, even if the above application by the plaintiff falls short of the standard for the land size, minimum building-to-land ratio, vacant land within the site, and the width of the land.

Although there is no inappropriate part in the reasoning of the judgment of the court below in applying the above amended provisions of the Enforcement Decree of the Cadastral Act and the Enforcement Rule of the Cadastral Act, such as where the cause of division on the final judgment is divided into a juristic act and a case where the cause of division on the final judgment is not caused by a juristic act without any basis, the conclusion that the disposition of this case which rejected the application for land division according to the final judgment is justifiable, and there is no error in the misapprehension of legal principles

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.

Justices Jeong Jong-ho (Presiding Justice)