[1] Whether an extension under the Building Act is included in the subject of permission under Article 35 (1) 2 of the Multi-Family Housing Management Act (affirmative)

[2] The case holding that in a case where the defendant was prosecuted on charges that he installed an outdoor stairs of light steel framed with an area exceeding one meter each, and extended the apartment house without permission by installing an outdoor stairs of light steel framed with an area exceeding three square meters in the outside space of multi-family housing without permission from the competent authority, the extension under Article 2 subparagraph 2 of the Enforcement Decree of the Building Act can be subject to permission from the competent authority pursuant to Article 35 (1) 2 of the Multi-Family Housing Management Act if the building area, etc. increases due to the act of installing outdoor stairs

[1] Article 35(1)2 of the Multi-Family Housing Management Act and Article 35(1) [Attachment 3] of the former Enforcement Decree of the Multi-Family Housing Management Act (amended by Presidential Decree No. 30147, Oct. 22, 2019); however, while the Multi-Family Housing Management Act provides that "the meaning of terms not otherwise provided for in this Act shall be governed by the Housing Act, without any definition provision on the meaning of extension of a certain multi-family housing," it shall be governed by Article 2(2) of the Multi-Family Housing Management Act (amended by Presidential Decree No. 30147, Oct. 2, 2019). However, the Housing Act applicable mutatis

Meanwhile, Article 2(1)1(b) of the Multi-Family Housing Management Act and Article 2 subparag. 1(1) of the Housing Act premise that the definition of the Building Act can apply mutatis mutandis to matters not defined by itself, under the relevant laws and regulations, including Article 2(1)1(b) of the Multi-Family Housing Management Act. Article 2(1)2 of the Building Act defines a structure on which a building is built in the land, with a roof and columns or walls, and facilities appurtenant thereto, an office, performance place, shop, garage, warehouse, and other matters prescribed by Presidential Decree. According to Article 2 subparag. 2 of the Enforcement Decree of the Building Act, an extension means to increase the building area, total floor area, number of floors, or height of a building in the site where an existing building is located. Accordingly, an extension under the Building Act is included in the subject of permission under Article 35(1)2 of the Multi-Family Housing Management Act, unless there are special circumstances in terms of systematic and logical interpretation principle.

[2] In a case where the defendant was prosecuted on charges of extending multi-family housing without obtaining permission from the competent authority by installing an outdoor stairs of light steel framed structure, the length and height connecting the second floor and the ground to the outside space of multi-family housing exceeds one meter each, and the area of which is about three square meters, the case affirming the judgment below convicting the defendant of extending multi-family housing without permission from the competent authority, on the ground that the defendant's act of installing multi-family housing is an extension of the building area, total floor area, number of floors, or height due to the defendant's outdoor stairs, on the ground that the above outdoor stairs installed by the defendant are not equipped with roof, columns, walls, etc., in light of the above purpose of use and current status, etc., it is reasonable to view it as a facility attached to the existing building and constitutes a building under Article 2 (1) 2 of the Building Act, and thus, it can be subject to permission from the competent authority under Article 35 (1) 2 of the Multi-Family Housing Management Act.

[1] Articles 2(2) and 35(1)2 of the Multi-Family Housing Management Act, Article 35(1) [Attachment 3] of the former Enforcement Decree of the Multi-Family Housing Management Act (Amended by Presidential Decree No. 30147, Oct. 22, 2019); Article 2(1)2 of the Building Act; Article 2 subparag. 2 of the Enforcement Decree of the Building Act / [2] Articles 2(2) and 35(1)2 of the Multi-Family Housing Management Act; Article 35(1) [Attachment 3] of the former Enforcement Decree of the Multi-Family Housing Management Act (Amended by Presidential Decree No. 30147, Oct. 22, 2019); Article 2 subparag. 2 of the Building Act

Defendant

Defendant

Attorney Im Young-young

Jeonju District Court Decision 2020No1477 Decided January 26, 2021

The appeal is dismissed.

The grounds of appeal are examined.

1. Whether the defendant's act is subject to permission under the Multi-Family Housing Management Act (Ground of appeal No. 1)

(a) Concept of extension subject to permission under the Multi-Family Housing Management Act;

Article 35(1)2 of the Multi-Family Housing Management Act, and Article 35(1) [Attachment 3] of the former Enforcement Decree of the Multi-Family Housing Management Act (amended by Presidential Decree No. 30147, Oct. 22, 2019) provides that “The Multi-Family Housing Management Act provides that “the meaning of terms not otherwise provided for in this Act shall be governed by the Housing Act,” without providing any definition on the meaning of extension, shall be governed by Article 2(2) of the Multi-Family Housing Management Act.” However, there is no definition provision on extension in the Housing Act applicable mutatis mutandis.

Meanwhile, Article 2(1)1(b) of the Multi-Family Housing Management Act and Article 2 subparag. 1(1) of the Housing Act premise that the definition of the Building Act can be applied mutatis mutandis to matters not defined by itself. Article 2(1)2 of the Building Act provides that, among structures on which buildings are built on land, there are a roof and columns or walls, and facilities appurtenant thereto, offices, performance halls, shops, garages, warehouses, and other matters prescribed by Presidential Decree. According to Article 2 subparag. 2 of the Enforcement Decree of the Building Act, extension means to increase the building area, total floor area, number of stories, or height of a building on a site where an existing building is located. Therefore, it is reasonable to interpret that the extension of the Building Act is included in the subject matter of permission under Article 35(1)2 of the Multi-Family Housing Management Act, unless there are special circumstances in terms of systematic and logical interpretation principle.

B. Determination on the instant case

According to the reasoning of the lower judgment and the evidence duly admitted, the Defendant is recognized to have been used as a passage connecting the above apartment and the above ground on January 2019, 2019, where the length and height of the apartment in the outer space of the apartment as indicated in the lower judgment on January 1, 2019 exceeds 1m each, and where the area of the light-weight steel framed is approximately 3mm2,00 square meters.

Even if the above outdoor stairs installed by the Defendant do not have the roof, columns, walls, etc., it is reasonable to view that such act constitutes a building as a facility attached to an existing building under Article 2(1)2 of the Building Act, in light of the above purpose of use, status, etc. Therefore, if the building area, total floor area, number of floors, or height has increased due to the Defendant’s outdoor stairs installation, it may be an extension under Article 2 subparag. 2 of the Enforcement Decree of the Building Act and subject to permission of the competent authority pursuant to Article 35(1)2 of the Multi-Family Housing Management Act.

On the same premise, the lower court maintained the conclusion of the first instance court that determined that the Defendant had performed an extension of multi-family housing without permission from the competent authority on the ground that the building area, etc. was increased due to the Defendant’s

The lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on extension.

2. Whether the Defendant’s act constitutes a justifiable act (ground of appeal No. 2)

In light of the relevant legal principles and records, we affirm the judgment of the court below that the defendant's act does not constitute a justifiable act for the reasons stated in its holding. In so doing, the court below did not err by misapprehending legal principles

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Man-sung (Presiding Justice)