Interpretation of Article 5-2 of the Enforcement Decree of the Urban Planning Act on the objects of construction non-permission within the urban planning zone.

Article 5-2 of the Enforcement Decree of the Urban Planning Act provides that "the head of a Si/Gun shall not grant permission in a case where the permission under the provisions of Article 4 (1) of the Act may hinder the rational utilization of the relevant land or urban planning projects, which are not in conformity with the standards as determined by the Ordinance of the Ministry of Construction and Transportation." Thus, it is insufficient to say that there is a concern that it might interfere with the reasonable use of the relevant land or urban planning projects abstractly, and specifically, it is subject to permission for construction non-permission only in a case where it fails

Article 4 (1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Articles 4 (1) and 17 (2) of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Form and Quality

Supreme Court Decision 92Nu8033 delivered on September 8, 1992

Plaintiff

Head of Gangseo-gu Busan Metropolitan City

Busan High Court Decision 91Gu4119 delivered on April 24, 1992

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

We examine the Plaintiff’s ground of appeal.

1. According to the reasoning of the judgment below, since Article 4 (1) of the Urban Planning Act provides that the head of Si/Gun with the right to permit construction of a building within the urban planning zone under Article 5-2 of the Enforcement Decree of the same Act (1) may interfere with the rational use of the land or urban planning project; (2) whether the permission under Article 17 (2) of the Rules on the Standards for Permission for Change, etc. of Land Form and Quality of Land should be governed by the Building Act; and the former Building Act (amended by Act No. 4381 of May 31, 1991; hereinafter the same shall apply) stipulates that the application for the designation of an industrial complex under Article 5 (1) of the same Act is not likely to interfere with the purpose of the former Enforcement Decree of the Urban Planning Act, such as the prohibition and restriction of construction of a building within the area designated by the provisions of Article 32 of the same Act, for the reason that there is no concern that the application for the designation of the industrial complex under Article 5 (1) of the same Act may be rejected within the same Act.

2. However, Article 5-2 of the Enforcement Decree of the Urban Planning Act provides that "the head of a Si/Gun shall not grant permission in a case where the permission under the provisions of Article 4 (1) of the Act may interfere with the rational use of the land in question or urban planning projects, which is not in conformity with the standards as determined by the Ordinance of the Ministry of Construction and Transportation." Thus, it is insufficient to say that there is a concern that it might interfere with the rational use of the land in question or urban planning projects abstractly and specifically, it shall be subject to non-permission

However, Article 4(1) of the Regulations on the Criteria for Permission for Change, etc. of Land Form and Quality of Land, which is the construction project operator, lists areas for which permission is not granted under Article 4(1) of the Act, and Article 17(2) of the same Rule provides for the regulation on permission for new construction or extension of a building. Therefore, the court below should have deliberated whether the construction of the building in this case does not meet the criteria prescribed in each of the above regulations and determined the legitimacy of the application for construction permit in this case.

Nevertheless, the decision of the court below, as seen above, on the premise that the application for construction permit may be rejected, unless it fails to meet the standards prescribed by the Ordinance of the Ministry of Construction and Transportation, if there is a possibility of impeding the rational utilization of the land in question or the urban planning project, shall not be an error in the interpretation of Article 5-2 of the Enforcement Decree of the Urban Planning Act, which affected

3. Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)