2011Revocation of revocation of a building permit

A

Head of Busan Metropolitan City Gun

November 1, 2011

November 25, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On January 10, 2011, the Defendant revoked the disposition revoking the construction permit granted to the Plaintiff.

1. Details of the disposition;

A. On August 21, 2008, B obtained a construction permit for the first-class neighborhood living facilities (retail stores) of the first-class floor on the ground (retail stores) with the size of 5,930 meters on the part of the site among the 18,352m forest land in Busan-gun, Busan-gun (hereinafter “the instant forest”) and the total floor area of 712.80m, from the Defendant, the construction permit for the first-class neighborhood living facilities (retail stores) was extended on September 17, 2009 until August 21, 2010 (hereinafter “the instant construction permit”).

B. On January 5, 2010, the Plaintiff purchased the forest of this case and the rights, status, etc. under the instant building permit from B, and then changed to the Plaintiff on February 5, 2010, via the same electricity company operated by the Plaintiff in the name of the owner. Thereafter, the Plaintiff submitted the commencement report to the Defendant on August 13, 2010, which was prior to the commencement date of the instant construction, and was accepted on the 16th of the same month.

C. On December 9, 2010, the Defendant: (a) failed to start construction within one year from the date of the instant building permit (the deadline for commencement) or started construction; (b) notified the Plaintiff of the prior notice of disposition that the completion of construction permit is impossible and held on December 22, 2010; and (c) did not start construction until the commencement date as stipulated under Article 11(7)1 (hereinafter “instant provision”); (d) of the Building Act, the Defendant revoked the instant building permit (hereinafter “instant disposition”) on the ground that the Plaintiff did not start construction by the commencement date as stipulated under Article 11(7)1 (hereinafter “instant provision”); (e) the Defendant, upon the first application of the instant building permit, filed an application with the Plaintiff for the construction permit on August 208, 201, which was deemed to have been completed on July 7, 2010; and (b) thus, (c) obtained the instant construction permit by means of the instant construction permit, and thus, did not constitute “an unlawful disposition” under Article 13(13(1)1) of the National Land Planning and Utilization Act.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 6, 11 evidence, purport of whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

(1) As long as the instant commencement report is accepted within the period of commencement, the construction shall be deemed to have commenced.

(2) Unless otherwise, the instant building permit was already commenced on December 8, 2010, which was prior to the instant disposition, and thus, cannot be revoked. Furthermore, even if the commencement of construction did not reach the commencement of construction, there is a justifiable reason for the suspension of construction due to the Defendant’s unlawful and unreasonable discontinuance of construction.

(3) Even if it falls under the ground for revocation of the building permit, the Plaintiff submitted and accepted the construction report within the period for commencement of the instant construction permit, and the Plaintiff thought that the Plaintiff could lawfully proceed with the construction work without any mentioning any mentioning about the revocation of the building permit of this case from the Defendant, and continued the construction work on the ground that the Defendant ceased the construction work on the ground of the period for permission for mountainous district conversion that is irrelevant to the ground for the instant disposition, and the Plaintiff paid a large amount of worth KRW 2 billion, such as land purchase price, in relation to the acquisition and construction of the instant building permit, the instant disposition was excessively excessive and abused its discretion

(b) Related statutes;

/Building Act

Article 11 (Building Permits) (1) A person who intends to construct or repair a building shall obtain permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu.

(7) If a person who has obtained permission under paragraph (1) falls under any of the following subparagraphs, the competent permitting authority shall revoke the permission: Provided, That in cases falling under subparagraph 1 and it is deemed that justifiable grounds exist, the period may be extended by up to one year:

1. The construction is not commenced within one year from the date on which the license was obtained; or

(1) According to the instant provision, where one year has passed since the building permit was granted or the period of commencement has been extended, a building permit must be revoked if the construction is not commenced within that period. Furthermore, in order to recognize that a building was "the commencement of construction" under the said provision, it is not sufficient to submit a preparation plan necessary for the commencement of construction, namely, boundary restoration surveying, ground investigation, conclusion of a contract for construction of a building or technical guidance, removal of an existing building, or a report on the commencement of construction. It should be deemed that the construction of a new building was commenced only when the excavation work for the construction of a new building was commenced after completing a series of administrative procedures in the construction process (see, e.g., Supreme Court Decisions 94Nu7058, Dec. 2, 1994; 195, 95Nu7857, Dec. 26, 196).

Here, excavation work or ground excavation means the act that can at least be seen as the actual execution of the construction work for the construction of the building in question and that the minimum site for the building to be constructed is sold to the extent that it can be maintained.

Meanwhile, a building permit shall be revoked if a construction work does not commence within the extended period of commencement. However, even after the expiration of the above period, a building permit may not be revoked solely on the ground that the commencement was delayed, unless it is deemed necessary for special public interest (see Supreme Court Decision 85Nu93, Oct. 22, 1985).

(2) Whether acceptance of the commencement report can be seen as commencement of construction works

However, such commencement report and commencement report should be distinguished, and in light of the legal principles as seen earlier, only the submission of the commencement report cannot be viewed as the commencement report under the provisions of this case, and the legal effect that recognizes the commencement of construction by accepting the commencement report is not effective since the defendant accepted the commencement report within the period for the commencement of construction of this case. Thus, the plaintiff's above A. (1) argument is without merit.

(3) Whether there was a justifiable reason for failure to start the construction work

A) However, according to Gap evidence Nos. 13 through 17, Eul evidence Nos. 13 through 17, Eul evidence and video, witness D, E's testimony, and the result of the on-site inspection of this court and the purport of the whole pleadings, the permission of this case is a mountain village where relatively sloped and considerable trees were involved, and thus, construction according to the construction permission of this case requires excavation to the minimum site that can maintain the building of this case through mass cutting and cutting of trees and cutting. However, although the construction project of this case was conducted, it is difficult to view that the construction project of this case was conducted without removing, and it is extremely difficult to view that the construction project of this case was conducted on the ground that some of the slopes adjoining the slopes of the beginning part of the building site of this case, or that there was no evidence to view that the construction project of this case was conducted on the ground that part of the excavated part of the building site of this case was conducted in comparison with the construction permission of this case, and there was no other evidence to view that the construction project of this case was performed on the building area of this case 170m.

Furthermore, as alleged by the plaintiff, it is difficult to commence construction works due to the defendant's illegal order for discontinuance of construction works.

According to the above evidence and evidence evidence Nos. 9 and 18 through 22, the plaintiff applied for a new building permit to construct a building in another forest adjacent to the application site of this case on March 29, 2010, which was prior to the deadline for the commencement of the construction, and the application for the construction permit was withdrawn on June 22, 2010 due to lack of documents, etc., and thereafter, the plaintiff submitted a report of construction commencement on August 13, 2010 where the deadline for the commencement of the construction of this case was imminent and did not appear to have any movement. As such, the plaintiff did not immediately commence the construction permit of this case and started the construction of this case on November 10, 2010 after concluding a contract on the timber of this case with the land of this case, and again started the construction permit of this case on the date of the commencement of the construction permit of this case without any lawful removal of trees or the extension of construction permit of the construction permit of this case on the date of the commencement of the construction permit.

Therefore, the plaintiff's above A. (2) argument is without merit.

(4) Whether the discretion is deviates or abused or abused

The instant provision provides that the construction permit should be revoked if the construction work is not commenced within the prescribed period. Therefore, the revocation of the construction permit is a binding act in which the discretion is not granted to the revocation of the construction permit. Therefore, the Plaintiff’s assertion under the premise that the revocation of the construction permit in this case is a discretionary act cannot be accepted.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit.

The presiding judge, judges and assistant judges;

Judges Park Young-young

Judges Kim Gin-Un