New World Co., Ltd. (Law Firm Squa, Attorneys Lee Young-chul et al., Counsel for the defendant-appellant

Net City (Attorney Seo-tae et al., Counsel for the plaintiff-appellant)

April 1, 2010

1. The defendant's disposition of non-permission to file an application for a building permit with the plaintiff on March 12, 2009 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 12, 2009, the Plaintiff filed an application for permission for the construction of gas stations with the Defendant on February 12, 2009 in order to newly build a gas station with the size of 5,541 square meters and the building area of 341.25 square meters on the instant parking lot (hereinafter “instant parking lot”) on the attached parking lot of 4,00 Mancheon-si, Seocheon-dong (number omitted), and filed an application for the alteration of the use of an attached parking lot with the Defendant on March 5, 200 according to the Defendant’s request for supplementation.

B. On March 12, 2009, the Defendant rendered non-permission (hereinafter “instant disposition”) regarding the Plaintiff’s application for permission to construct the gas station of this case on the following grounds: (a) deepening surrounding traffic condition and not changing the purpose of attached parking lots; and (b) making the Plaintiff’s application.

C. Foods

The vicinity of the site where the construction permit application is filed is geographically concentrated (three places, etc. of e.g., e., e., a river basin, station exhibition, and large retailer) and the traffic-causing facilities are located adjacent to the road connected to the south of the city, the south of the city, and the e.g., the road connected to the depth of the city, in which the traffic congestion occurred frequently, and the various service reports are assessed as the place where the traffic congestion is the highest in the net city;

○ It is judged that if the concept different from the existing gas stations in this area is newly constructed additionally, the surrounding traffic condition will further deepen due to vehicles for gasing so that inconvenience for citizens would be increased;

○ The site of the application is the site permitted as an attached parking lot in order to ensure the convenience and smooth flow of surrounding traffic, and the annexed parking lot is prohibited from being used for any purpose other than the parking lot under Article 19-4 of the Parking Lot Act, and the annexed parking lot is prohibited from being used for any other purpose until this facility is extinguished, in accordance with Article 13(2) of the Parking Lot Ordinance of the YY

○ Nonpermission for the application for permission to construct dangerous substance storage and treatment facilities (a complex civil petition) due to traffic congestion around the application site and the impossibility of changing the attached parking lot for other purposes.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 10, 11, and 12 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Claim as to the reason why the annexed parking lot was not changed for other purposes

According to the proviso to Article 19-4(1) of the Parking Lot Act and Article 12(1)3 of the Enforcement Decree of the same Act, among the instant parking lots, the construction part of the gas station in the instant parking lot shall be permitted to change the use of an attached parking lot. The Defendant issued the instant disposition pursuant to Article 13(2) of the Ordinance on the Parking Lot in the 19-4(1) of the same Act (hereinafter referred to as the “Ordinance”), which provides that “the annexed parking lot shall not be used for any other purpose until this facility is extinguished,” but the instant Ordinance provisions are not effective against the principle of statutory reservation. Thus, the instant disposition based on the provision of the instant Ordinance is unlawful.

(2) As to the ground for deepening the surrounding traffic condition

The plaintiff had lawfully undergone a traffic impact assessment on the construction of the gas station in this case, and the defendant did not raise any objection to the contents of the consultation, and the construction of the gas station in this case is not likely to cause any surrounding traffic problems. Thus, the disposition of this case which rejected the application for the permission of the building of the gas station in this case due to the deepening of surrounding traffic condition, etc. is unlawful.

(3) In addition, the Plaintiff asserts that the protection of small and medium merchants, etc. was a substantial reason that the Defendant caused the instant disposition, and the Defendant did not specify the protection, etc. of small and medium merchants on the grounds of the instant disposition. In an appeal litigation seeking revocation of the disposition, the disposition agency cannot newly assert the grounds that are not specified on the grounds of disposition, and it is sufficient to determine whether the relevant grounds of disposition are illegal in determining whether to revoke the disposition. Accordingly, the Plaintiff’s assertion as to the above should not be determined below.

B. Determination

Unless the application for a building permit is in conflict with any restriction stipulated by the relevant laws, such as the Building Act and the Urban Planning Act, a person having the right to building permit shall grant a building permit under the same Act as a matter of course, and notwithstanding the absence of a serious public interest, the permission granted to a person meeting the requirements shall not be refused for reasons other than those prescribed by the relevant laws and regulations (see Supreme Court Decision 2002Du3201, Apr. 25, 20

Therefore, we examine whether the Defendant’s “unafford modification of the attached parking lots for other purposes” and “affording the surrounding traffic condition” as the grounds for the instant disposition constitute a need for restriction or significant public interest as prescribed by the relevant laws and regulations.

(1) Determination on the reason why there is no change in the annexed parking lot for other purposes

(A) Relevant statutes, etc.

The entries in the attached statutes, etc. are as follows.

(B) Determination

① Determination on the validity of Article 13(2) of the Ordinance

If Article 13(2) of the Ordinance of this case is valid, the part concerning the construction of gas station in the instant parking lot, which is an attached parking lot, cannot be used for other purposes until the Empt Net Point, which is the main facilities, has ceased to exist, and then, the above provision shall be examined first as to whether it is valid.

Although local governments may enact self-government ordinances concerning their own autonomous affairs, which are their own affairs, and the affairs delegated by organizations that are delegated to local governments under the individual Acts and subordinate statutes, matters or penal provisions concerning restrictions on the rights of residents or the imposition of obligations on residents need to be delegated by Acts, and so-called delegation ordinances concerning the delegated affairs of institutions may be established only when they are delegated by ordinances to stipulate certain matters by ordinances under individual Acts and subordinate statutes. Thus, in the event of the enactment of ordinances concerning restrictions on the rights of residents or the imposition of duties on residents or other ordinances corresponding to penal provisions, the enactment of ordinances without such delegation shall be deemed to have no effect (see Supreme Court Decision 2006Hu52, Dec. 13, 2007).

Article 13(2) of the Ordinance of this case provides that "a annexed parking lot established pursuant to paragraph (1) shall not be used for any other purpose until this facility is extinguished," and in cases where the alteration of the use of an annexed parking lot is permitted pursuant to the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1) of the Enforcement Decree of the same Act, matters concerning restrictions on the exercise of property rights by the owner of an annexed parking lot subject to the provision of this Ordinance shall not be permitted until the alteration of the use of the annexed parking lot is extinguished pursuant to the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1) of the

Article 19(1) of the Parking Lot Act provides that an annexed parking lot shall, in principle, be installed inside the relevant facility or on its site. Article 19(4) of the same Act and Article 7(1) and (2) of the Enforcement Decree of the same Act provide that an annexed parking lot may be installed, independently or jointly, in the vicinity of the site of the facility if the annexed parking lot is below the size of 300 parking spaces, and the “scopes in the vicinity of the site of the facility” shall be prescribed by the ordinances of local governments within the scope of 300 meters in straight line or 600 meters in distance from the boundary of the site to the boundary of the annexed parking lot. Accordingly, Article 13(1) of the same Ordinance provides that “in the event of establishing an annexed parking lot solely or jointly pursuant to the provisions of Article 19(4) of the Act, the distance from the boundary of the site to the boundary of the annexed parking lot within a distance of 300 meters in straight line shall be within the distance of 600 meters.”

However, Article 13(2) of the Ordinance of this case provides for the "restriction on the use of an attached parking lot established under paragraph (1)" and it is irrelevant to the "scopes adjacent to the site of a facility" delegated by Article 19(4) of the Parking Lot Act and Article 7(2) of the Enforcement Decree of the same Act. Meanwhile, the restriction on the use of an attached parking lot is clearly defined without delegation to local government ordinances under Article 19-4(1) of the Parking Lot Act and Article 12(1) of the Enforcement Decree of the same Act. Therefore, Article 13(2) of the Ordinance of this case provides for matters concerning the restriction on the rights of residents without delegation by law, and it is invalid against the principle of statutory reservation.

② Determination as to whether the instant parking lot is an annexed parking lot, the change of use of which is permitted

Therefore, we examine whether the instant parking lot is an annexed parking lot where the change of use under the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1)3 of the Enforcement Decree of the same Act is permitted.

Article 12(1) of the Enforcement Decree of the Parking Lot Act provides that the use of an annexed parking lot may be changed pursuant to the proviso to Article 19-4(1) of the Parking Lot Act. Article 12(3) of the Enforcement Decree of the same Act provides that “a parking lot which exceeds the standards for installation of an annexed parking lot or the standards for restriction on installation of the relevant annexed parking lot under Article 6 or 19(10) of the Act (referring to the changed standards for installation or restriction on installation in cases where the standards for installation or restriction on installation are changed due to an amendment to statutes or municipal ordinances after the installation of a facility) and is confirmed by the head of a Si/Gun/Gu for the excessive portion.” Article 6(1) and attached Table 1 of the Enforcement Decree of the same Act provides that one unit

On the other hand, as to whether permission to change the use of a parking lot under Article 12 (1) 3 of the Enforcement Decree of the Parking Lot Act is a binding act or discretionary act, Article 12 (1) 1 and 2 (where the head of a Si/Gun/Gu recognizes that the use of the parking lot in question is practically impossible) of the Enforcement Decree of the Parking Lot Act, there is no phrase of administrative agency's discretion unlike Article 12 (1) 3 of the same Act, and Article 12 (1) 2 of the Enforcement Decree of the Parking Lot Act (where the head of a Si/Gun/Gu recognizes that there is no obstacle to the use of the parking lot).

However, in full view of the evidence mentioned above and the statement in Gap evidence Nos. 13, the sales facility area of Lee E-art 19,655 square meters, and the number of parking spaces of the instant parking lot is indoor 510, outdoor 190, and total 700, and the area of the instant parking station is recognized to correspond to 37 parking spaces, and the parking lot area of the instant parking lot can be seen to meet the installation standards prescribed in Article 6 and attached Table 1 of the Enforcement Decree of the Parking Lot Act if the 132 parking spaces are parked. Accordingly, according to the above facts of recognition, the instant parking lot falls under the "parking lot exceeding the installation standards or installation restriction standards for the relevant parking lot" under Article 12 (1) 3 of the Enforcement Decree of the Parking Lot Act, and can change the use of the attached parking lot if the defendant has obtained confirmation on the excessive part.

Therefore, the defendant should have confirmed the above excessive portion and permitted the alteration of the use of the parking lot of this case pursuant to Article 12 (1) 3 of the Enforcement Decree of the Parking Lot Act, and the alteration of the use of the parking lot for other purposes cannot be a legitimate reason for the disposition of this case.

(2) Determination on the grounds for deepening the surrounding traffic condition

(A) Facts of recognition

① Around November 2008, the Plaintiff filed an application for deliberation on the traffic impact assessment with the Defendant in order to newly build a gas station in this case. On December 30, 2008, the Seoul metropolitan traffic impact assessment committee deliberated and resolved on the Plaintiff’s traffic impact assessment report on the condition that the entry and exit of an outdoor parking lot from North Korea and the entry into the south side of the outdoor parking lot should be changed.

② On January 20, 2009, the Plaintiff submitted a supplementary statement to accept the above conditions to the Defendant. The traffic impact assessment committee notified the Defendant that the Plaintiff’s traffic impact assessment report was finally passed on the 30th of the same month, and the Defendant notified the Plaintiff of the details of the deliberation on February 6 of the same year.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 5 through 9, purport of the whole pleadings

(B) Determination

In light of the following circumstances, Jeonnam-do Traffic Impact Assessment Committee did not have any problem of traffic deepening around the gas station according to the construction of the gas station in this case, and the Plaintiff completed traffic impact assessment on the condition that the construction of the gas station in this case was completed, and there is no evidence that the construction of the gas station in this case is objectively unreasonable. In light of the above facts, it cannot be said that the deepening of surrounding traffic does not fall under the restriction stipulated by the relevant laws and regulations on the construction of the gas station in this case, or that there is a need for significant public interest to deny the construction due to the deepening of surrounding traffic condition. Thus, the disposition of this case which rejected the construction of the gas station in this case due to the deepening of surrounding traffic condition is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the disposition of this case is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judges Kim Byung-hee (Presiding Judge)

(1) Legal number of parking spaces (19,655 square meters ± 150 square meters ± 150 square meters) based on the area of sales facilities 19,655 square meters = 131.03 square meters