(영문) 서울행정법원 2008.11.11.선고 2007구합42713 판결

The Defendant’s decision on January 23, 2007 on the amendment of the urban management plan, revoked the part that designated the total sum of 30,176 of each land as a historical culture aesthetic district (the Plaintiff appears to be a clerical error in the statement of February 1, 2007).

Reasons

1. Details of the disposition;

A. On April 26, 1978, Plaintiff C Co., Ltd. purchased 30,176 square meters in total on the ground, including the land of this case, 30,176 square meters in total, 135, 70 square meters in total, 6, 542, 542, 3, 944, 500, 30, 176 square meters in total, 30, 176 square meters in total, 30, 176 square meters in total (hereinafter referred to as the "land of this case") on the ground of the Jongno-gu Seoul Metropolitan Government X-dong - 19, 366, 8 square meters in total, 35, 170, 341, 6, 341, 5, 542, 3, 9444, 5, 18, 2.

After that, the remaining plaintiffs acquired shares in the real estate of this case, and the plaintiffs used E-style houses as co-owners of the real estate of this case.

B. On July 22, 1983, the Defendant designated the Jongno-gu Seoul Metropolitan Government Scenic Zone (the name was changed to a historical and cultural aesthetic zone on July 1, 200; hereinafter referred to as the " Historical Culture Scenic Zone"), which was (the name of the district was changed to Samdong-dong, Samdong-dong, Ansan Dong-dong, Ansan Dong-dong, Ydong-dong, Ydong-dong, X-dong, Dong-dong, Dong Dong-dong, Dong-dong, 645,000 meters as a historical and cultural aesthetic zone (the name of the district was changed to the historical and cultural aesthetic zone; hereinafter referred to as the "the historical and scenic zone"). At the time, the Defendant was excluded from the historical and cultural district (the land of this case, etc.), including the land of this case, and the land of this case and the land of this case was designated as the 97th Eastdong-dong, Ydong-dong (hereinafter referred to as the "land of this case").

C. On May 2005, the Defendant established a plan to promote long-term development of North Korea, including the content that the instant land, etc. excluded from the historical and cultural aesthetic district should be included in the areas of historical and cultural aesthetic district in order to maintain and manage the aesthetic view of North Korea, Gyeong-do, and Gouk-do.

D. The Defendant, on September 6, 2006, pursuant to the Seoul Special Metropolitan City Public Notice 2006 - 1309, perused and publicly announced a change in the special-purpose district of the urban management plan containing the above contents, listened to the Plaintiffs’ objections and opinions on September 2006 and October 17, 2007 through the appellate court of the Seoul Metropolitan City Urban Planning Committee on January 23, 2007, there is a need to protect the historical landscape of the land, etc. as an area located between two ancient cities (Seoul Metropolitan City; Changnam); it is necessary to 200,000 square meters of the land in this case under Article 37 of the National Land Planning and Utilization Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter referred to as the “National Land Planning Act”) and Article 37 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 3715, Jan. 27, 2007).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Eul evidence 2-1 to 6, Eul evidence 3-1 to 4, Eul 5, and 6-1, 2, Eul evidence 7, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Non-existence of the grounds for the disposition (it is impossible to achieve the purpose of the disposition)

(A) E-style houses are located at the outermost of the north village, and they are located far away from the densely concentrated area of the Korean-style houses, and the surrounding area is continuously developed for more than 30 years after E-style houses are built and virtually commercial areas.

Since it has changed as a result, E-style has a significant impact on the aesthetic view of cultural heritage.

(B) The instant land is adjacent to a six-lane road from each other, is an inappropriate place in the place of residence, and is constructed on the fourth or lower-rise building, and does not secure the low-rise landscape in North Korea. This case’s disposition also goes against the purpose of the modern urban planning, which reflects regional characteristics, with the three-dimensional urban management aimed at the management of the city.

(C) Therefore, the instant land cannot be deemed as belonging to “a district necessary to maintain and manage the fine view of cultural properties and buildings, etc. which are worthy of cultural protection,” and the instant disposition is unlawful even if it does not comply with the purpose of designation as a historical cultural aesthetic district, making it impossible to achieve the purpose of its disposition.

(2) A deviation from or abuse of discretionary power;

(A) There is a need to newly construct and rebuild the instant land in the nearest future more than 20 years after the new construction. The instant disposition only leads to new construction and reconstruction of the building with the fourth floor height pursuant to Article 45(1) of the Urban Planning Ordinance of the Seoul Special Metropolitan City, and the property loss suffered by the Plaintiffs is about KRW 10 billion (other than the plaintiffs' work quality, inevitable relocation of its employees, etc.). However, as seen earlier, the instant land has a considerable distance from the traditional traditional Korean house concentration area, and the traditional Korean house neighboring the instant real estate has less practical protection value. In light of the above, there is no need to additionally designate the instant land as an aesthetic district for historical culture, and there is no need to additionally designate the instant land as a traditional Korean house, and the public interest, which is the landscape of North Korea's village to be protected due to the instant disposition, as well as the public interest.

(B) As above, the Defendant did not take into account the harm of the private interest that the Plaintiffs suffered in the instant disposition, or violated the principle of proportionality by weighing and balancing the infringement to the extent that the infringement of the private interest is far more than that of the public interest resulting therefrom, and thus, the instant disposition was unlawful by deviating from and abusing discretion.

(3) Infringement of the essential contents of the property right

The defendant limits the plaintiffs' property rights through the disposal of this case without any compensation for the purpose of accepting the real estate at a low price. This is unlawful as it infringes on the essence of property rights guaranteed by the Constitution.

(b) Related statutes;

As shown in the attached Form.

(1) The basic plan, etc. for the origin of the North Korean village and the development of the North Korean village;

(A) North Korea's village refers to Jongno-gu Seoul, Jongno-gu, U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S., U.S.

(B) From around October 200, the Seoul Special Metropolitan City Government Development Institute started policy research on the North Korean village management plan, and drafted policies for the North Korean village development through cooperation research with residents, administrative agencies, experts, and experts, and proposed this to the Ulsan Special Metropolitan City. Based on this, the Seoul Special Metropolitan City confirmed the "comprehensive book for the North Korean village" around October 200.

On the basis of this, from July 2001, the Korea Research Institute for Human Resources Development established "the main plan for the development of the North Korea's village" containing specific strategies and action plans, and based on this, the support for the registration system and the renovation of the hanok, the purchase and utilization of hanok, and the development of the North Korea's village, the core of which is the improvement of the North Korea's environment.

(C) After the implementation of the Korean-style registration system and the renovation and repair support, 358 Korean-style Korean-style houses were registered until December 2005, and 240 Korean-style Korean-style houses were completed among them.

At present, 204, 10, 903, and 453 households are living in the north village, and a total of 2,434 cases are 1,173 dong houses equivalent to 48% among them. 1,173 dong houses, including hanok, account for 63% of the building and 81% of the building with 43 buildings with 5 floors or more.

D) Meanwhile, on October 31, 1977, the area of 418,50 meters between the circuits and the Gyeongdo-do-si, which is thewest side of the North Korean village, was designated as the district of the highest height on October 31, 197 (at that time, 10 meters or less). On July 4, 1994, the highest height level was reduced to 16 meters or less, leading up to the date. On July 22, 1983, the area of 645,00 square meters, excluding the instant land, etc., was designated as a historical culture aesthetic district.

After the disposition of this case, the Defendant, around July 2008, designated the land, etc. of this case as a traditional Korean-style house concentration area by the Seoul Special Metropolitan City Notice No. 2008- 1400.

(2) The current status, etc. of cultural heritage in North Korea;

(a) The current status of cultural heritage in North Korea is as follows:

A person shall be appointed.

(B) In addition to the historical place in North Korea, there are also a sipater, a private sipater, a ancient sipater, an inner ancient sipater, a sipater, a red sipater, red sipater, a private city, a noble sipater, a repater, a sipater, a historic sipater, etc.

(3) Current status of the instant land

(A) E-styles are located at the end of the south east of the north village, adjoining to east by e.g., six-lane south-west, and adjoining to east by having the Changnam-do and west-do. Meanwhile, YYdong 181 to 6, 542 to 5m of the land in this case is currently being used as a park, and there is a private land 296, which is a national designated cultural heritage within the instant land.

(B) In addition, the instant land was historically based on Ginwon (medical institutions for ordinary people in the Joseon Dynasty), Sa city (government office in charge of material such as rice and valleys in the ancient cities in the Joseon Dynasty), Red Sagle (government office in charge of management of the ancient cities in the Joseon Dynasty, private management, disposal of the literature, and consultation of king), and Sagle (government office in charge of diplomatic documents in the Joseon Dynasty).

(4) Regulation due to the instant disposition

(A) The instant land was subject to the restriction on the floor area ratio of 400% as a quasi-residential area before the instant disposition, and was subject to the restriction on height under Article 14-2 of the Seoul Special Metropolitan City Ordinance on the Protection of Cultural Properties (Attached Table 1) concerning the ornamental Cheongcheon Park, while the instant disposition was subject to the restriction on height under Article 45(1) and (2) of the Seoul Special City Urban Planning Ordinance on the Protection of Cultural Properties (where the permitting authority deems that the appearance, such as the form of the building, color, etc., is to be constructed in conformity with the purpose of designating the district and thereby significantly improve the aesthetic view of the city), thereby being subject to the restriction on the floor area ratio of 240% (60%) or 360% (60%) of the quasi-residential area (60%) or 360% (60%) of the floor area ratio.

(B) Prior to the instant disposition, the Plaintiffs’ maximum 12th floor and total floor area on the ground of the instant land.

Although it is possible to build a new building with 204, 945, 20m, and 60% of floor area ratio 392, after the instant disposition, it is only possible to build a new building with 4th floor, total floor area 135, 116.80m, floor area ratio 218.05% of floor area ratio 218.

(5) Data pertaining to the assessment of damages due to the instant disposition

In calculating the amount of damages due to the disposition of this case, an appraisal agency has some problems in light of the fact that "the Market Access Act (the method of deriving the value of the real estate by analyzing the most similar sale cases) has not many cases of actual sale and purchase, and that the existing construction water can be used during the economic useful life." In the case of the Opportunities Act (the Act which considers the amount at a discount of future rent loss as the decline in the price of land), there is controversy in that the part to be used as the present park is assumed as the site. Considering the fact that the compensation approach Act (the method of calculating the compensation compensation amount due to the restriction on construction according to the disposition of this case, the Electric Utility Act, the Urban Railroad Act, etc. which provides the compensation standards for the above five stories or more shall apply mutatis mutandis to the above ground space and underground space), and the appraisal result of this case shall be calculated as the price decline of the land of this case as the 100 million won by reflecting some results of the Market Access Act and the Act on Access to Expenses.

[Grounds for Recognition] The absence of dispute, Gap evidence 3, Eul evidence 4-1 through 40, Eul evidence 5-1 through 60, Eul evidence 6, 8, Eul evidence 1-1 through 24, Eul evidence 2-1 through 6, Eul evidence 3-4, Eul evidence 5, Eul evidence 6-1 through 14, Eul evidence 1, 2, Eul evidence 7 and 8, Eul evidence 10-1 through 14, Eul evidence 13-1, 2, Eul evidence 15, Eul evidence 16, Eul evidence 17-1, Eul evidence 2-2, Eul evidence 17, Eul evidence 17-2, Eul evidence 2-1, each of the field of pleading, the purport of the whole pleadings of this court, Eul evidence.

D. Determination

(1) Whether there is no ground for disposition (it is impossible to achieve the purpose of disposition)

In light of the following circumstances revealed in the facts of the recognition as such, i.e., (i) North Korea is the center of the city of history in 600 and the traditional Korean-style houses located in the downtown, and (ii) the necessity of preservation as a small historical asset that shows a long-term historical object formed within the downtown, and (iii) the land of this case has been designated as a traditional Korean-style house site in July 2008, as well as its traditional Korean-style house site in addition, even if the land of this case was developed into a six-lane road and its neighboring commercial areas, and thus, it is highly necessary to maintain the aesthetic view of the land of this case, excluding the historical value of the land of this case, as it is located in the south-dong area of the north Korean-style village and its neighboring area, and there is a lack of historical value as well as the historical value of the land of this case, which is contrary to the purpose of protecting the cultural heritage of this case.

It cannot be deemed impossible to do so.

(2) Whether or not the discretion has been exceeded or abused

(A) The term "administrative plan" means an administrative plan that is implemented based on a high level of professional and technical judgment in accordance with an urban policy for the sound development of the city and the promotion of public welfare within the scope of the statute by integrating and adjusting the number of administrative agencies related to each other to achieve a specific administrative objective such as the establishment, maintenance, and improvement of a city based on a professional and technical judgment. The urban management plan decision and modified decision are an administrative plan that is implemented by an administrative agency based on a high level of professional and technical judgment in accordance with the urban policy. The relevant laws and regulations, such as the National Land Planning Act, only stipulate abstract administrative goals and procedures, but do not have any specific provisions regarding the contents of the administrative plan. Thus, the administrative body has a relatively broad freedom in drafting and determining the specific administrative plan, but such freedom of formation is not unlimited, but should be fairly compared not only between the public and private interests, but also between the public and private interests, and thus, it should be determined that the administrative plan is unlawful.

(3) In the instant case, it is impossible to construct the building of the same 15th floor as the present, because it is subject to the restriction on the use rate of 400% or the height restriction under the religious regulation, even if this case’s building was not disposed of, and if a new building is constructed, it is impossible to construct the building at the same 15th floor. ② The floor area ratio of the E-style house is 341.6%, and the floor area ratio of the E-style house is 360% (6%) of the height restriction under the instant disposition, and it is difficult to view it as an excessive restriction on property rights. ③ The Plaintiffs are using and benefiting the E-style house.

In calculating the amount of damages caused by the instant disposition, it is not subject to any direct restriction. ④ In the case of the Market Access Act and the Act on Access to Expenses, there are the same problems as pointed out prior to the appraisal result in the case of the Act on Access to Compensation and the Act on Access to Expenses, and it is not reasonable to use at least five stories despite the fact that the appraisal decision under the Act on Access to Compensation and the instant disposition is not immediately used for not less than five stories. Therefore, the amount of damages equivalent to KRW 10 billion claimed by the Plaintiffs is difficult to receive, as it is, the damages suffered by the Plaintiffs due to the instant disposition. ⑤ In view of the fact that there is no difference between the value of buildings constructed prior to the instant disposition and the value of buildings that can be newly constructed by the restriction on height and floor area ratio, it is difficult to view the difference in the floor area ratio of the Plaintiffs’ present value at the time of the instant disposition, such as the difference between the value of buildings and the value of buildings that can be newly constructed by the instant disposition and the interests that the Defendant did not have to be considered as above.

(3) Whether the essential content of the property right is infringed

A. The essential content of a property right refers to the substantial or root elements of a property right’s core elements, and it is a case of infringing on the essential content of a property right. It is a case of infringing on the essential content of a property right, which leads to a situation where the right of private property cannot be achieved by the extreme purpose of guaranteeing the property right because the right of private property is lost or decrised (see, e.g., Constitutional Court Order 88HunGa13, Dec. 23, 1989).

(2) As seen in the above facts, in light of the following facts: (a) the Defendant made the instant disposition according to the necessity of public interest; (b) there is not sufficient evidence to acknowledge that the Defendant made the instant disposition for the purpose of acquiring the instant real estate at a low price; and (c) there is no other evidence to acknowledge it; (b) the instant disposition does not immediately mean that the instant real estate was expropriated or used by the Defendant; and (c) the Plaintiffs’ damages arising from the instant disposition are limited to the floor area ratio; and (d) the Plaintiffs’ right to use, benefit from, and disposal of the instant real estate are not restricted or deprived of the right to dispose of, the instant disposition is merely a limitation on property rights to the extent that it still remains reserved to the Plaintiffs (see Supreme Court Decision 9Du765, May 29, 2001).

(4) Sub-decisions

Therefore, all of the plaintiffs' arguments are without merit, and the defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiffs' claims are without merit and all of them are rejected, and it is so decided as per Disposition.

Judges

Justices Kim Jong-hwan

Judges Croat

Judge Lee Lee Sang-hoon

Note tin

1) At the same time, a specific-use area of 759 and 987 meters in north village was changed from a general residential area to a Class-I general residential area.

The land of this case belongs to the quasi-residential area.

2) Changnam-do was registered as the UNESCO World Cultural Heritage on December 12, 1997.

3) From the example, the above area was called 'North Korean village' in the sense of Cheongcheon-ro and the upper dynamics of the Cheongcheon-ro.

4) Within the instant land

5) Damages in accordance with Market Access Act: 1,6448,9160,000 won, if any, and 1,520,000 won, if any: 1,15.2 billion won

4. 7.8 million won, and the amount of damages 1,07.2 billion won in the case of an access to compensation, 3,9370,000 won in the case of a compensation law.

6) For the fourth floor, the floor area ratio: 240% (60% of the building-to-land ratio x 4)

Site of separate sheet

Related Acts and subordinate statutes

National Land Planning and Utilization Act (amended by Act No. 8852 of February 29, 2008)

Article 37 (Designation of Special-Purpose Districts)

(1) The Minister of Construction and Transportation or the Mayor/Do governor shall determine the designation or alteration of specific use districts falling under any one of the following subparagraphs:

2. Fine view district: Districts needed to maintain the fine views;

3. Height district: District in need of regulating the minimum limit or maximum limit on the height of buildings in order to create pleasant environments and to make a high-level utilization of land and its improvements;

(2) The Minister of Construction and Transportation or a Mayor/Do Governor may, when it is deemed necessary, re-designated or modify a special-purpose district under each subparagraph of paragraph (1) by subdividing it as an urban management planning decision.

(3) If deemed necessary for regional conditions, the Mayor/Do Governor may determine the name and purpose of the special-purpose district, and matters concerning prohibition and restrictions on construction and other acts, etc. by Municipal Ordinance of the relevant Si/Do in accordance with the standards prescribed by Presidential Decree, and may determine the designation or alteration of the special-purpose district other than the special

Article 78 (Use of Enemy within Special-Purpose Areas)

(1) The maximum limit on the floor area ratio of a special-purpose area designated under Article 36 shall be determined by the Municipal Ordinances of the Special Metropolitan City, Metropolitan Cities, Sis, or Guns within the limit falling under each of the following subparagraphs in consideration of the area under their jurisdiction, population size, characteristics

1. Urban area:

(a) Residential area: Not more than 500 percent;

(b) Commercial area: Not more than 1,500 percent;

(d) Green area: Not more than 100 percent;

Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 2009 on April 19, 2007)

Article 31 (Designation of Special-Purpose Districts)

(1) The term "other districts prescribed by the Presidential Decree" in Article 37 (1) 11 of the Act means the following districts:

(2) The Minister of Construction and Transportation or a Mayor/Do Governor may subdivide and designate a scenic district, aesthetic district, height district, conservation district, facility protection district, village district, and development promotion district in accordance with the determination of an urban management plan pursuant to Article 37 (2) of the Act as follows:

2. Aesthetic district:

(a) Central place aesthetic district: A district required for keeping and controlling the scenery of areas with high level of land utilization; (b) A historical culture aesthetic district: A district required for keeping and controlling the scenery of cultural properties and buildings with high level of cultural conservation values;

(c) General aesthetic district: District required for keeping and controlling the scenery of other areas than the central place aesthetic district and the historical culture aesthetic district;

3. Height district:

(a) Tallest height district: District in need of setting forth the maximum limit of a height of structure in order to protect the environment and scenery, and to prevent an overconcentration;

(b) Lowest height district: District in need of setting forth the minimum limit on the height of structure in order to heighten land utilization and to protect the scenery;

(3) When it is deemed necessary for regional conditions, the Mayor/Do Governor may additionally subdivide the scenic district and aesthetic district under paragraph (2) 1 and 2 or subdivide and designate a specific purpose restriction district under Article 37 (1) 10 of the Act in accordance with the urban planning municipal ordinance of the relevant City/Do.

(4) Where any specific use district other than the specific use district under paragraphs (1) and (2) of the same Article is prescribed by the urban planning municipal ordinance of a City/Do under Article 37 (3) of the Act, the standards falling under each of the following subparagraphs

1. To establish a new special-purpose district only where there is an inevitable reason in which efficient utilization of land can not be achieved only by the special-purpose district, special-purpose district or special-purpose district prescribed by the Act;

2. Restrictions on acts in the special-purpose district shall be limited to the minimum extent necessary to achieve the objectives of designating such special-purpose district;

3. He shall not newly establish a specific-use district which relieves restricted acts in the specific-use area or specific-use zone concerned; and

Article 73 (Limitations on Construction within Aesthetic Districts)

(1) No building prescribed by the urban planning ordinance as an obstacle to the maintenance of fine views resulting from the location, environment, and other characteristics of the district shall be constructed within the scenic zone: Provided, That this shall not apply to cases where the Special Metropolitan City Mayor, the Metropolitan City Mayor, or the head of a Si/Gun deems that such building satisfies the standards prescribed by the urban planning ordinance within the scope of not violating the purpose of designation of the district and has undergone deliberation by the

(2) With respect to the height and size of structure within the scenic zone (including the ratio of the side length or height of a structure against its front length), the size of annexed structure, forms and colors of a structure, walls and gates, forms and colors of the structure, and forms and colors of the structural installation jutting out to the outside of a structure and other similar ones, or the limitations or prohibitions on the installation thereof, etc., the urban planning municipal ordinance shall be stipulated within the scope necessary for the maintenance of fine views in accordance with the location, environment and other characteristics of the said zone.

Article 85 (Floor Area Ratio within Special-Purpose Areas)

(1) The floor area ratio under the provisions of Article 78 (1) and (2) of the Act shall not exceed the ratio as determined by the urban planning municipal ordinance of the Special Metropolitan City, Metropolitan City, Si, or Gun within the scope falling under each of the following subparagraphs, in consideration of the surface volume, population size, characteristics of specific

3. Class-グ general residential area: not less than 100 percent, but not more than 200 percent;

6. Quasi residential area: not less than 200 percent, but not more than 500 percent;

Secretary-gu Seoul Metropolitan City Urban Planning Ordinance

Article 45 (Enhancement of Buildings)

(1) The height of a building object constructed within an aesthetic zone as a historic and cultural aesthetic zone and a view street pursuant to Article 73 (2) of the Decree shall not exceed four floors.

(2) Notwithstanding the provisions of paragraph (1), in a case falling under any of the following subparagraphs, if the permission-granting authority deems that there is no impediment to the aesthetic view through the deliberation of the relevant building committee, the provisions of paragraph (1) may be mitigated to not more than six floors:

2. Where the permitting authority recognizes that the exterior, such as the form, color, etc. of a building is significantly improved by constructing a building in compliance with the purpose of district designation within a historical and cultural aesthetic district abutting on a road of not less than 20 meters wide;

3. Where it is difficult to apply the provisions of paragraph (1) because the site is remarkably higher or lower than the landscape side of the road.

(3) Notwithstanding the provisions of paragraph (1), in a zone designated and publicly announced by the mayor, the highest and lowest height of buildings shall be separately determined for the creation of a horizontal landscape of an aesthetic district, and in accordance with the height standards publicly notified.

Article 54 (Building-to-Land Ratio in Specific Use Area)

(1) Pursuant to the provisions of Article 77 of the Act and Article 84 (1) of the Decree, the building-to-land ratio by specific-use area shall be lower than:

3. Class-グ general residential area: 60 percent;

6. Quasi residential area: 60 percent;

Article 55 (Commercials in Specific Use Area)

(1) Pursuant to the provisions of Article 78 (1) and (2) of the Act and Article 85 (1) of the Decree, the floor area ratio by specific-use areas shall not exceed the rates falling under any of

3. Class-グ general residential area: 150 percent;

4. Class-II general residential area: 200 percent;

5. Class-III general residential area: 250 percent;

6. Quasi residential area: 400 percent;

Cultural Heritage Protection Act (amended by Act No. 8346 of April 11, 2007)

Article 20 (Matters to be Permitted)

Any person who intends to do any of the following acts with respect to the State-designated cultural properties shall obtain the permission of the Administrator of the Cultural Properties Administration under the conditions as prescribed by the Presidential Decree. The same shall also apply to any modification to permitted matters:

1. Capturing or collecting an animal or plant mineral in an area designated or provisionally designated as a scenic area or natural monument, or in its protection zone, or removing the captured or collected animal or plant mineral from such area;

3. Taking a locked copy, a photographer, or a photograph of State-designated cultural heritage in a manner that could affect its preservation;

4. An act prescribed by the Ordinance of the Ministry of Culture and Tourism, which is likely to alter the current state of State-designated cultural heritage (including any act of stuffing and stuffing natural relics) or affect the preservation thereof, and is prescribed by the Ordinance of the Ministry of Culture and Tourism.

The Seoul Metropolitan Government Ordinance on Protection of Cultural Properties

Article 14-2 (Protection of Cultural Properties during Construction Works)

(1) The scope of areas where administrative agencies under Article 74 (2) of the Act should examine whether the execution of construction works affects the preservation of cultural heritage, shall be as follows:

1. State-designated cultural heritage within 100 meters from a boundary (referring to an outer boundary of the cultural heritage concerned, if the cultural heritage concerned is not designated as a protection zone; hereinafter the same shall apply);

2. Designated cultural heritage, etc. shall be within 50 meters from the boundary of the protection zone: Provided, That any designated cultural heritage, the area of which is at least 10,00 square meters in the ordinary cemetery and the area of designation of a protection zone shall be excluded.

(2) An administrative agency that grants authorization, permission, etc. on construction activities in an area falling under any subparagraph of paragraph (1) shall examine matters falling under any of the following subparagraphs before granting authorization, permission, etc. for such construction works:

1. Whether the height of the building to be constructed meets the standards for the height of the building around cultural heritage under the attached Table 1;

2. Whether the use, size, height, shape, material, color, etc. of the building or facility is in harmony with the cultural heritage;

4. Whether noise, vibration, etc. that may affect the preservation of cultural heritage is likely to be caused, or discharged from sewage, wastewater, harmful gas, chemical substance, dust or heat, which is likely to affect the preservation of cultural heritage during construction or after completion.

5. Whether an act of excavating at least 50 meters underground that may affect the preservation of cultural heritage is accompanied by such act;

6. Change in water quantity or whether water quality has been contaminated;

7. Whether such act impairs the ancient landscape, historic, cultural, and natural environment;

8. Whether buried cultural heritage is packaged;

9. Whether it is likely to affect the preservation of cultural properties.

(3) Where the construction work in question falls under any of the following subparagraphs as a result of the examination under paragraph (2), the administrative agency shall determine whether the State-designated cultural properties fall under the acts referred to in subparagraph 4 of Article 20 of the Act after consultation with the Administrator of Cultural Properties Administration and the Mayor:

1. Where the height standard of a building around cultural heritage under the attached Table 1 exceeds that of the building;

2. Where it is recognized as having a high possibility of affecting the preservation of cultural properties as a result of the examination under paragraph (2) 2 through 9.

3. Where the building is a parcel directly abutting on the boundary of a protection zone.

(4) An administrative agency that grants authorization or permission for construction works shall examine whether the construction works concerned have an toward the preservation of cultural heritage and shall handle them by applying mutatis mutandis the provisions of paragraph (3), if it is deemed that such construction works may affect the preservation of cultural heritage, even if the construction works exceed the scope of the area under paragraph (1), and if it is deemed that such construction

1. Changes in water volume or water pollution;

2. Disturbing scenery, history, culture, and natural environment;

[Attachment I]

Standard for the height of buildings around cultural heritage (related to Article 14-2), newly established on January 15, 2002

Scope Scope and Standard for Height of Cultural Heritage

(high height of cultural property) Dogs

The sublime funerals within four capitals: 19m - 19m - from the subliminary surface of the cultural heritage protection area;

An official stamp, 279, each, on the basis of the height of cultural properties, 20 meters in the Republic of Korea Office of the State-designated Postal Organization: 20 meters

6.5m: 6.5m for cultural properties Chang-gu, Chang-gu, and Socuk-gu Office of Postal Administration:

Simnasium, seeds and seedlings, Gyeonghee Pungsium, Mamnasium, Mamnasium, Changposium, Domnasium, Domnasium

Do-gu Burials, Salleys, Salleys: 12m

Do-Seoul Sagu, Seoul Sagu: 7m -

* - Alley Park: 12m

* - Seoul History and Seoul History

* - Madern: 6m

Co., Ltd. - - Sticking association: 2m (Standards for fences)

Co., Ltd.

Do. Other cultural heritage boundary index (the protected area / Seoul shall be within four gates and outside the protection area)

- Cultural heritage not designated shall be applied without external distinction -

3.6m high from the boundary of the enterprise.

Not more than 279 ships for religion

Boundarys of protection zones outside the Seodaemun (designations of protection zones);

State-designated cultural properties and non-designated cultural properties shall be the outer boundary) -

Based on the height of 7.5m from the surface of the designated cultural heritage of Seoul Metropolitan Government -

- Not more than 27 lines:

* Anh 279 m. means distances and buildings from the boundary point of the protection zone to the buildings scheduled to perform construction activities;

Height 2: The line corresponding to 1.

Building Act (amended by Act No. 8974 of March 21, 2008)

Article 5-2 (Special Case for Existing Buildings, etc.)

The competent permitting authority shall grant permission for a site or structure on the grounds of the enactment or amendment of statutes or other grounds prescribed by Presidential Decree.

In a case where it is inappropriate to the provisions of this Act, construction permission may be granted in accordance with the Municipal Ordinance of the local government concerned within the extent prescribed by the Presidential Decree.

참조조문

-건축법

-건축법 제5조의2

-국토의 계획 및 이용에 관한 법률

-국토의 계획 및 이용에 관한 법률 제37조

-국토의 계획 및 이용에 관한 법률 시행령

참조판례

-대법원 2001. 5. 29. 선고 99두7265 판결