[1] Whether relevant provisions concerning the use of a building under the Building Act apply to the establishment and operation of a private teaching institute (affirmative)

[2] Whether a private teaching institute prescribed as an educational research and welfare facility under subparagraph 8 of Article 3-4 [Attachment 1] of the Enforcement Decree of the Building Act, which sets the types of buildings by use, is limited to a case where the maximum floor area of a private teaching institute is not less than 50 square meters, which is the largest sum of floor areas

[3] In a case where the total floor area used for the purpose of a private teaching institute is not less than 500 square meters within the same building, whether it can be divided into a private teaching institute as an educational research and welfare facility and a private teaching institute as a Class II neighborhood living facility (negative)

[1] The Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons mainly regulates the establishment and operation of private teaching institutes, but the Building Act also regulates the establishment and operation of private teaching institutes. Thus, the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons cannot be deemed exclusively applied in preference to the Building Act. Thus, the relevant provisions of the Building Act as well as the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons shall apply to the establishment and operation of

[2] Article 3-4 [Attachment 1] of the Enforcement Decree of the Building Act, which sets the types of buildings by use, divides a private teaching institute into educational research and welfare facilities, while classifying the use into Class II neighborhood living facilities in a case where the total floor area used for a private teaching institute in the same building is less than 500 square meters. In light of the fact that there is no express provision, such as that a private teaching institute provided as educational research and welfare facilities refers to the total floor area of not less than 500 square meters or excludes Class II neighborhood living facilities, a private teaching institute defined as educational research and welfare facilities shall include not only the total floor area used for a private teaching institute is not less than 50 square meters

[3] A private teaching institute and a neighborhood living facility within the same building as an educational research and welfare facility can be separated and retained only in cases where the total floor area used as a private teaching institute is less than 500 square meters in total, and if above, it can be used only in cases where it is an educational research and welfare facility.

[1] Article 6, Article 8 of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, Article 2 (1) 2-2, (2) 4, 8, Articles 14, and 55 of the Building Act, Article 3-4 of the Enforcement Decree of the Building Act / [2] Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act / [3] Articles 6 and 8 of the Act on the Establishment and Operation of Private Teaching Institutes, Article 2 (1) 2-2, (2) 4, 8, 14, and 5 of the Building Act, Article 3-4 of the Enforcement Decree of the Building Act [Attachment Table 1]

[1] Supreme Court Decision 94Nu3216 delivered on January 12, 1995 (Gong1995Sang, 914) Supreme Court Decision 96Nu1972 delivered on March 27, 1998 (Gong1998Sang, 1221) Supreme Court Decision 200Du5159 delivered on January 25, 2002 (Gong2002Sang, 589)

Maccom

The head of the Incheon Metropolitan Office of Education;

Incheon District Court Decision 2001Gu5388 delivered on September 10, 2002

July 16, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance is revoked. The defendant's disposition of accepting applications for registration of a driving school against the plaintiff on December 6, 2001 shall be revoked.

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged by Gap evidence Nos. 1, 2, and 1, 2, 5, 6, and 7 in consideration of the whole purport of the pleadings:

(a) Application for registration;

The Plaintiff, a sectional owner of the New Building No. 602 (exclusive use area of 102.18 square meters, 44.165 square meters, hereinafter referred to as “602 square meters”), located in Bupyeong-gu, Incheon, Bupyeong-gu, 498-11, changed the purpose of use under the Building Act No. 602, which had neighborhood living facilities (cafeteria), to educational research and welfare facilities in order to operate a private teaching institute under 602, and filed an application for registration of establishment and operation of a private teaching institute with the Defendant on November 13, 2001.

(b) Current status of private teaching institutes;

At the time, 402 square meters (exclusive area 102.18 square meters, 44.615 square meters), 403 (exclusive area 102.18 square meters, 405 square meters (exclusive area 32.04 square meters, public area 13.95 square meters), 501 part (exclusive area 22.32 square meters, public area 9.746 square meters), 503 square meters (exclusive area 116.36 square meters, public area 50.80 square meters), 601 (exclusive area 113.58 square meters, and public area 49.585 square meters) of new buildings have already been used as private teaching institutes.

(c) Grounds for disposition;

(1) On November 17, 2001, the Defendant demanded the Plaintiff to supplement the part of the existing private teaching institute to change its use to educational research and welfare facilities on the ground that the use of a private teaching institute under subparagraph 602 constitutes a case where the total floor area used for a private teaching institute is not less than 500 square meters in the same building. In such a case, the use of the building in question is classified as educational research and welfare facilities pursuant to Article 3-4 of the Enforcement Decree of the Building Act, and therefore, the use of the part used as an existing private teaching institute to be used as a private teaching institute under subparagraph 602 is changed to educational research

(2) However, on December 4, 2001, the Plaintiff notified the Defendant on December 4, 2001 that it is impossible to supplement the Plaintiff’s request for supplement because the owner of the said part did not consent to the change of use, and on December 6, 2001, the Defendant rejected the Plaintiff’s application for registration of establishment and operation of the said private teaching institute.

(d) The use under the Building Act of a new building;

The new building is a collective building of 2nd underground and 6th underground, the owner of which is divided by each unit, and its main purpose is a neighborhood living facility and all other floors except 20.8m2 (use: parking lot, electricity room, machine room, power generation room) and part of 1st underground and 20.8m2 (use: parking lot) are neighborhood living facilities. On September 5, 2001, the plaintiff requested to change the use of 602 units to educational research and welfare facilities in Bupyeong-gu Incheon Metropolitan City, which is the competent administrative agency, on September 5, 2001. The purpose of 602 units was changed to educational research and welfare facilities (On the other hand, 602 units of the new building were changed to educational research and welfare facilities although only 602 units of 6th floor have changed to educational research and welfare facilities).

2. Whether the disposition is lawful;

A. The parties' assertion

(1) Defendant

In light of the above reasons and relevant provisions, the instant disposition is lawful.

(2) Plaintiff

Since the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, a foundation for the registration of private teaching institutes, does not require the building to have the purpose of use under the Building Act, and therefore, the registration of private teaching institutes cannot be refused due to lack of purpose of use, the instant disposition is unlawful

In addition, by the Plaintiff’s changing the purpose of the Building Act No. 602 from a neighborhood living facility to an educational research and welfare facility, the Plaintiff met the requirements under the Building Act for the establishment and operation registration of a private teaching institute under 602, and furthermore, it is not necessary to change the purpose of the part already used as a private teaching institute. Thus, the instant disposition is unlawful.

B. Relevant statutes

Article 6 and 8 of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons; Article 2(1)2-2 and (2) of the Building Act; Article 14(1), 2, 3, (6), and Article 5 of the Building Act; Article 3-4 [Attached Table 1], Article 14, Article 87(3) of the Enforcement Decree of the Building Act; Article 7 of the Act on the Promotion of Convenience for Persons with Disabilities, the Aged, the Aged, the Pregnant Women, etc.; Article 3 [Attachment Table 1]-2 of the Enforcement Decree of the same Act; Article 2(1)-2 and (2) of the Building Act; Article 5 of the Enforcement Decree

C. Determination

(1) Whether the purpose of the Building Act is the standard for examination

If different laws have different legislative purposes for a certain act, they shall meet all the requirements under the provisions of each Act in relation to such act, unless they are clear that the Act is applied exclusively in preference to other Acts. In such cases, one of them is invoked by the provisions of other Acts, or it is obvious that such act is absolutely prohibited by other Acts and subordinate statutes and it is objectively impossible, such other Acts and subordinate statutes shall be taken in consideration of the requirements of such other Acts and subordinate statutes.

The Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons mainly regulates the establishment and operation of private teaching institutes, but the Building Act also provides that the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons preferentially applies to the Building Act (Article 3(2) of the Enforcement Rule of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons provides for a copy of the building register of private teaching institutes as one of the documents attached to the application for registration of the establishment and operation of private teaching institutes, and the purpose of the building should be examined in the disposition of the application for registration of the establishment and operation of private teaching institutes as well as the relevant provisions of the Building Act shall apply to the establishment and operation of private teaching institutes as well as the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons. Meanwhile, according to the Building Act, in using 602 for the purpose of private teaching institutes as well as to all parts used as private teaching institutes as follows, it shall be deemed legitimate in light of the legal principles as the owner of the relevant part does not consent to change the purpose of use of private teaching institutes.

Therefore, the plaintiff's assertion that it is unnecessary to satisfy the requirements of the Building Act in the registration of a private teaching institute is without merit.

(2) Whether the requirements for use are met

(A) Use classification of a private teaching institute

Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act, which sets the types of buildings by use, classifys private teaching institutes into educational research and welfare facilities, while classifys the uses into Class II neighborhood living facilities in cases where the sum of the floor areas used for a private teaching institute in the same building is less than 500 square meters, and there is no express provision that a private teaching institute specified as an educational research and welfare facility refers to the sum of the floor areas of not less than 500 square meters or excludes Class II neighborhood living facilities (in most other buildings that are not a private teaching institute, the same provision shall be provided so that one kind of building does not fall under not fall under two or more uses at the same time by completely distinguishing the use according to the area of the building, by setting the same provision.) In light of the fact that a private teaching institute prescribed as an educational research and welfare facility does not include not only

(B) Possibility of compatibility with private teaching institutes

(1) Furthermore, in cases where a private teaching institute whose total floor area used as a private teaching institute is more than 50 square meters within one building, can continue to exist separately from a private teaching institute as an educational research and welfare facility, and a private teaching institute as a second-class neighborhood living facility, with the total floor area used as a private teaching institute is less than 500 square meters within the same building. Here, the same building is deemed to be the same building if there are two or more buildings within one site, and as seen in subparagraph 3 (a) of [Attachment Table 1] of Article 3-4 of the Enforcement Decree of the Building Act, the entire building refers to one of the same usage among the buildings (i.e., two kinds of neighborhood living facilities in this case), and if the total floor area used as a private teaching institute exceeds 50 square meters, it shall be regulated that the total floor area used as a private teaching institute is not less than 50 square meters, and in cases where the total floor area used as a private teaching institute is less than 500 square meters, it shall be regulated that it does not constitute the whole residential facilities.

(2) In addition, "the same building" means the whole aggregate building if there are 2 or more buildings within the purpose of the Building Act which determines the use, etc. of the building for the purpose of improving the safety, function, and aesthetic view of the building, or if there are 2 or more buildings within a single site, such buildings shall be deemed the same building in light of the contents of Article 3-4 [Attachment Table 1] No. 3 (a) of the Enforcement Decree of the Building Act.

③ As seen earlier, the total floor area already used as a private teaching institute in a new building, which is an aggregate building, amounts to 702.016 square meters (48.66 square meters in exclusive use area + 213.356 square meters in public use area). Therefore, in order for the Plaintiff to operate a private teaching institute under 602, it is insufficient to change only 602 square meters into educational research and welfare facilities, and the entire portion of the ships on which the existing private teaching institute is changed into educational research and welfare facilities, and the circumstance that the owner of the relevant part is unable to implement it because he/she did not comply with the above change of use does not affect the above conclusion. Therefore, the disposition of this case by the Defendant, which rejected the Plaintiff’s application for registration of establishment and operation of a private teaching institute, is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as the plaintiff's appeal is without merit. It is so decided as per Disposition.

Judge Lee Jin-jin (Presiding Judge)