Plaintiff (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu (Law Firm Yang & Yang LLC, Attorney Kang Jong-soo, Counsel for defendant-appellant)

Intervenor joining the Defendant

October 25, 2017

Seoul Administrative Court Decision 2016Guhap78271 decided May 18, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant’s Intervenor, while the remainder shall be borne by the Defendant’s Intervenor, respectively.

1. Purport of claim

The defendant's disposition to return a building report to the plaintiff on August 19, 2016 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is identical to the reasoning of the first instance judgment, except for the addition of "No. 8-1 and No. 10" to "No. 3 of the judgment of the court of first instance, No. 3, No. 3 of the judgment of the court of first instance," and therefore, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

The defendant asserts that since the plaintiff renounced the exclusive and exclusive right to use and benefit from the land of this case, the plaintiff's filing of the lawsuit of this case on the premise that the plaintiff has a right to use and benefit from the land of this case constitutes abuse

However, the evidence presented by the Defendant alone is difficult to recognize that the Plaintiff renounced the exclusive and exclusive right to use and benefit from the instant land, and there is no other evidence to acknowledge this. In addition, the Defendant asserts that the Plaintiff brought the instant lawsuit to pressure neighboring residents, but there is no evidence to acknowledge this. Accordingly, this part of the Defendant’s assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The court's explanation on this part is identical to the statement No. 2 of the reasoning of the judgment of the court of first instance, and thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

The reasoning for this Court’s explanation is as follows: (a) the reasoning of the judgment of the court of first instance is the same as that of Article 2-3(3) of the Reasons for the judgment of the court of first instance (Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the addition or dismissal as follows.

In Chapter 4, the following shall be added to the fourth sentence of the first instance judgment:

In addition, the defendant asserts that even if it is determined on the basis of the minimum width of the road under the Building Act, it constitutes a road under the Building Act as much as the other side of the land of this case is at least four meters wide.

However, it is not physically divided as to whether it is impossible to construct a new road because it is a road under the Building Act, and the construction of the formula that the land belonging to one lot number is not a road, but the remainder is considered a road under the current law. Therefore, the defendant's assertion on this part is not accepted.

Furthermore, the defendant asserts that if the width of the point where the north part of the land of this case begins is less than four meters and that the part cannot be seen as a road, the road from the point where the south part begins falls under one-way road, i.e., a dead-end road. According to Article 2 (1) 11 of the Building Act and Article 3-3 subparagraph 2 of the Enforcement Decree of the Building Act, if the length of the dead-end road is less than 35 meters, such as the display on the design map (Evidence 5), the length of the land of this case is less than 35 meters, and the width of the land of this case is more than 3 meters, and thus, it constitutes a road under the Building Act. However, according to each description and image of the evidence No. 8-1 and No. 10, it is evident that the land of this case adjoins the road, so this part of the defendant's assertion is without merit."

In the first instance judgment, Part 5 of the first instance judgment, the phrase “based on the fact that construction would not have been possible,” shall be construed as “based on the fact that construction would not have been possible, and that if the instant land was not a road, sewage pipes would not be laid off.”

In the 5th page of the first instance judgment, the same shall apply to the case where a sewage culvert is laid on the land of this case," in the front of the 10th page of the first instance judgment.

4. Conclusion

The plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Dong-won (Presiding Judge)