Article 48 of the Building Act shall apply in cases where the use of a simple restaurant or a building for public restaurant has been changed to a miscellaneous store or a Saturday store.

Where a building less than 50 square meters constructed with a construction permit for the use of a simple restaurant or a public restaurant is used as a miscellaneous store after its use is changed thereafter, it falls under a neighborhood living facilities as stipulated in the attached Table 4 of the Enforcement Decree of the Building Act, and the alteration of its use pursuant to the exception of Article 174 (2) 1 of the Enforcement Decree of the Building Act is not deemed to be a construction of a building under Article 48 of the Building Act, but if the whole or part of the building is used after its use is changed to a local products store, it can be deemed to fall under a sales facility under the former part of Article 13 (13) 3 of the same Table, and it can be deemed to be a construction of a building under

Article 48 of the Building Act and Article 174-2 (1) 1 of the Enforcement Decree of the Building Act.

Plaintiff 1 and four plaintiffs et al., Counsel for the defendant-appellant

[Defendant-Appellant] Defendant 1

Daegu High Court Decision 81Gu99 delivered on March 30, 1982

The lower judgment against Plaintiffs 2, 3, 4, and 5 is reversed, and the case is remanded to the Daegu High Court. The Defendant’s appeal against Plaintiff 1 is dismissed, and the costs of appeal against the same Plaintiff are assessed against the Defendant.

The defendant's attorney's grounds of appeal are examined.

1. According to the provisions of Article 48 of the Building Act, Article 174-2 (1) 1 of the Enforcement Decree of the same Act and the Enforcement Decree of the same Act (Annexed Table), where the total floor area used for the relevant purpose is less than 500 square meters in the same building, simple restaurants, public restaurants, beauty theaters, etc., which fall under neighborhood living facilities under the attached Table 4 of the Enforcement Decree of the Building Act, but soil-speed stores do not fall under any of neighborhood living facilities under any of subparagraphs of paragraph (4) of the same attached Table. Thus, even if the floor area of the use is less than 50 square meters, it shall fall under sales facilities under the former part of paragraph (13) 3 of the same attached Table, even if the use area is less than 500 square meters, and if the use is used for simple restaurants or public restaurants, it shall not be considered as construction of buildings under Article 48 of the Building Act, and if it is used as whole or in part, it shall not be considered as construction of buildings under the same Act.

2. According to the reasoning of the judgment below, the court below found that the plaintiff 1 obtained a building permit for a public restaurant on July 21, 1980 and operated a public restaurant with 115.85 square meters square meters in total in the commercial area and the 5th-class fine view around 10.85 square meters in the same year and changed the use of part of them from April 1981 to the point of view. The above changed use constitutes an exception under Article 174-2 (1) 1 of the Enforcement Decree of the Building Act, and it cannot be deemed as a construction of a building under Article 48 of the same Act. The judgment of the court below is just and there is no ground for illegality such as the theory of lawsuit.

3. However, the court below determined that although it found that Plaintiffs 2, 3, 4, and 5, etc. were designated as the first public restaurant or restaurant and received a building permit and operated a restaurant with less than 500 square meters in the land around the non-permanent city designated as the commercial area and the fifth-class aesthetic district, they did not use all or part of them as the local products store, they did not use them as the retail store of daily products, which are neighborhood living facilities under Article 174-2 (1) 1 of the Enforcement Decree of the Building Act, and the above change of use constitutes an exception under Article 174-2 (1) 1 of the Enforcement Decree of the Building Act, and it also cannot be deemed as the construction of buildings under Article 48 of the Building Act. In this regard, the court below erred by misapprehending the construction of neighborhood living facilities, and by interpreting Article 48 of the Building Act and Article 174-2 (1) 1 of the Enforcement Decree of the same Act, it did not apply properly.

4. Therefore, the judgment of the court below against plaintiffs 2, 3, 4, and 5 is reversed, and the case is remanded to the Daegu High Court which is the original judgment. The defendant's appeal against plaintiffs 1 is dismissed. The costs of the appeal against the same plaintiff are assessed against the losing party and are so decided as per Disposition by the assent of all participating judges.

Justices Kim Young-ju (Presiding Justice)