207Guhap812 Revocation of Disposition rejecting an application for building permit

High ○○ (58years, South Korea)

Attorney Jeon-ho et al., Counsel for the defendant

Jeju Market

Audit of Litigation Performers, Creation Report

June 25, 2008

August 13, 2008

1. The defendant's disposition of rejecting an application for building permit filed against the plaintiff on November 23, 2007 is revoked. 2. The costs of lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On November 30, 2006, the Plaintiff obtained a construction permit from the Defendant to newly construct the second underground floor, the first class neighborhood living facilities of the fourth floor on the ground (2,284.62m, the total floor area of 2,284.75m, the building-to-land ratio of 19.92%, the floor area ratio of 58.16%, the total number of parking spaces 16m) on the ground level 2,73.37m2 in Jeju-do. On August 8, 2007, the Plaintiff obtained a construction permit to change the construction permit to increase the total floor area of 2,73.37m2 on April 12, 2007. In addition, the building permit to increase the total floor area of the building site (the total area of hospital, the hospital, the building area of 463.4.75m, the building-to-land ratio of 3937m37, 97.37m.

C. On November 15, 2007, when controversy arises as to the feasibility of hospital operation between the joint business owners, the Plaintiff filed an application for a construction permit (hereinafter referred to as the “application of this case”) with the purport of newly constructing a funeral hall of the second and fourth floor above the ground (463.28m of the building area, 3,635.65m of the total floor area, 19.96% of the building area, 79.58% of the building area, 36% of the total number of parking spaces, hereinafter referred to as “the funeral hall of this case”) on the ground of the 1237 square meters square meters and the 69m square meters of the cemetery of the same 1236m (hereinafter referred to as “the application of this case”).

D. On November 23, 2007, when the application site of this case dealt with a building permit for the purpose of a hospital, the Defendant deemed that the location conditions and so forth were reasonable. However, where the existing permitted matters are modified to the purpose of a funeral hall, the Defendant rendered a building permit on the ground that the existing permitted matters are abutting on the north bank which has a large traffic volume, and the site of this case is determined to have an impact on the surrounding areas of the building where many people can make an examination and a large number of unspecified people using the culture and arts center (see attached Table 1), and Article 56(1) [Attachment 1] of the Enforcement Decree of the National Land Planning and Utilization Act (wholly amended by Act No. 8852, Feb. 29, 2008; hereinafter referred to as the "Act") (wholly amended by Presidential Decree No. 20722, Feb. 29, 2008) and Article 146(1) of the Rules on the Determination, Structure and Standards for Installation of Urban Planning Facilities (hereinafter referred to as the funeral hall of this case).

E. Accordingly, the Plaintiff filed an administrative appeal against the instant disposition on December 5, 2007, but the Jeju Special Self-Governing Province Administrative Appeals Commission dismissed it on June 20, 2008.

[Ground of recognition] Facts without dispute, Gap 1 to 3 evidence (including each number), Eul 1 to 3 evidence, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. The parties' assertion

As to the defendant's assertion that the disposition of this case is lawful in accordance with the relevant Acts and subordinate statutes, the plaintiff asserts that the disposition of this case is unlawful because it violates the principle of mistake of facts, proportionality and equality, and is in violation of the discretionary authority.

1) In light of the aesthetic view of the building, the Plaintiff designed to see the external form of the instant funeral hall as a portrait-to-date to see the appearance of the exhibition hall or hotel. In particular, it cannot be deemed that the instant funeral hall damages the surrounding natural landscape and aesthetic view due to the construction of landscaping facilities in the space between the North Korean street and the funeral hall, thereby avoiding the outside labor of the building.

2) The funeral hall, which is an establishment that leads to the death of a deceased person and wants to wear a post-life uniform, cannot be deemed as an hate facility. Rather, the necessity thereof is recognized for the establishment of an advanced funeral culture.

3) The site of the instant funeral hall, the Korea Library, and the Korea Culture and Arts Center shall not reach approximately 623 meters in straight line (1.05 kilometers away from the building of this case, in order to reach the Korea Culture and Arts Center, etc. using the building of this case, 1.05 kilometers away from the building of this case) and its space shall not be seen as the opposite building by blocking it from the stude, a large-scale river, a pine tree forest, etc., and thus, the funeral hall of this case shall not be deemed to be established near the Korea Library, etc.

4) On August 9, 2007, the Defendant issued the instant disposition with respect to the instant funeral hall, the location conditions, etc. of which are similar to those of the instant funeral hall, even though the Defendant permitted the alteration of the use of the part of the first floor from the “Class II neighborhood living facilities” to the “ funeral hall,” in Jeju-do, Seocheon-gu, Seocheon-gu, 1544-1, which had been operated as a wedding hall on August 9, 2007.

(b) Fact of recognition;

1) The instant application is immediately adjacent to the northwest (referring to the width of 35 meters and the distance of 6 lanes) and is designated as a “natural green belt area” under the urban management planning stipulated in the National Land Planning and Utilization Act.

2) The instant application area is surrounded by field, orchard, tree tree, etc. adjacent to the instant application area. Within a radius of 500 meters from the site of the instant application, there is no population-populated facilities or public cultural facilities that have been located in the instant orchard, but there is no demographic facility or public cultural facilities. The instant application area is located in the 250 households located in a straight line, 50 meters away from the site of the instant orchard, and 600 meters or more in a straight line from the site of the Korea Library and the Korea Art Center.

3) The instant application is made between the instant application site and the Korea Library, the Korea Culture and Arts Center site and the above Oradong Village, and it is not likely that the instant application was made in the above Oradong Village.

4) There are crossings and crosswalks in the north of the instant application site, and the access roads (hereinafter referred to as “intersections”) adjacent to the instant application site are partially used by the residents of nearby gates in the vicinity of the instant application site at the time of their exit and departure.

[Reasons for Recognition] Facts without dispute, Gap 4, 5, 9, Eul evidence 11 (including each number), the purport of the whole pleadings as a result of the on-site verification by this court

C. Determination

1) Whether the instant disposition grounds are lawful

The construction permit holder under Article 8 of the former Building Act (wholly amended by Act No. 8974, Mar. 21, 2008; hereinafter the same) shall, as a matter of course, grant the construction permit under the same Act unless it violates any restriction prescribed by the former Building Act, National Land Planning and Utilization Act, and other relevant Acts and subordinate statutes, and shall not refuse it for reasons other than the grounds for restriction prescribed by the above relevant Acts and subordinate statutes (see, e.g., Supreme Court Decisions 95Nu9051, Dec. 12, 1995; 95Nu16981, Feb. 13, 1996). According to the above facts, the application of this case is likely to be adjacent to North Korea, but it does not have any specific population-populated facilities or public cultural facilities within 500 meters from the site of this case, and it cannot be seen that the application of this case was destroyed by 60 meters away from the site of the Seoul High School and its neighboring facilities, etc.

2) Whether the Defendant may claim the grounds for the instant disposition as the instant disposition in the instant lawsuit

A) In the instant lawsuit, the Defendant asserted to the effect that the instant disposition is lawful since the instant application violates Article 56 [Attachment 1] subparag. 1 (e) of the Enforcement Decree of the Act because the number of parking lots is insufficient compared to the number of copies of the instant funeral hall, and thus, the number of parking lots is considerably affected by the accident of parking and road traffic flow.

B) With respect to an appeal seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of confidence in the people who are the other party to the administrative disposition, the disposition agency can add or modify other reasons only to the extent that the original reason and basic facts are identical to those of the original disposition, and it is not allowed to assert as a ground for disposition on the grounds of separate facts not identical with the basic facts. The existence of the basic facts here is determined based on whether the social factual relations, which are the basis of the disposition, are identical in the basic point of view (see, e.g., Supreme Court Decisions 2005Du364, Jun. 30, 2006; 200Du8684, Sept. 28, 2001). Accordingly, the defendant's ground added at the first date for pleading of the funeral hall of this case, which does not cause harm to neighboring residents of the funeral hall of this case, and thus, it cannot be seen that it does not cause harm to natural landscape or harm the surrounding residents of this case.

3) Therefore, the Defendant’s disposition of this case, which rejected the Plaintiff’s instant petition, was made without any legal basis, and is unlawful.

3. Conclusion

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

The presiding judge, Yoon-ju

Judge Kim fixed-term

Judges subordinate to judges

1) In the instant disposition, the Plaintiff is constructed for the purpose of hospital use with the permission of the Plaintiff, but a funeral hall inevitably needs to be maintained in the hospital.

In the case of changing the purpose of use into a funeral hall of only underground floor with a complete shielding facility on the adjacent roads and surrounding land.

However, an alternative is presented that "to decide whether to deal with building permits (revision of matters to be permitted) through review."

2) The plaintiff assumes nine total number of rooms of the funeral hall of this case, an average of 50 to 60%, and the number of articles per unit of the funeral hall of this case is 100 to 300.

It argues that the total of 270-675 parking lots are necessary if 50% of them are assumed to be used for private use.