(영문) 대법원 2015.9.15.선고 2014두15504 판결

1. The court below held that the original reason for the disposition of this case was not identical to the original reason for the disposition of this case, and that the original reason for the disposition of this case did not meet the criteria prescribed by the Management of Mountainous Districts Act, one of the Acts and subordinate statutes relating to the legal fiction of authorization and permission under Articles 19(7) and 11(5)5 of the Building Act, and that the defendant's reason for the disposition of this case, which was additionally issued in the lawsuit of this case, requires a significant public interest interest that "the reason for the disposition of this case should not accept the report of alteration of use of this case.

Furthermore, even if the above new grounds for disposition can be added, the lower court determined that the mere circumstance alleged by the Defendant alone, such as the Plaintiff’s use of the warehouse of this case as a multi-family house because the instant land was located in mountain speed and there was no connection road other than forest roads, and thus, it cannot be deemed that there was no need for significant public interest to accept the instant report on change of use solely on the ground that the Plaintiff already owned a detached house for the purpose of residing in farmers, fishermen, and fishermen adjacent to the instant land, or that the Plaintiff had a detached house on the land adjacent to the instant land

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. Although an appeal seeking the revocation of an administrative disposition is not allowed to assert as a ground for disposition on the grounds of a separate fact other than the grounds for the initial disposition, it may add or modify other grounds to the extent that it is deemed identical to the grounds for the initial disposition and the basic facts. The existence of the factual relevance here is determined depending on whether the social factual relations, which form the basis for the disposition, are identical in basic terms, based on the specific facts prior to the legal evaluation of the grounds for disposition (see, e.g., Supreme Court Decisions 2004Du4482, Nov. 26, 2004; 200Du8684, Sept. 28, 2001).

However, as a ground for non-acceptance of a report on change of use, the reason for the first disposition of this case is that it can be independently asserted regardless of whether the report on change of use satisfies all the requirements prescribed by relevant Acts and subordinate statutes. Further, the reason for the first disposition of this case is that "a multi-family house for the purpose of change is commonly applied at the time of conversion of mountainous district 1." Article 20 (6) [Attachment Table 4] of the Enforcement Decree of the Management of Mountainous Districts Act. "If a farmer or fisherman installs a house and auxiliary facilities constructed to actually reside in a mountainous district under his/her own possession to minimize natural landscape and damage to forests and to prevent damage to forests and to prevent damage to forests," it does not fall under "it can be constructed using his/her existing forest roads," and the reason for the second disposition of this case additionally asserted by the defendant in the lawsuit of this case is that "the reason for the use of a multi-family house for the purpose of change need to be restricted to preserve natural scenery and prevent damage to forest, so it is recognized that it is necessary to deny the identity of multi-family.

B. Furthermore, as to whether there is a need for a significant public interest to accept the report of change in the use of this case, the following circumstances acknowledged by the court below, namely, ① the land of this case is located in mountain speed after setting a considerable distance from the neighboring residence; ② the use of forest roads, other than forest roads, which fall under mountainous districts under mountainous districts under the Mountainous Districts Management Act, for full-time access to a multi-family house is contrary to the original usage of forest roads installed for the management and management of the forest; ③ it is difficult to view that the Plaintiff reported the change in the use of this case for the purpose of actual residence, which the Plaintiff had already built a new house to reside in the vicinity of the land of this case for the management of agriculture and forestry; ③ it is difficult to deem that the Plaintiff reported the change in the use of this case for the purpose of actual residence (No.

In light of the fact that the building report was not accepted, ⑤ if the purpose of use of the warehouse of this case located in mountain-speed is permitted to be a multi-family house, it may lead to an indiscreet mountainous district development in the way similar thereto, 6) by entering the multi-family house in mountain-speed itself would seriously damage the natural landscape, protect the forest and prevent forest disasters, and at the same time, may not exclude the possibility of environmental pollution, such as water pollution and soil contamination, etc. caused by the discharge of household water, etc., unless there is any infrastructure, such as water supply, sewerage, etc., and if there is no infrastructure such as water supply, sewerage, etc., it is deemed necessary to prevent forest damage, conserve natural scenery, and prevent forest disasters, and thus, the disposition of this case which failed to accept the report of this case on the ground of the disposition is legitimate

C. Nevertheless, the lower court determined otherwise. In so determining, it erred by misapprehending the legal doctrine on the permissible standards for addition and alteration of grounds for disposition and the necessity of important public interest, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.