Where the Administrator of the Cultural Heritage Administration does not permit an application for alteration of the current state of State-designated cultural heritage to construct a new building on a site adjacent to a protection zone of State-designated cultural heritage, the case holding that it is difficult to conclude that the non-permission

The case holding that it is difficult to conclude that the rejection of an application for alteration of the current state of State-designated cultural heritage is an illegal disposition that deviates from or abused its discretion, in light of the following: (a) where the Administrator of the Cultural Heritage Administration does not permit an application for alteration of the current state of State-designated cultural heritage to construct a new building on a site adjacent to a protection zone of State-designated cultural heritage; (b) where a considerable size of a building is entering a site, there is a substantial high possibility of undermining the landscape of State-designated cultural heritage including the protection zone;

Article 20 subparagraph 4 of the Cultural Heritage Protection Act; Article 18-2 (2) 2 (c) of the former Enforcement Rule of the Cultural Heritage Protection Act (amended by the Ordinance of the Ministry of Culture and Tourism No. 77 of July 14, 2003); Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm Ho, Attorneys Kim Yong-ok et al., Counsel for plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Jeong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2003Nu21024 delivered on August 11, 2004

The judgment below is reversed, and the case is remanded to Seoul High Court.

1. The lower court: (a) based on the newly constructed 41-1 of the instant building that the Plaintiff had a significant impact on the construction of the adjoining 4th floor of the building, and thus, (b) the construction of the instant 4th floor and the construction of the instant 4th square meters away from the boundary of the neighboring 4th, and thus, (c) the construction of the instant 4th floor and the neighboring 4th square meters away from the construction of the instant 4th floor; (d) the construction of the instant 4th square meters away from the construction of the instant 4th and its neighboring 4th floor; and (e) the construction of the instant 4th square meters away from the construction of the instant 4th adjoining 7th square meters of the instant building, and thus, (e) the construction of the instant 4th adjoining hill building and its neighboring 5th square meters away from the construction of the instant 4th square meters away from the construction of the instant building, and (e) the instant 4th square meters away from the boundary of the instant 434th square meters.

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

Article 20 Subparag. 4 of the Cultural Heritage Protection Act provides that a person who intends to carry out a “State-designated cultural heritage and activities prescribed by the Ordinance of the Ministry of Culture and Tourism, which may affect the preservation of the State-designated cultural heritage and its protection zone, shall obtain permission from the Administrator of the Cultural Heritage Administration.” Accordingly, Article 18-2(2)2(c) of the former Enforcement Rule of the Cultural Heritage Protection Act (amended by the Ordinance of the Ministry of Culture and Tourism No. 77 of July 14, 2003) provides that one of the above acts is “the act of installing or enlarging buildings or facilities in an area within 500 meters from the outer boundary of the State-designated cultural heritage and its protection zone, which

According to the records, the Plaintiff’s application for the alteration of the current state of this case is deemed to newly construct the instant building on the instant land, which is a site. Although the instant building to be newly built by the Plaintiff is one story, the site area is 2,245 square meters, and the area of each story is 1,597 square meters, 1,300 square meters, 200 square meters underground and underground floors, and height is 5.85 meters, and it is a building with approximately 62 meters wide and 35 meters long, and its basic structure is reinforced concrete and steel structure is adjoining to the boundary of the Hong hill protection zone where the protected forest was created, and even if there is a parking lot between the above protected forest and Hong hill, it is difficult for the Defendant to recognize the alteration of the current state of the instant building as part of the red hill, and even if there is considerable possibility that the construction of the instant building, which is an area adjacent to the instant land, may be revoked by the Enforcement Rule of the Cultural Heritage Protection Act (Article 28 of the Cultural Heritage Protection Act).

3. Nevertheless, the court below determined that the disposition in this case was an unlawful act of deviation from or abuse of discretionary authority on the ground of the circumstances stated in its holding. Thus, the court below erred by misapprehending the legal principles on deviation or abuse of discretionary authority, which affected the conclusion of the judgment.

4. Therefore, 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.

Justices Son Ji-yol (Presiding Justice)