(영문) 서울고등법원 2020.11.04 2020누39220

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울고등법원 2020.11.04 2020누39220

관리처분계획무효확인

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except where the following is added to the 10th 12 of the judgment of the court of first instance. Thus, it is acceptable to accept this as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

(4) Article 26 subparag. 3 of the former Ordinance on Urban Improvement provides that “The area owned by the previous building shall be based on the building ledger of each building owned as of the base date of the management and disposition plan, but the area of the building constructed in violation of the statutes shall be excluded: Provided, That where the articles of incorporation, etc. are separately determined, it may be based on the property tax

Article 46 (2) of the defendant's articles of incorporation shall be based on the building ledger for each building owned as of the base date of the management and disposal plan.

Provided, That it may be based on the property tax ledger or survey results for the previous buildings not registered in the building management ledger:

In such cases, in the case of an unauthorized building with illegally constructed part, it means the area added to the existing unauthorized building.

except for the purposes of this section

The provisions of the former Ordinance on Urban Improvement and the Defendant’s Articles of Incorporation clearly stipulate that the ownership area of the previous building should be based on the building ledger. Each of the above provisions does not stipulate that the ownership area of the previous building should be included in the part actually used for residential purpose, different from the building ledger. Even if the Plaintiff actually used the part of 26.45 square meters of the first floor of the instant building for residential purpose, it cannot be deemed that the use of the previous building was legally changed as a house unless the Plaintiff obtained permission for change of use or reported change of use.

The portion actually used for residential purpose is included in the ownership area of the previous building.

참조조문

-민사소송법 제420조

-행정소송법 제8조 제2항

유사 판례

-서울북부지방법원 2017.09.20 2017가단118022

-서울행정법원 2009. 2. 17. 선고 2008구합42765 판결

-서울동부지방법원 2015.06.05 2014나23265

-서울행정법원 2008.11.6.선고 2008구합26718 판결

-서울고등법원 2020.04.16 2019누53381