Procedural requirements for the use of sales facilities of multi-family housing as small pharmacies

A pharmacy in a small scale (the total floor area is less than 500 square meters) falls under neighborhood living facilities prescribed in Article 4 (4) 1 of the attached Table of the Enforcement Decree of the Building Act (the classification of the use of the building) and the permission of the Minister of Construction and Transportation shall be obtained in accordance with Article 6 (1) and (2) and subparagraph 1 of attached Table 2 of the Multi-Family Housing Management Act where it is intended to use a sales facility which is a welfare facility for multi-family housing as a pharmacy belonging to a medical facility.

Article 38 of the Housing Construction Promotion Act, Article 6 of the Decree on Management of Multi-Family Housing

Plaintiff

Attorney Kim Dong-hwan, Counsel for the defendant-appellant

Seoul High Court Decision 88Gu232 delivered on November 15, 1988

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. According to Articles 38 (2) 1 and 38 (3) of the Housing Construction Promotion Act (hereinafter referred to as the "Act"), occupants and business operators of multi-family housing and incidental facilities and welfare facilities shall not use multi-family housing and their incidental facilities and welfare facilities for purposes other than those stipulated in a project plan, except for cases where permission is obtained from the Minister of Construction and Transportation according to the standards for permission prescribed by Presidential Decree. According to Article 6 (1) and (2) and attached Table 2 of the Decree on the Management of Multi-Family Housing (the standards for permission, such as alteration of use of multi-family housing, their incidental facilities and welfare facilities, etc. under Article 31 (1) 1 and (3) of the Housing Construction Promotion Act (hereinafter referred to as the "Act"), it shall be prescribed that public sports facilities shall be permitted only when approval is obtained from the council of occupants' representatives, and Article 3-7 of the Act, Article 4 of the Enforcement Decree of the same Act, Article 3 of the Enforcement Decree of the same Act, Article 19 through 28 of the Enforcement Rule of the Act, etc.

In addition, according to Article 34 of the Regulations on Standards for Housing Construction, which provides for sales facilities among welfare facilities, sales facilities shall be stores for food, clothing, phrases, fruits, sports equipment, and other necessities of life and goods deemed necessary for the convenience of the occupants (Paragraph 2), sales facilities and neighborhood living facilities, hospitals, and management offices may be installed in a building with sales facilities. In this case, the floor area used for purposes other than sales facilities shall not exceed 1/2 of the total floor area of the building (Paragraph 3). In accordance with Article 25 of the Rules, which provides for medical facilities, a pharmacy, a clinic, or a hospital shall be established. Since it is evident that a pharmacy "use according to the business plan" belongs not to a sales facility, but to a medical facility. Thus, using sales facilities, which are welfare facilities of apartment houses, as a pharmacy belonging to a medical facility, after changing the business plan under Article 38 (2) 1 of the Act into a small-scale welfare facility under Article 38 (2) 2 of the Enforcement Decree of the Building Act.

2. However, according to the Gap evidence Nos. 3 (Building Management Book), the court below rejected the judgment below, it can be recognized that the building management ledger was registered as sales facilities and neighborhood living facilities, and the second floor △△△△△△△ (29.31 square meters) of this case's store is registered as sales facilities. Thus, it is the theory that the use classification on the building ledger is in accordance with Article 2 (1) 12 of the Enforcement Decree of the Building Act and its accessory table, and it does not necessarily coincide with the usage classification under the Housing Construction Standards Rules. However, according to the evidence Nos. 6-3 (Building Business Plan) of the Act, the court below rejected the judgment, based on the above evidence No. 6-3 (Building Business Plan), it is clear that the business plan for the establishment of the pharmacy in the building management ledger was approved separately as the medical facilities other than the welfare facilities, and therefore, it is not a medical facilities among the welfare facilities.

3. If so, the court below's determination that the plaintiff's assertion based on the other statutory interpretation is just and there is no ground for misunderstanding the legal principles on Article 16 (2) of the Pharmaceutical Affairs Act, Article 4 and Article 5 of the Enforcement Decree of the same Act, Article 2 of the Act on the Facility Standards for Manufacturing, Export and Import and Sales Business of Pharmacies, etc., and Pharmaceutical Drugs, etc., and Article 38 (2) and (3) of the Housing Construction Promotion Act, or Article 6 of the Decree on the Management of Multi-Family Housing, and Article 6 of the Decree on the Management of Multi-Family Housing to use the store of this case, which is a sales facility, for the purpose of changing the purpose of use into small-scale pharmacies under the Regulations on the Standards for Housing Construction, and Article 6 (1), (2), and subparagraph 1 of the attached Table 2 of the Enforcement Decree of the Multi-Family Housing Act.

4. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jae-sung (Presiding Justice)