(a) Whether a building for amusement facilities can not be constructed even if it is located in a general residential area (affirmative), and whether the said building may include, or become, amusement facilities such as slot electricity business establishments in accommodation facilities for tourist accommodation business (negative);

(b) Whether the provisions of Article 7 of the Tourism Promotion Act, which provide for the registration of tourist accommodation business and tourist-use facility business, shall be deemed to have obtained permission from the competent authorities or deemed to have been reported, is an example regulation (negative), and whether the subject thereof also includes permission for change of use under the Building Act (negative)

(c) Whether a person who has registered a tourist accommodation business may establish and operate amusement facilities, such as various amusement restaurants, within the said accommodation facilities (negative);

(d) Whether permission to change the purpose of use provided for in the Building Act should be obtained even if a person has obtained permission to engage in speculative business so that he/she may install and operate a amusement room in a tourist accommodation facility under the Issuance of Lottery Tickets, Prize Contests, and other Speculative Acts (affirmative)

A. According to Article 66(1)2 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 12845 of Nov. 20, 1989), among buildings that cannot be constructed within a general residential area, Article 6(1)2 of the attached Table 66(6) and (8) of the attached Table 2 of the Enforcement Decree of the Building Act excludes tourist accommodation for accommodation facilities, but there is no exception to the amusement facilities. Therefore, it is clear that a building used for amusement facilities within a general residential area can not be constructed even if it is within a tourist accommodation facility. In addition, Article 2(1)12 of the attached Table 12 of the Enforcement Decree of the Building Act provides that accommodation facilities and amusement facilities as separate buildings, and Article 3(1)2 of the Tourism Promotion Act provides that a tourist accommodation business is a business that provides tourists with facilities suitable for accommodation and provides them with food and drink. Thus, it is evident that the accommodation facilities of a tourist accommodation business are included in an electrical business, or incidental facilities.

B. According to the provisions of Article 7 of the same Act, when a tourist accommodation business or a tourist-use facility business is registered, permission, authorization, approval, designation, recognition, etc. of the competent authorities for the business in question shall be deemed to have been obtained, or reported to the competent authorities. However, among the matters falling under any of the following subparagraphs, permission for change of use under the Building Act is not included in the permission for change of use under the same Act, and the above provision shall not be deemed to be an exceptional provision and a restrictive provision, so it cannot be interpreted that permission for change of use under the Building Act

(c) Entertainment facilities, such as amusement restaurants, etc., are amusement facilities, and do not fall under facilities for tourist accommodation business under Article 3 (1) 3 of the Tourism Promotion Act, and do not fall under facilities for tourist accommodation business under Article 3 (1) 2 of the same Act. Thus, it cannot be deemed that a person who has registered a tourist accommodation business, is able to install and operate various amusement facilities, such as amusement restaurants, etc

D. Even if a person obtained permission for the operation of a entertainment facility pursuant to the former Act on the Regulation of Speculative Acts, Etc. (amended by Act No. 4339 of Mar. 8, 1991), the Control Act and the Building Act differing from the purpose of the legislation and the subject of the restriction, and there is no ground to view that the Control Act are applied exclusively in preference to the Building Act, and thus, a permission for change of use should be obtained in accordance with the requirements prescribed by the Building Act.

A. Article 3(1)(a) of the Tourism Promotion Act. Article 32 of the former Building Act (amended by Act No. 4381, May 31, 1991); Article 66(1)2(b) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12845, Nov. 20, 1989). (d) Article 48(2) of the same Act. Article 7(d) of the former Tourism Promotion Act. Article 3 of the former Act on the Regulation of Speculative Acts, Etc. (amended by Act No. 4339, Mar. 8, 1991)

Attorney Kim Young-chul, Counsel for the defendant-appellant

The head of Dobong-gu Seoul Metropolitan Government

Seoul High Court Decision 90Gu5193 delivered on June 26, 1991

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

The defendant litigant's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the building of this case is a general residential area under the Urban Planning Act on 14th, Seoul, where the building of this case is located by macroficing evidence, but on the other hand, the building of this case is an appurtenant building to the above hotel constructed around 1967 on the site of the tourist hotel business (class 2) located in Dobong-gu Seoul, which is operated by the plaintiff under the Tourism Promotion Act. According to Article 32(1) of the Building Act, Article 66(1)2 of the Enforcement Decree of the Building Act and Article 66(1)12 of the Enforcement Decree of the same Act and Article 2(14) of the same Enforcement Decree of the same Act, it is not allowed to change the use of the building of this case to the amusement facilities (the amusement facilities) located in the tourist hotel business (the building of this case, which is located within the general residential area, and the Minister of Construction and Transportation may not receive any restrictions on the use of the building of this case as stipulated under Article 7(1) of the Enforcement Decree of the Food Sanitation Act.

2. However, pursuant to Article 6(1)2 of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 12845 of Nov. 20, 1989), among buildings which cannot be constructed within a general residential area, Article 6(1)2 of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 12845 of Nov. 20, 1989), there are no exceptions to the exclusion of tourist accommodation, but there is no such exceptions to the amusement facilities. Therefore, it is clear that a building used for amusement facilities within a general residential area can not be constructed even if it is within a tourist accommodation, and Article 2(1)12 of the Enforcement Decree of the Building Act and Article 12 and Article 14 of the Addenda of the Enforcement Decree of the Building Act provide that accommodation facilities and amusement facilities are separate buildings, respectively, and Article 3(1)2 of the Tourism Promotion Act provides that a tourist accommodation business is a business that provides tourists with facilities suitable for accommodation and provides them with food.

In addition, according to the provisions of Article 7 of the Tourism Promotion Act, when the registration of tourist accommodation business and tourist-use facility business is made, matters falling under any of the subparagraphs of the same Article shall be deemed to have been permitted, licensed, approved, designated, or recognized by the competent authorities or to have been reported to the competent authorities. However, among those matters falling under any of the following subparagraphs, permission for change of use under the Building Act is not included in the permission for change of use under the same Act, and the above provisions shall not be deemed to be an exceptional provision and an exceptional provision, so it shall not be deemed that permission for change of use under the Building Act is included in the permission for change of use under the same Act. Furthermore, it shall not be deemed that entertainment facilities, such as amusement restaurants, etc., which are presented by the judgment of the court below, fall under the amusement facilities of tourist-use facility under Article 3 (1) 3 of the Tourism Promotion Act, and it shall not be deemed that they can naturally install and operate various amusement facilities, such as entertainment restaurants, etc.

Meanwhile, according to the records, even though the Plaintiff was found to have established and operated a entertainment room within a tourist accommodation facility with a license for speculative business (scambling electricity) under the Issuance of Uniforms and Other Speculative Acts as of March 18, 1986, the above Control Act and the Building Act vary in legislative purpose and regulatory objects, and there is no ground to view that the above Control Act are applied exclusively in preference to the Building Act. Thus, even if the Plaintiff obtained a license for business under the above Control Act, it is no longer likely that the Plaintiff should obtain a license for change of purpose of use to meet the requirements under the Building Act.

As long as a building located within a general residential area under the Urban Planning Act is recognized as accommodation or appurtenant building of a tourist hotel under the Tourism Promotion Act, it is reasonable to interpret that the building does not be restricted to the use of the building located within a general residential area under the Building Act, and the defendant's disposition of this case which rejected the application for permission to change the use of the building of this case, which is an appurtenant building of a tourist hotel, was unlawful. It is erroneous in the misapprehension of the legal principles of the Building Act as to the restriction on the change of use of the building in a general residential area, and this affected the conclusion

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)