The scope of objects to be examined by an administrative agency that has received a report on the establishment of paid welfare houses for the aged under the Gu Welfare Act to determine whether to accept it

In full view of the purpose of the former Welfare Act (amended by Act No. 7452 of March 31, 2005), the provisions of the Acts and subordinate statutes concerning the establishment of welfare facilities for the aged, and various subsidies and benefits to the welfare facilities for the aged, etc., a person who has been granted a building permit under the tax reduction or exemption on the acquisition of the building site on the ground of the construction of welfare facilities for the aged and the application of the installation standards of auxiliary facilities relaxed compared to the general apartment, is obligated to take measures to ensure that the relevant facilities can be operated as welfare facilities for the aged, as a matter of course at the time of the report on the establishment of welfare facilities for the aged. Accordingly, an administrative agency that received a report on the establishment of a paid welfare facilities for the aged under Article 33(2) of the same Act shall comply with the above Acts and subordinate statutes as well as whether the paid welfare facilities for the aged are sold to the legitimate

Article 33 of the former Welfare of Older Persons Act (amended by Act No. 7452 of March 31, 2005), Articles 14 and 16 of the former Enforcement Rule of the Welfare of Older Persons Act (amended by Ordinance of the Ministry of Health and Welfare No. 317 of June 8, 2005)

Comprehensive Construction (Law Firm Barun, Attorneys Park Jae-sik, Counsel for the plaintiff-appellant)

Pakistan Market (Law Firm Ilsan, Attorneys Death-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Nu22458 delivered on July 28, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Article 1 of the former Welfare Act (amended by Act No. 7452 of March 31, 2005; hereinafter “Act”) declares that the purpose of the Act is to contribute to the promotion of health and welfare of the aged through the maintenance of mental and physical health and the stabilization of livelihood of the aged. Article 33(2) of the Act provides that “where any person other than the State or a local government intends to establish residential welfare facilities for the aged, he/she shall report to the Mayor/Do Governor.” Article 34(3) of the Act provides that “where such person intends to establish residential welfare facilities for the aged, matters necessary for standards for establishing facilities, human resources and operation of residential welfare facilities for the aged, etc.” Article 14(1) of the Enforcement Rule of the Housing Act provides that housing welfare facilities for the aged, care facilities for the aged, care facilities for the aged, actual expenses, and fee-charging welfare facilities for the aged, etc. shall be limited to persons who are subject to the establishment of the residential welfare facilities for the aged, and the standards for installation of the residential welfare facilities for the aged shall be limited to 3).

In full view of the aforementioned provisions of the Acts and subordinate statutes concerning the establishment of welfare facilities for the aged as well as various assistance and benefits to the welfare facilities for the aged, a person who has been granted a building permit by reduction of or exemption from taxes on the acquisition of the building site on the ground of constructing the welfare facilities for the aged and by applying the installation standards of auxiliary facilities less relaxed than the general apartment, is obligated to take measures so that the relevant facilities can be operated as the welfare facilities for the aged as a matter of course at the time of the report on the establishment of the welfare facilities for the aged. Therefore, an administrative agency, upon receipt of the report on the establishment of the paid welfare facilities for the aged under Article 3(2) of the Act, may examine whether the paid welfare facilities for the aged conform to the above Acts and subordinate statutes and whether the paid welfare facilities for the aged are sold to persons

The court below, after compiling the adopted evidence, found the facts as stated in its decision, and found that the housing of this case constructed by the defendant as a welfare facility for the aged was sold to the aged 60 years or older after the building permit, but since some households' right to sell or ownership after the sale were transferred to the persons under 60 years of age, and as long as the disqualified persons who are similar to about 70% of the non-qualified persons were admitted at around the time of the report of this case, the defendant's rejection of the report of this case on the ground that they were admitted to such disqualified persons was lawful. In light of the above legal principles and records, the court below's fact-finding and determination are just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the scope of housing welfare facility for the aged,

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)