[1] Whether new construction of a new gate that had not previously been made constitutes extension of a building (affirmative)

[2] Whether the main gate is subject to the restriction on the construction line (affirmative)

[3] If a building site was purchased after construction of a gate in violation of the criteria for the determination of the construction line and the construction line, whether the above construction act becomes legitimate ex post facto (negative)

[1] Article 2 (1) 2 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) / [2] Article 37 (1) of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) / [3] Article 36 (1) of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005)

Defendant

Defendant

Busan District Court Decision 2006No1971 Decided November 28, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. Since the main gate is a facility attached to a building, which constitutes a building stipulated in Article 2 (1) 2 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005; hereinafter “Act”), new construction of the main gate that had not previously existed constitutes an extension of a building, and if the extended area is not more than 85 square meters, it shall be reported to the competent authority in accordance with Article 9 (1) 1 of the Act.

On the other hand, Article 37 (1) of the Act provides that "a building or fence shall not go beyond the building line," and the main text of the Article 37 (1) of the Act is that the gate is a building, and the building line shall

The judgment of the court below to the same purport is just, and there is no error of misconception of facts or misunderstanding of legal principles as alleged in the grounds of appeal.

The argument in the grounds of appeal is not a building, but a building is based on the premise that the main gate constitutes a building stipulated in Article 72 (1) of the Act and Article 118 (1) of the Enforcement Decree of the Act, and thus cannot be accepted.

2. Article 36(1) of the Act provides that the building line shall be the boundary between the site and the road, and in a case where the width is less than four meters, the building line shall be the line set back at a horizontal distance equivalent to 1/2 of the distance from that centering around the road. Thus, the building line is determined according to the relation between the site and the road, and it does not have any relation with the ownership of the site or the road. Thus, even if the defendant purchased the site after the construction of the main gate in this case, it cannot be said that the construction violation of the building line becomes legitimate ex post facto.

The judgment of the court below to the same purport is just, and there is no error of misconception of facts or misunderstanding of legal principles as alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)