In cases where a report on change of use of a building by a joint housing construction business entity meets the standards for the establishment of provisions on the former Housing Construction Standards, etc., whether an administrative agency may refuse to accept such report on change of use on grounds of other grounds

In light of the purport of Article 6(2) [Attachment 2] of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 18020 of Jun. 25, 2003) separates the subject matter of permission and the subject matter of permission for change of use from the subject matter of report, and classifys “where the purpose of use of non-resident-shared welfare facilities is changed to the extent that it meets the criteria for installation prescribed in the regulations on the Standards, etc. for Housing Construction,” it is reasonable to interpret that, as long as the report on change of use by a joint housing construction business operator meets the criteria for installation prescribed in the former Regulations on the Standards, etc. for Housing Construction (amended by Presidential Decree No. 18146 of Nov. 29, 2003),

Article 38 (2) proviso 1 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 42 (2) 1 of the Housing Act), Article 6 (2) [Attachment 2] (see current Article 47 (1) [Attachment 3] of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 18146 of Nov. 29, 2003), Article 55 (4) of the former Regulations on Housing Construction Standards (amended by Presidential Decree No. 18146 of Nov. 29, 2003)

Supreme Court Decision 97Nu6414 delivered on February 25, 2000

Plaintiff (Attorney Kim Young-chul, Counsel for plaintiff-appellant)

Head of Jeonju-si (Attorney Jeon Jong-ho, Counsel for the defendant-appellant)

Gwangju High Court Decision 2003Nu2075 decided May 13, 2004

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held that, under the evidence adopted by the court below, the childcare facilities under the Infant Care Act which are equipped with the size of facilities that enable 30 or more infants to take care of at least 500 households at all times in a housing complex where the housing complex is constructed with 500 households or more shall be established not later than the pre-use inspection of the relevant housing; however, if there is any childcare facilities within 300 meters of passage distance from the relevant housing complex, the provision that exceptionally requires not to take care of infants and infants, does not necessarily apply only to the time of the first housing construction project plan approval, and the provision that the same provision applies likewise to the case where infants and children were newly established within 300 meters of passage distance from the relevant housing complex after the approval of the housing construction project plan, and thus, the court below held that, in this case, the first housing construction plan approval of the housing construction project plan constituted the Plaintiff’s alteration of usage usage of the childcare facilities within 300 meters of the distance of 200 meters prior to the initial housing construction report.

In light of the purport of distinguishing between the subject matter and the subject matter of permission for change of use under Article 6(2) [Attachment 2] of the former Decree on the Management of Multi-Family Housing, the Defendant shall not refuse to accept the application for change of use on the ground of any other reason not prescribed by the relevant statutes unless the report on change of use in the purpose of this case satisfies the installation standards stipulated in the provisions on the housing construction standards, etc. of the former Housing Construction Standards. (See Supreme Court Decision 97Nu6414 delivered on February 25, 2000).

However, in light of the purport of Article 55 (4) of the former Housing Construction Standards, the main text of Article 55 (4) of the same Act requires the establishment of a nursery facility under the Infant Care Act, which has a scale of facilities that can care for not less than 30 infants on a regular basis, exceptionally exempted from the duty to do so. Thus, in order for the Plaintiff to consider that the report on the change of the use of the nursery facility in this case satisfies the above provision, it is necessary to consider whether the scale of the facility in the judgment of the court below meets the above provision. However, without examining the scale of the facility, the court below did not err in the misapprehension of the judgment of the court below because it concluded that the measure to refuse to accept the report on the change of the use of the nursery facility in this case was unlawful on the ground that there is a facility within the distance of the above provision. However, according to the evidence duly examined by the court below, the above application for change of the use of the nursery facility in this case can be deemed to have a scale of not less than 30 infants.

As the grounds of appeal, each nursery facility in the judgment of the court below is located at a location where the vehicle traffic is frequent in the instant housing complex, and there is a lack of additional capacity to accommodate, and the Plaintiff intends to withdraw unfair profits by selling at low prices the instant building, which is a nursery facility, and thus, the report on the change of the purpose of use of this case cannot be deemed to be within the scope that meets the standards for installation of incidental and welfare facilities as stipulated in the Housing Construction Standards, etc., but the submission of the report on the change of the purpose of use of this case cannot be denied due to such reasons as are not prescribed by the relevant Acts and subordinate statutes.

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 Jeon Soo-ahn (Presiding Justice)