Plaintiff

The head of Yeongdeungpo-gu Seoul Metropolitan Government

May 29, 2013

Seoul Administrative Court Decision 2012Guhap7950 decided November 1, 2012

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. Alternatively, the Defendant’s disposition to approve the use of a building in 000 ○○○○○○○○○○○, a stock company (hereinafter “new world”) on August 11, 2009, is revoked or confirmed to be null and void. It is confirmed that the Defendant’s failure to take necessary measures following a violation of the Parking Lot Act, reinstatement, vicarious execution, corrective measures following a violation of the Act on the Promotion of Urban Traffic Improvement, corrective measures following the violation of the Act on the Promotion of Urban Traffic Improvement, corrective orders, imposition of enforcement fines, and disposition or act of violation on the building ledger is illegal (the Plaintiff’

1. Basic facts

(a) Extension of a department store in the new world and construction of a building exclusively for parking;

On August 11, 2009, the New World (hereinafter “instant approval for use”) obtained permission for extension from the Defendant with respect to the building B of the New World Department Store B (hereinafter “○○○○○○”) located in Seoul ( Address omitted) (hereinafter “○○○○○”) and obtained approval for use on August 11, 2009 (hereinafter “instant approval for use”). At that time, five parking lots were installed as attached parking lots and 131 parking spaces in total as 126 parking spaces.

On the other hand, on September 7, 2000, the new world had already obtained approval for the use of a parking-only building constructed to accommodate a total of 109 parking lots with indoor self-stocks parking lots, not attached parking lots, in the ○○○ point.

B. A resident inspection request of the plaintiff et al.

On June 27, 2011, the plaintiff et al. requested the Seoul Special Metropolitan City Mayor to conduct a resident audit with the following contents:

In the process of granting permission for the above extension to the new world and granting approval for its use, the Defendant secured only 121 parking spaces, not only the planned parking spaces, but also the 231 parking spaces as an attached parking lot under the Parking Lot Act and the Urban Traffic Improvement Promotion Act. With regard to the shortage, the Defendant established the “exclusive parking building” as an off-road parking lot rather than the “attached parking lot for facilities.” Therefore, the 000 store building constitutes a corrective measure or a non-performance penalty and an accusation.

[Reasons for Recognition] No dispute, Gap evidence Nos. 1 and 14, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's main defense

The instant approval for use is lawful and unlike otherwise, and the Defendant cannot impose a non-performance penalty on the ○○○ building on the ground that there is no illegality in the pertinent building. Ultimately, the Plaintiff does not constitute a resident who failed to impose public funds under Article 17(1) of the Local Autonomy Act, and thus, does not constitute a request for inspection. Therefore, the instant lawsuit is unlawful

B. Determination

In full view of the provisions and legislative purport of Articles 16(1) and 17(1) of the Local Autonomy Act, residents who requested the inspection of public funds such as local taxes, user fees, fees, fines for negligence, etc. may file a lawsuit against the head of a local government on the fact that they were negligent in an unlawful act or duties related to the matters subject to the request for inspection, if they fall under any of the subparagraphs of Article 17(1) of the Local Autonomy Act. Here, “the imposition of public funds” refers to not only the case where the imposition of public funds belonging to a local government is enforced by Acts and subordinate statutes, but also the case where the discretion of an administrative agency on whether to impose public funds, which are revenues belonging to a local government, is recognized. Therefore, it is reasonable to deem that the imposition of a charge for compelling the enforcement of

In addition, in the instant lawsuit, the requirements for residents’ lawsuit are satisfied by the Plaintiff’s assertion that the Defendant neglected to impose a non-performance penalty on the building at ○○○○○○○, and further, matters to be determined within the subject matter of a non-performance penalty.

Therefore, the defendant's main defense is without merit.

3. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The Defendant approved the use of this case under the condition that the attached parking lot of the ○○○ Building was illegally changed to a sales facility in 1996 and was not corrected. Moreover, at the time of the approval for the use of this case, the installation of the parking lot for the ○○○○○○○○○○○○○○○○○ at the time of the approval for the use of this case ought to be subject to the attached Table 3 and 11 of the Seoul Special Metropolitan City Ordinance on the Installation and Management of Parking Lots (hereinafter “instant Ordinance”). Therefore, the Defendant did not apply the instant approval for the use as unlawful, and thus, should be invalidated or revoked. In addition, the Defendant should take corrective measures, reinstatement, vicarious execution, corrective measures following the violation of the Urban Traffic Improvement Promotion Act, cancellation of the approval for use of this case due to the violation of the Building Act, corrective orders, imposition of enforcement fines, and disposition or act

B. Facts of recognition

(i) extension and alteration of use in 196;

On February 23, 1996, the new world established a parking space of 258 vehicles, including 34 vehicles above ground, 112 vehicles above parking zone, 146 vehicles around the department store, and 112 vehicles adjacent to the department store, and obtained approval for the extension and change of the purpose of use. This extension and change of the purpose of use was confirmed several times in the Board of Audit and Inspection, related litigation, etc.

(ii)Designation as restricted areas for the establishment of annexed parking lots;

As the provisions of Article 13-2 of the Ordinance of this case are newly established on January 15, 1997 in order to reduce the demand for parking and prevent traffic congestion in the urban commercial area, the ○○○ store was designated as an area subject to the restriction on the establishment of an annexed parking lot and the number of statutory parking lots was 92.8-11.2.

3)Transitional measures concerning the establishment of annexed parking lots;

Article 2 of the Addenda of the instant Ordinance (Transitional Measures concerning the Standards for Establishment of Attached Parking Lots) provides that “The previous provisions at the time this Ordinance enters into force shall apply to the standards for the establishment of annexed parking lots for which permission for installation of facilities has been obtained, or for which permission for construction or installation has been applied, pursuant to the previous provisions at the time this Ordinance enters into force, notwithstanding the amendments to the attached Tables 2 and 3: Provided, That this shall not apply where the previous provisions are unfavorable to

In addition, attached Table 3 subparagraph 11 of the Ordinance was newly established on September 29, 201.

4) The Seoul Special Metropolitan City Mayor's request for measures

On December 6, 2011, the Mayor of Seoul Special Metropolitan City requested the defendant to take measures to review whether the building that has formulated and deliberated traffic impact analysis and improvement plans under the Urban Traffic Improvement Promotion Act should comply with the Parking Lot Act in the case of building permission, etc., after conducting an audit on the basis of the request from the plaintiff et al. for resident inspection, "the construction standards for annexed parking lots under the Parking Lot Act (calculated by calculating the number of parking spaces for the increased area at the time of extension or by applying the principle of preference to the new law) and the installation standards for the permission and approval for use of the ○○ store shall be appropriate to take measures."

5) Defendant’s notification of the result of measures

After receiving documents on “a plan for installation of annexed parking lots” in the new world and examining whether to install a proper parking lot under the Parking Lot Act, the Defendant took complementary measures to the Mayor of Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City Mayor”) that “The alteration of the use of an annexed parking lot is possible in accordance with Article 2 of the Addenda to the instant Ordinance (amended by March 18, 2009) and Article 12(1)3 of the Enforcement Decree of the Parking Lot Act, so permission for extension and approval for use meet the standards for installation under the Parking Lot Act,” and the Mayor of Seoul Special Metropolitan City notified and published the results of the resident inspection request on February 7, 2012.

[Reasons for Recognition] Evidence Nos. 2, 3, 6, Evidence Nos. 1 and 2, the purport of the whole pleadings

C. Determination

In light of the above facts, the evidence submitted by the plaintiff at the first instance court and the appellate court alone is insufficient to recognize that the attached parking lot was an illegal building at the time of approval for the use of the building of this case (Article 16(2) of the Local Autonomy Act, since the resident inspection request cannot be filed after two years have elapsed since the date when the business was performed or the completion was completed, the approval for the use of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○)

4. Conclusion

The plaintiff's claim shall be dismissed as it is without merit. The dismissal of the lawsuit in this case by the court of first instance differs from this conclusion, but only the plaintiff appealed cannot change the judgment of the court of first instance disadvantageous to the plaintiff. Thus, the plaintiff's appeal is dismissed.

[Attachment]

Judges Ansan-jin (Presiding Judge)