Korea Electric Power Corporation (Attorney Lee Jae-tae, Counsel for defendant-appellee)

The head of Yongsan-gu Seoul Metropolitan Government

Busan Apartment Development Promotion Committee (Law Firm Daba, Attorneys Cho Dong-se et al., Counsel for the defendant-appellant)

March 8, 2005

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

On October 2, 2003, the Defendant revoked the disposition of accepting applications for building permission against the Plaintiff.

1. Details of the disposition;

A. On September 25, 2003, the Plaintiff filed an application for a building permit of 154 km-V transformers on the ground of the first floor above the ground (the total area of the above two parcels of land added up) on the Han River-ro, Yongsan-gu, Seoul and 231-30, 244-2 site, 7,175.2 square meters (hereinafter referred to as the “instant land”).

B. On this basis, the Defendant issued the instant disposition rejecting the application for the said building permit on October 2, 2003 on the ground that the said land and part of 231-24 of the said 231-30 and 241-24 of the said 231-2 square meters of the said 231-30, 244-2 and the said 7,175.2 square meters of the said 24-2 square meters of the said 331-2 square meters of the said 231-30 and the said 231-24 square meters of the said 24-2 square meters of the said 331-

[Ground for recognition] Unsatisfy, Gap evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The grounds for the disposition of this case by the Defendant are not the grounds for limiting the building permit under the relevant laws and regulations, and thus, the Defendant’s refusal of the permission is unlawful.

B. Relevant statutes

Building Act

Article 8 (Building Permits)

(1) A person who intends to construct or make a large-scale repair falling under any of the following subparagraphs shall obtain permission from the head of a Si/Gun/Gu: Provided, That in cases where he/she intends to construct a building of 21 stories or more and the use and scale of which are prescribed by Presidential Decree in the Special Metropolitan City or Metropolitan Cities, he/she

1. A person who intends to construct or repair a building in an urban area and Class-II district unit planning zone designated under the National Land Planning and Utilization Act;

(3) A person who intends to obtain permission pursuant to paragraph (1) shall submit to the permission granter an application for permission accompanied by the basic design documents referred to in paragraph (2).

(4) Where the permission granter intends to grant permission pursuant to the provisions of paragraph (1), he/she shall confirm whether the construction of a building for the purpose, size or type of use is in conformity with the provisions of Articles 33, 37, 45, 47 through 49, 51, 53, 54, and 67 of this Act, Articles 54, 56 through 62, and 76 through 82 of the National Land Planning and Utilization Act, the proviso other than each subparagraph of Article 11 (1), Articles 12 and 14 of the Act on Special Measures for Designation and Management of Development Restriction Zones, Articles 34 and 36 of the Farmland Act, and other relevant Acts and subordinate statutes prescribed by Presidential Decree.

National Land Planning and Utilization Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

2. The term "urban planning" means a plan for the spatial structure and direction-setting for development to be formulated for the jurisdictional areas of the Special Metropolitan City, Metropolitan Cities, Sis, or Guns (excluding Guns located within the jurisdictional areas of the Metropolitan City; hereinafter the same shall apply), which

4. The term "urban management planning" means the following plans concerning land use, transportation, environment, landscape, safety, industry, information and communications, health, welfare, security, culture, etc., which are formulated for the development, maintenance and preservation of the Special Metropolitan City, a Metropolitan City, a Si, or a Gun:

(e) Plans for designation or alteration of a district unit planning zone and district unit planning;

5. The term "district planning" means an urban management planning to rationalize land utilization, to improve its functions, to improve the favorable environment, and to systematically and systematically manage the relevant areas in a part of the areas subject to formulation of urban planning;

6. The term “infrastructure” means the following facilities and prescribed by the Presidential Decree:

(c) Distribution and supply facilities, such as distribution business facilities, water, electricity and gas supply facilities, broadcasting and communications facilities, and utility tunnels;

13. The term "public facilities" means roads, parks, railroads, waterworks, and other public facilities prescribed by Presidential Decree;

Article 54 (Construction, etc. in District Unit Planning Zone)

Where a building is constructed or a purpose of use of a building is altered within a district unit planning zone, it shall be constructed or altered in compliance with such district unit planning: Provided, That the same shall not apply to cases where a district unit planning is not formulated and where a building is constructed by phases with a difference located within the scope of a

(c) Fact of recognition;

(1) During the period from July 6, 200 to July 19, 2000, the Mayor of Seoul Special Metropolitan City announced the public inspection of the Yongsan District Unit Planning containing the land of this case under Article 200-447 of the Seoul Special Metropolitan City Notice, and hearing the opinions of residents and interested parties, but the Plaintiff did not present its opinion.

(2) The Mayor of Yongsan-gu Seoul Special Metropolitan City determined and publicly announced the Yongsan-gu District Unit Planning on July 11, 2001 as the Seoul Special Metropolitan City Notice No. 2001-229, which is part of 6,739.41m2, which is part of 231-22 site and 8,190m2, which is part of 6,739.41m2 (round 28, 2003, the Plaintiff divided the part corresponding to the construction site of public facilities according to the district unit plan, and was granted a lot number of 231-30m24 lot number after dividing it into the part corresponding to the construction site of public facilities according to the district unit plan), while the use of the building site in the land use plan on the district unit plan was determined as “public facilities”, the remaining land and the building site area remaining after dividing it from the above 231-22 site owned by the Plaintiff into the residential area unit plan, and the remaining land and the building area remaining after dividing it into the residential area boundary of the Plaintiff’s.

(3) On August 28, 1997, the Plaintiff obtained the designation of the implementer of the urban planning project and the authorization of the implementation plan, and on August 30, 2001, the Plaintiff completed the construction of the electric transmission and distribution underground power outlet, which is the pre-stage stage work to install the triangular substation on the instant land.

(4) The Plaintiff filed an application for the first building permit on June 26, 2003 with a view to constructing a substation on the ground of 231-22 (Before subdivision) and 244-2 site 8.626.10 square meters in Yongsan-gu Seoul Metropolitan Government.

(5) In light of the fact that a district unit planning is established on the premise that the district unit planning was established under the premise that the Plaintiff’s application for a building permit was planned only on the land owned by the Plaintiff except for the land owned by the public facilities among the land owned by the Plaintiff and the land owned by the public facilities, and that it would hinder the development of a quasi-residential area adjacent to the continuous respect of the building site determined as a public facilities on July 14, 2003 because the content of the application for a building permit is planned only on the land owned by the Plaintiff except for the land owned by the public facilities among the land owned by the land owned by the public facilities, and that it is anticipated that the development of a quasi-residential area adjacent to the continuous respect of the building site determined as a public facilities is likely to be impeded.

(6) On August 4, 2003, the Plaintiff: (a) divided the same 231-22 large scale 8,190.4 square meters into the same 231-22 large scale 1,450.9 square meters; and (b) applied for the second conversion of the same 231-30 large scale 6,739.5 square meters in the district unit plan; (c) applied for the said 231-22 site and 1450.9 square meters in the same 231-22 site and the same 231-30 site and the same 244-2 site and the same 435.70 square meters in the general commercial site and the same 244-2 site and the same 435.20 square meters in the same area; (d) on August 1, 2003, the Defendant rejected the said building permit on the same ground as the above 201th 7th 203.

(7) On September 25, 2003, the Plaintiff filed an application for the third building permit with the same content as the application for the second building permit. However, the Defendant rejected the application for the building permit on October 2, 2003 on the ground that part of the land owned by the Plaintiff and the third building site determined by the Seoul Special Metropolitan City Notice No. 2001-229 is a district unit planning zone, and the use of the Plaintiff’s land use plan is determined as a “public facility site” and the use of the building site is established only on the land owned by the Plaintiff except for the quasi-residential area as determined as a “public facility site.”

[Reasons for Recognition] Unsatisfy Facts, Gap evidence 1, Eul evidence 2, Eul evidence 3, Eul evidence 4-1, 2, Eul evidence 5-1, 2, Gap evidence 5-6, Gap evidence 7-1, 2, Gap evidence 8, Gap evidence 9, Gap evidence 10, Gap evidence 11, Gap evidence 12-1, 2, Eul evidence 1-2, Eul evidence 1-2, 2, Eul evidence 2-2, Eul evidence 3, Eul evidence 4, Eul evidence 5-1, 2, Eul evidence 21, testimony of new witness again, the purport of whole pleadings

D. Determination

(1) Unless the application for a building permit is contrary to any restrictions stipulated by the relevant laws and regulations, such as the Building Act and the Urban Planning Act, a building permit holder shall, as a matter of course, grant a building permit under the said relevant laws and regulations, and cannot refuse on grounds other than those subject to restrictions stipulated under the said relevant laws and regulations. However, under Article 54 of the National Land Planning and Utilization Act and Article 8(4) of the Building Act, where a building is to be constructed or to alter the purpose of use of a building in a district-unit planning zone, a building permit holder shall either construct or alter the purpose in conformity with the relevant district-unit plan, and where a building permit holder intends to construct a building in a district-unit planning zone or to alter the purpose of use of a building in a district-unit planning zone, he/she shall confirm whether the construction of a building in a site intended for such purpose, scale or form is appropriate for the said district-unit planning zone. However, the district-unit plan is an urban planning established to rationalize the use of part of an urban planning zone and to secure good environment (Article 2 subparag. 5).

(2) According to the above facts, in order to promote the standardized and efficient use of land according to the purpose of use of the land of this case, part of the site of this case 231-24, which is the land owned by the plaintiff, is determined as public facility site in Yongsan-gu Seoul, Yongsan-gu, Seoul, and part of the same site of this case 231-24, which is the land owned by the plaintiff, was designated as a district unit plan to adjust the land area of the same 231-22 and 231-24, which is the land owned by the plaintiff, from the general residential area to a quasi residential area. In addition, if the construction is permitted at the plaintiff's request, part of the land of the land of Sejong-dong B, which was drafted as a public facility site and which did not meet the requirements of public facilities except for the transformation station, will cause serious damage to the property rights of one party of the district unit plan. Accordingly, the plaintiff's claim on the construction permission of this case is without merit under Article 8 (4) and (4) of the Building Act.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Chang-suk (Presiding Judge)