A. Whether a new disposition may be deemed to be a new disposition if the expression of intent for rejection of the same application after the rejection disposition is clearly stated (affirmative) and in this case, the guidelines for the progress of the period of administrative appeal and administrative litigation (=the point of time

B. Whether rejection of an application for division of land by a cadastral authority is an administrative disposition subject to appeal litigation (affirmative)

C. The purport of Article 39-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991) that limits the partition of a site where a building is located

(d) Relationship between the intent to divide land under the Cadastral Act, the cadastral survey, or the permission to divide land under the Urban Planning Act;

A. The rejection disposition is established by an administrative agency's declaration of rejection against a citizen's application for a disposition and, thereafter, if the administrative agency again expresses its intention of rejection against the same application, it shall be deemed that there is a new disposition. In this case, the period of time allowed for administrative appeal and administrative litigation shall be followed by each disposition.

B. Where the competent authority in the cadastral record refuses an application for land division pursuant to Article 17(1) of the Cadastral Act and Article 20(1)1 of the Enforcement Rule of the same Act, even though the owner of one parcel becomes different or the landowner needs to apply for land division, the competent authority in the cadastral record refuses the application, even if the refusal of land division does not cause any change in the landowner’s ownership, the number of land shall be determined in accordance with the relevant provisions, such as Article 15 of the Registration of Real Estate Act and Articles 3 through 6 of the Cadastral Act, on the basis that the essential requirement of the land in the cadastral record under the same Act is determined in order to register one parcel of land in several pieces of lots of lots of lots of lots of land, each parcel of land shall be registered in the cadastral record, as prescribed by the same Act. Unless this procedure is completed, the owner of land may not take necessary disposition, such as the transfer of ownership to his own part of land, the creation of mortgage, etc., and in particular, even if the owner of one parcel of land becomes different, it may not affect the rights of the people’s.

C. The provisions of Article 39-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991) are limited to the ratio, etc. of the building size to the site horizontal water, not to purport that the division of the site itself and the transfer of ownership are restricted by legitimate reasons.

D. “Subdivision of land” refers to an act that the competent authority registers one parcel of land recorded in the cadastral record with two or more parcels of land and with the registration in the cadastral record. Here, the division means the division of the boundaries in the drawings registered in the cadastral record, which also includes the rearrangement of the land cadastre, but is different from the procedure of cadastral surveying which is essential prior thereto, as well as from the permission of land division conducted by the competent administrative agency under the Urban Planning Act.

A. Article 18 of the Administrative Appeals Act, Article 20(b)(d) of the Administrative Litigation Act, Article 17(1) of the Cadastral Act, Article 20(1)1(b) of the Enforcement Rule of the same Act, Article 19(c) of the Administrative Litigation Act, Article 39-2(d) of the former Building Act (amended by Act No. 4381, May 31, 191); Article 2 subparag. 13 of the Cadastral Act, Article 4(1) of the Urban Planning Act, Article 2 subparag. 1 of the Land Survey Act

A. Supreme Court Decision 81Nu37 delivered on July 27, 1982 (Gong1982,823) 91Nu10292 delivered on June 11, 1991 (Gong1991,1935) 92Nu1643 delivered on October 27, 1992 (Gong1992,314) B. Supreme Court Decision 83Meu135,1136 delivered on March 27, 1984 (Gong1984,69) 90Meu25208 delivered on December 7, 1990 (Gong191,441)

[Defendant-Appellee] Plaintiff 1 and 1 other

Attorney Yoon Young-young, Counsel for the defendant-appellant of Sung-nam City

Seoul High Court Decision 91Gu10598 delivered on April 2, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. The court below acknowledged the following facts based on adopted evidence.

(A) The Plaintiff, a company established for the purpose of market establishment and operation around March 1970, has purchased the Gyeonggi-si ( Address 1 omitted) Daegu-si ( Address 2 omitted) large 415 square meters ( Address 2 omitted) and changed to ( Address 2 omitted) large 3,361.4 square meters; hereinafter “market site in this case”) and completed the registration of ownership transfer on July 3 of the same year, and established and operated a market by constructing the central market office building at 306 square meters on that ground.

(B) According to the basic plan, the Seoul Special Metropolitan City had implemented the Gwangju Complex Project in the Japan of the instant market site, the Plaintiff entered into a sales contract with the Seoul Special Metropolitan City and the Plaintiff on June 1 of the same year to settle the amount of the above 415 square meters at the ordinary rate of 350 won, which is the expropriation price for the entire answer of Seoul Special Metropolitan City, on the condition that the Plaintiff shall appraise the market price at around that time and make the amount of 1,000 square meters in the vicinity including the instant market site at the market price in accordance with the other market site. Accordingly, on June 12 of the same year, the Plaintiff entered into a sales contract with the Seoul Special Metropolitan City and the Plaintiff to settle the price after deducting the above 1,00 square meters from the price for the entire answer of Seoul Special Metropolitan City.

(C) The instant market site had been registered for ownership transfer in the name of Sungnam City through the name of Gyeonggi-do, and the ownership transfer registration was made in the name of Sungnam City ( Address 2 omitted). On September 7, 1974, the said lot number was closed as of September 7, 1974. On the other hand, the instant market site, including the instant market site, was the land of one parcel, which was located in the area where the land was located in Sungnam City ( Address 3 omitted) with the parcel number of 3,316.4 square meters in Sungnam-si ( Address 3 omitted) on August 22, 1976.

(D) As the Plaintiff denied the above sales contract at Sungnam-si, the Plaintiff filed a lawsuit on the ground that the registration of ownership transfer in the name of Seoul Metropolitan Government and the registration of ownership transfer in the name of Sungnam-si on the fourth 415 of the instant market site are also null and void, and that the implementation of the procedure for the registration of cancellation of ownership transfer in the name of Sungnam-si on the fourth 3,316.4 square meters of the instant market site and that the instant market site is owned by the Plaintiff at the Seoul High Court (86Na872) on January 15, 1987, and finally confirmed that the instant market site is owned by the Plaintiff.

(E) Since December 22, 1989 in order to implement the procedure for registration of cancellation under the above final judgment, the Plaintiff requested the Defendant to make a cadastral adjustment of the instant market site several times, and applied for a cadastral survey for the division of the market site No. 415 on April 18, 1991 at the Sungnam-si Branch of the Korea Cadastral Corporation, Sungnam-si, Sungnam-si, for a cadastral survey for the division of No. 415 on the instant market site. On the same day, the Plaintiff filed an application with the Defendant for a cadastral survey for the division of No. 3,316.4 square meters (No. 3 omitted) from Sungnam-si (No. 1,03.2) by dividing the market site No. 415 on the instant land and filed an application with the Defendant for a cadastral partition by using the supervisory authority to accept the Plaintiff’s application for a cadastral partition survey.

(F) On April 25, 1991, the defendant sent a reply that the division of land according to the division of land can be processed by appending the application for division of land and the survey result, but it is impossible to conduct a cadastral survey because the building was constructed on the ground of the land required by the plaintiff, and that the application for the measurement was received and processed by the Korea Cadastral Corporation's Branch, and that the business was not performed upon the defendant's instruction or consent. On the same day, the Korea Cadastral Corporation's Branch and the Korea Cadastral Corporation's Branch and the Korea Cadastral Corporation's Branch were also unable to conduct a cadastral survey as a building

2. The judgment of the court below

On April 15, 191, the plaintiff applied for subdivision of the market site of this case between 3,316.4 square meters in Sungnam-si ( Address 3 omitted) and 415 square meters, and on the 28th of the same month, the defendant has the right to apply for subdivision of the market site of this case to the plaintiff on the 415 square meters. In addition, when the judgment ordering cancellation of the ownership transfer registration of a specific part of one parcel of land becomes final and conclusive, an application for subrogation registration of the specific part of the land shall be filed with the registry office along with the original copy of the judgment and the final and conclusive judgment, and a request for subdivision registration of the land of this case shall be filed with the registry office for cancellation of the ownership transfer registration of the land which was transcribed on the register of the land of this case, and where the plaintiff refused to apply for subdivision registration of the land of this case on the ground of the land of this case, it is reasonable to view that the above response by the defendant becomes the object of administrative litigation, and in light of the purport of the above land division law or the land owner.

3. Judgment on the grounds of appeal

On the first ground for appeal

The rejection disposition is established by the administrative agency's declaration of intention of rejection against a citizen's application for a disposition, and the subsequent declaration of intention of rejection is clearly made for the same application (see Supreme Court Decisions 81Nu37, Jul. 27, 1982; 90Nu10292, Jun. 11, 1991; 90Nu10292, Jun. 11, 199). In this case, the period allowed for administrative appeal and administrative litigation is followed based on each disposition, and the period allowed for litigation against the previous disposition has expired, so it is not impossible to bring an administrative dispute against the new rejection disposition thereafter.

According to the records, the plaintiff is recognized to have brought an administrative appeal against the defendant's rejection disposition of land division application of April 25, 1991, and then brought an action of this case. Thus, the court below is not able to find any misapprehension of the legal principles as to the period of filing an action of administrative litigation or failing to exhaust all deliberation and determination as to this point.

On the second ground for appeal

According to the reasoning of the judgment below, when the plaintiff filed an application for land division of this case with the defendant, the court below acknowledged the fact that the plaintiff requested the defendant to correct the cadastral survey essential to the application because the branch office of the Korea Cadastral Survey Corporation was rejected, and that the defendant refuses all of the request. Thus, the plaintiff's claim that the plaintiff applied for a cadastral survey only to the defendant, and that the refusal of such cadastral survey was not a disposition on the premise that the defendant rejected it, is based on the fact that the court below did not recognize it, and

In addition, the act of registering certain matters or changing registered matters in the cadastral record is intended to use them as data for convenience in the execution of administrative affairs and for certification of facts, and it is not a change in the substantive legal relationship due to the registration or change, so it cannot be viewed as a disposition subject to administrative litigation.

However, in a case where the competent authority refuses an application for land division pursuant to Article 17(1) of the Cadastral Act and Article 20(1)1 of the Enforcement Rule of the same Act, even though the owner of one parcel becomes different or a landowner needs to apply for land division, the competent authority in the cadastral record refuses such application, even though such refusal does not cause any change in the ownership of the land concerned, the number of the land shall be determined on the basis of the essential land in the cadastral record under Article 15 of the Registration of Real Estate Act and Articles 3 through 6 of the Cadastral Act, and in order to register one parcel of land by dividing it into several pieces of lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of land, each lot of land shall be registered on the cadastral record under the Cadastral Act without undergoing such procedures, and it shall not be the object of registration (see, e.g., Supreme Court Decisions 83Meu135, Mar. 27, 1984; 200Du185, Dec. 25, 1999>

Therefore, the court below's decision that found the defendant's rejection disposition of the application for land division of this case as an administrative disposition subject to appeal litigation is just, and there is no error in the misapprehension of legal principles as to administrative disposition as pointed out in the lawsuit.

The precedents cited by the theory of lawsuit are not appropriate in this case and there is no reason for the argument.

Concerning the third and fourth points

The provisions of Article 39-2 of the Building Act are limited provisions concerning the ratio, etc. of the building size of the above building site as to the horizontal waters, and do not purport not only to limit division and transfer of ownership due to legitimate cause (see Supreme Court Decision 79Da1870 delivered on January 15, 1980), Article 4 (1) of the Urban Planning Act, and the proviso of Article 5 (3) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 13684 delivered on July 1, 1992), where it is intended to divide the land into a minimum size of the site under Article 39-2 of the Building Act in an urban planning zone, it shall be permitted by the head of Si/Gun in advance. However, in the case of the division of land based on a final judgment, it shall not be limited to the minimum size of the site under Article 39-2 of the Building Act. Thus, the court below did not err by failing to examine whether the application in this case is subject to Article 39-2 of the Building Act.

In addition, the division of land refers to the act that the competent authority registers the land of one parcel which has already been registered in the cadastral record with two or more parcels of land or more (Article 2 subparagraph 13 of the Cadastral Act). Here, the division refers to the division of the boundaries on the drawings registered in the cadastral record, which also includes the rearrangement of the land cadastre, but not only is it different from the cadastral surveying procedure which is naturally preceding it, but also differs from the permission of the division of land conducted by the competent administrative agency in the urban

In comparison with the record of the judgment below, the court below recognized that the application in this case, which the plaintiff sought to the defendant, was an application for division of land in the cadastral record under Article 17 (1) of the Cadastral Act, rather than an application for a permit for partition or a cadastral survey under the Urban Planning Act, and thus, it cannot be deemed that the court below acknowledged the facts without any evidence or contradictory reasons, and it is not likely that the application for division of land is confused with the application for land division or the permission for land division

There is no reason why the court below's rejection disposition of this case is a rejection of land division permission or cadastral survey under the Urban Planning Act.

4. Conclusion

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 Yong-ju (Presiding Justice)