Central Eppvis Co., Ltd. (Law Firm Square, Attorneys Kim-jin et al., Counsel for the defendant-appellant)

Government Market (Law Firm Aara et al., Counsel for the plaintiff-appellant)

March 11, 2014

1. The Defendant’s rejection disposition against the Plaintiff on July 25, 2013 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. Reasons for the defendant's building permit

1) On March 30, 2012, the Plaintiff entered into a real estate sales contract (hereinafter referred to as “instant contract”) to sell the land ( Address omitted) and the building on the land owned by the Plaintiff to the Government-si (hereinafter referred to as “the instant land”) and its ground (hereinafter referred to as “the instant land”) in order to sell the land (hereinafter referred to as “the instant land”), and received KRW 500 million down payment from the development of the old Myun Industry on the same day.

In the case of a purchaser’s cancellation of the contract at KRW 5 billion (payment on August 30, 2012) which is included in the main text: 5.5 billion won payment procedure: The seller may immediately cancel the contract with written notice to the purchaser when the purchaser fails to pay the balance in full or perform all the obligations under this contract, or when the purchaser fails to pay the balance in full or perform all the obligations under this contract within 15 days from the date of the claim. The seller agrees to provide the buyer with the land use for the purpose of permission, which is the buyer’s business, at the request of the buyer, and even if the written consent to the land use is issued, if the contract is terminated or invalidated, the written consent to the land use is also automatically void.

2) On July 24, 2012, the former and the former and the former and the development of the industry filed an application with the Defendant for a construction permit to newly construct a collective housing on the land outside of the instant land by attaching the Plaintiff’s written consent to land use.

3) After October 2, 2012, the Defendant added the Mugunghwa Trust Co., Ltd. to the owner of the building on October 2, 2012, which changed the user into two (2) persons (the old Myun Industrial Development and the Maternal Industrial Development and the Maternal Trust), instead of one (1) person (the old Myun Industrial Development and the Maternal Trust) on the consent of the use of the existing land.

4) On October 10, 2012, the old Myun Industrial Development and the Maternal Trust made the user of the instant land from the Plaintiff to “former Myun Industrial Development and the Maternal Trust” (hereinafter referred to as the “Written Consent to Use of the instant land”). On the lower end of the written Consent, the above written Consent to Use of the instant land was based on the instant sales contract, so it becomes null and void due to the reversal of the said sales contract, and the user (former Myun Industrial Development and the Maternal Trust) is not entitled to assert the right to use the instant land for any reason.”

5) On October 15, 2012, the old Myun Industrial Development and the Rose of Sharon trust submitted to the Defendant a written consent to the use of the instant case and received a construction permit from the Defendant on the said application (hereinafter “instant building permit”).

(b) Non-performance of the obligation to pay the balance of the old Myun Industrial Development and the Plaintiff’s right of rescission

1) On August 29, 2012, the former Myun Industrial Development: (a) requested the Plaintiff to extend the due date for the remainder payment of the instant sales contract; (b) was extended on September 28, 2012; (c) and (d) was extended five times in total on November 30, 2012; and (d) was extended on December 31, 2012 on December 31, 2012; and (e) was extended on December 31, 2012 as follows (hereinafter “instant agreement”). The remaining payment date was extended on January 31, 2013.

A. Table 1. The due date for the payment of the remainder (5 billion won) under the instant sales contract is changed on January 31, 2013. 2. A. the buyer fails to complete the remainder (including interest in delay) by the due date for the payment of the remainder as stipulated in this Agreement, or the seller fails to perform all obligations under the instant sales contract, the seller may cancel the instant sales contract without any separate due date. 3. A. In the event the instant sales contract is terminated pursuant to Article 2, the buyer’s consent for the use of the instant case issued by the seller shall lose its validity immediately and the buyer shall waive and withdraw the instant construction permit. For this purpose, the buyer shall deliver the following documents necessary for the withdrawal of the construction permit at the same time as this Agreement is made: (a) the buyer and the unified trust will waive and withdraw the said construction permit; and (b) the buyer shall delegate to the seller any authority to submit an application for the construction permit and the certificate of the establishment of a trust in the name of the owner and the seller to the seller; and (c) the buyer shall not delegate.

2) On January 31, 2013, the Plaintiff sent a certificate of content that contains a declaration of intent to cancel the instant sales contract, pursuant to Article 2(a) of the instant agreement, and the content certification reached the development of the old Myun Industrial on February 4, 2013.

C. The plaintiff's application for the withdrawal of the construction permit of this case and the defendant's rejection disposition

1) On July 24, 2013, the Plaintiff filed an application with the Defendant for the withdrawal of the instant building permit on the ground that “the instant building permit based on the validity of the instant written consent of use would no longer need to continue to exist.”

2) On July 25, 2013, the Defendant rejected the application for withdrawal on the ground that “the revocation of a building permit may be revoked if the building owner’s application or Article 11(7) of the Building Act applies to the owner, but the decision by consultation or lawsuit among interested parties is required first (hereinafter “instant rejection disposition”).”

3) The old Myun Industrial Development and the Rose of Sharon trust have not started construction work according to the construction permit of this case until now.

[Ground for Recognition: Facts without dispute, entry of Gap evidence Nos. 1 through 13, 17, and 18 (including each number), the purport of the whole pleadings]

2. Whether the rejection disposition of this case is legitimate

A. The parties' assertion

1) Plaintiff

A) Although whether to withdraw a building permit should be determined by “whether there are grounds for not maintaining the effect of administrative action after the building permit,” the Defendant’s rejection disposition that rejected the Plaintiff’s application for withdrawal of the building permit to the effect that there is no illegality at the time of the instant building permit is unlawful.

B) The instant building permit had significant changes in circumstances that do not need to continue to exist any longer due to the invalidation of the written consent to use of the instant case, and the Defendant refused the instant building permit even though the Defendant should withdraw the instant building permit in accordance with the legal principles as to the withdrawal of administrative acts. Thus, the instant rejection disposition is unlawful.

2) Defendant

A building permit may be revoked if there are grounds provided for in Article 11(7) of the former Building Act (amended by Act No. 1246, Jan. 14, 2014; hereinafter the same). However, the circumstance that the instant sales contract was revoked does not fall under the above grounds, and thus, the instant rejection disposition rejecting the Plaintiff’s application for withdrawal of the building permit is lawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Although there was no particular defect at the time of the disposition, and there was no separate legal ground for the withdrawal of the disposition after the disposition, a disposition agency which has conducted an administrative act may withdraw it by a separate administrative act which makes the disposition null and void (see Supreme Court Decision 2003Du7606, Jul. 22, 2004; 2003Du7606, Nov. 26, 2004; 2003Du10251, Nov. 26, 2004, etc.). However, where the disposition agency revokes or withdraws the administrative disposition, it would infringe on the vested rights of the people already granted. Thus, the exercise of the right of revocation, etc. shall be determined by comparing it with the disadvantage suffered by the other party only when there is a need for important public interest or for protecting the interests of a third party to justify the infringement of the vested rights (see, e.g., Supreme Court Decision 2003Du10251, Nov.

2) Lapse of the written consent to use of this case

Article 9(1) of the Enforcement Decree of the Building Act provides that "any person who intends to obtain a building permit shall submit an application for a building permission to the competent permitting authority along with relevant documents, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport." Accordingly, Article 6(1)1-2 of the Enforcement Rule of the Building Act provides that "documents certifying the ownership or right to use the site to be constructed," which must be attached to the person who intends to obtain the building permit, shall be "documents certifying the ownership or right to use the site to be constructed," and where a building is constructed on the ground without securing the ownership or right to use the site, the owner's right to use is infringed, and the dispute is caused by the infringement of the owner's right to use, and the infringement of social and economic losses will occur in the future. Thus, the existence of ownership or right to use the building site to be constructed is an essential requirement to be considered at the time of the building permit by an administrative agency. If the authorized person loses the ownership or right to use

In the instant case, according to the facts of the recognition of the foregoing facts, the former Myun Industrial Development failed to perform the obligation to pay the balance even before January 31, 2013, even though it had been extended five times or more for the remaining payment date of the instant sales contract. As such, the Plaintiff may rescind the instant sales contract without a separate peremptory notice pursuant to the instant agreement, and on this ground, the Plaintiff expressed his intention that the instant sales contract was cancelled on February 4, 2013. Accordingly, the instant sales contract was lawfully rescinded on or around February 4, 2013, and the instant written consent to use was also invalidated as prescribed by the instant agreement. Accordingly, the instant construction permit became null and void.

3) Defendant’s duty to exercise the right to withdraw the instant building permit

The following circumstances revealed by the above facts: (a) the Plaintiff is not able to actually use, use, and dispose of the land of this case due to the continued existence of the building permit of this case; (b) the old Myun Industrial Development of the YY and the Myunamina Trust was unable to acquire the ownership or use right of the land of this case as the contract of this case was cancelled; and (c) the old Myun Industrial Development of this case did not commence construction according to the construction permit of this case until now; and (d) the old Myun Industrial Development failed to implement the construction permit of this case five times or more; and (e) the Plaintiff agreed to waive and withdraw the construction permit of this case when the contract of this case is terminated due to the extension of the remaining payment date of the construction permit of this case; and (e) there is no benefit in protecting the old Myun Industrial Development of this case and the old Myunamina Trust. Accordingly, the Defendant refused the construction permit of this case at the Plaintiff’s request.

On October 15, 2013, the Defendant submitted an application for extension of the construction permit of this case on the ground that the former Myun Industrial Development and the Myun (UG) filed the application, and the Defendant received the application as long as there are justifiable grounds stipulated in the proviso of Article 11(7) of the former Building Act. Thus, the Defendant, as of October 23, 2013, extended the scheduled date of commencement of the construction permit of this case to April 30, 2014. Thus, the Defendant’s claim that the construction permit of this case should be maintained until the scheduled date of commencement. However, in an appeal seeking cancellation of the administrative disposition, the illegality of the disposition should be determined at the time of disposition (see Supreme Court Decision 2004Du10883, Apr. 15, 2005). Thus, it cannot be viewed as the ground for determining the legality of the disposition of this case since the extended period was a new circumstance after the rejection disposition of this case, and the Defendant’s allegation that the Plaintiff did not have any justifiable reasons for the right to use permit of this case.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

[Attachment Omission of Related Acts]

Judge Jeong-soo(Presiding Judge)