[1] Whether the main text of Article 54(3) of the Building Act applies to restrictions on the use of buildings by specific use areas where a site extends over green areas, other specific use areas, etc. (negative)

[2] Standard for determining whether a building permit satisfies the restriction on the use of a building by specific-use area, and whether a building permit is unlawful retroactively in cases where a building owner uses a building for any purpose other than the permitted purpose without due process of use alteration (negative)

[3] Where it is possible to revoke a beneficial administrative disposition / In a case where the defect of the beneficial administrative disposition was caused by a party’s fact-finding or other fraudulent act, whether the party’s trust interest in the disposition should be considered (negative); and the party’s fact-finding or other fraudulent method; and the standard for determining whether the party’s application had been filed by

[1] The main text of Article 84(3) of the former National Land Planning and Utilization Act (amended by Act No. 11292, Feb. 1, 2012; hereinafter “National Land Planning Act”) seems to be aimed at minimizing damage to green areas by allowing only green areas, irrespective of the size of the part in the special-purpose area, etc. and the size of the specific-purpose area, in a case where a site extends over a green area, other special-purpose areas, etc. among the relevant site, the provisions on restrictions on activities regarding green areas are applied. In accordance with such legislative intent and text, it is reasonable to interpret the said provisions to mean that: (a) where a site extends over a green area, other special-purpose areas, etc., the provisions on restrictions on activities concerning green areas shall apply to green areas based on the boundary line of the special-purpose area, etc.

Meanwhile, the main text of Article 54(3) of the Building Act provides that “where a site extends over a green area and other areas, districts or zones, the provisions of this Act concerning buildings and their sites within each area, district or zone shall apply.” However, as regards restrictions on the use of buildings by specific-use areas, not the Building Act, are governed by the National Land Planning and Utilization Act. As such, the main text of Article 54(3) of the Building Act does not apply to the restriction on the use of buildings by specific-use areas where a site

[2] It is determined whether the permitted use of a building meets the restriction on the use of a building by specific-use area is permitted by the relevant provisions such as the National Land Planning and Utilization Act and its Enforcement Decree, the Enforcement Decree of the Building Act, the Enforcement Decree of the Urban Planning Ordinance, etc., and it is not determined by whether the owner is intent or potential to use the building last newly built for any purpose other than the permitted use, but it is not determined by whether the building owner is intended or likely to use the building for any purpose other than the permitted use, and even if the building owner uses the building for any purpose other than the permitted use

[3] A disposition agency which has conducted an administrative act may cancel it by itself, even without a separate legal basis, even if there is a defect in the act. However, when cancelling a disposition of beneficial nature, it may cancel it only when comparing and comparing the necessity of the public interest to cancel it, the right to obtain benefits and the infringement of the protection of trust and the stability of legal life, etc. to be suffered by the parties due to cancellation, and only when the necessity of the public interest is strong enough to justify the disadvantage that the parties may suffer. Furthermore, if the defect in the disposition of beneficial nature is due to the party's act of application by concealment or other fraudulent methods, it is anticipated that the party concerned has the possibility to cancel it by illegally acquiring the benefits from the disposition. Thus, it shall not be considered as well as the abuse of discretionary power even if the administrative agency does not consider it. On the other hand, whether there was an application by concealment or other fraudulent methods, the facts of the party concerned should be determined based on both the other party of the administrative agency and all relevant persons such

[1] Articles 76(1) and 84(3) of the former National Land Planning and Utilization Act (Amended by Act No. 11292, Feb. 1, 2012); Article 71(1) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 22703, Mar. 9, 201); Article 54(3) of the Building Act / [2] Article 76(1) of the former National Land Planning and Utilization Act (Amended by Act No. 11292, Feb. 1, 2012); Article 71(1) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 22703, Mar. 9, 2011) / [3] Article 1 of the Administrative Litigation Act

[3] Supreme Court Decision 95Nu11320 Decided November 7, 1995 (Gong1995Ha, 3926), Supreme Court Decision 2001Du1512 Decided November 8, 2002 (Gong2003Sang, 72), Supreme Court Decision 2003Du4669 Decided May 25, 2006 (Gong2006Ha, 1162), Supreme Court Decision 201Du1639 Decided February 15, 2013

Emart Co., Ltd. (Law Firm D.L.S., Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

SSS City Development Co., Ltd. (Attorneys Lee Jae-de et al., Counsel for the plaintiff-appellant)

The head of Gwangju Metropolitan City North Korea (Attorneys No. 504, et al., Counsel for defendant-appellant)

Gwangju High Court Decision 2012Nu682 decided July 11, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of the legal principles on the application of construction restrictions in specific-use areas

Article 76(1) of the former National Land Planning and Utilization Act (amended by Act No. 11292, Feb. 1, 2012; hereinafter “National Land Planning Act”) provides that matters concerning restrictions on the use, etc. of buildings within a specific use area shall be prescribed by Presidential Decree. Article 71(1) and [Attachment 2] [Attachment 2] through [Attachment 22] of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 22703, Mar. 9, 201; hereinafter the same shall apply) delegated by Article 71(1) and [Attachment 2] through [Attachment 22] of the former Enforcement Decree of the National Land Planning and Utilization Act and the urban planning ordinance delegated by the Enforcement Decree thereof shall apply to buildings which can be constructed within a specific use area. In addition, Article 84 of the National Land Planning and Utilization Act provides that where one site extends over two or more specific use areas, specific use areas or specific use zones (hereinafter “specific use area, etc.”) extending over a specific use area or other specific use area.

The main text of Article 84(3) of the National Land Planning and Utilization Act is to minimize damage to green areas by allowing the application of the provisions on restrictions on acts with respect to green areas only to green areas, irrespective of the size of the part in the special-purpose area, etc. among the site and the area of the special-purpose area. In light of the legislative purport and text, it is reasonable to interpret the said provision to the effect that, in cases where a site extends over green areas, other special-purpose areas, etc., the provisions on restrictions on acts with respect to green areas shall apply to green areas based on the boundary line of the special-purpose area, etc., and the provisions on restrictions on

Meanwhile, the main text of Article 54(3) of the Building Act provides that “where a site extends over a green area and other areas, districts or zones, the provisions of this Act concerning buildings and their sites within each area, district or zone shall apply.” However, as regards restrictions on the use of buildings by specific-use areas, not the Building Act, are governed by the National Land Planning and Utilization Act. As such, the main text of Article 54(3) of the Building Act does not apply to restrictions on the use of buildings by specific-use areas where a site extends over

The court below is justified in holding that the construction permit for the sales facility of this case, which is a large store in the natural green area, among the project site of this case, was not in violation of the provisions on the restriction on the use of a building by specific-use area, as it is based on the above legal principles, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on the application and interpretation of Article 84 (3) of the National Land Planning and Utilization Act and Article 54 (3) of the Building Act.

2. As to the assertion of misapprehension of the legal principles as to the use of a building which can be constructed within Class 2 general residential area

Article 76(1) of the National Land Planning and Utilization Act, Article 71(1)4 [Attachment Table 5] 1(c), 2(a) and (c) of the former Enforcement Decree of the National Land Planning and Utilization Act, subparagraph 3(a), 4(i), and 7(b) of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 22993, Jun. 29, 201; hereinafter the same shall apply) [Attachment Table 1] 3(a), 4(i), and 7(b) of the former Enforcement Decree of the Building Act, Article 39 subparag. 4 [Attachment Table 4] of the former Seoul Metropolitan City Urban Planning Ordinance (Amended by Ordinance No. 3889, Jan. 1, 201); Article 39(4) [Attachment Table 4] of the former Enforcement Decree of the National Land Planning and Utilization Act; among Class 2 residential areas of Gwangju Metropolitan City, a private teaching institute and a retail market under Article 2(3) of the Distribution Industry Development Act may not be used.

In addition, Article 2 subparag. 3 of the former Distribution Industry Development Act (amended by Act No. 11461, Jun. 1, 2012) and Article 3(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24511, Apr. 22, 2013) refer to a superstore under the Distribution Industry Development Act, which is established in one or more buildings adjacent to one or more buildings (the nearest distance between buildings is within 50 meters and an underground passage or a ground passage through which consumers can function as a single superstore).

The purpose of a building permit, which is permitted to satisfy the restriction on the use of a building by specific-use area, is determined by whether the use of the building is permitted by the National Land Planning Act, its Enforcement Decree, the Enforcement Decree of the Building Act, the urban planning municipal ordinance, etc., and it is not determined by whether the owner intends or is likely to use the building later newly built for any purpose other than the permitted purpose. It is not determined by whether the building owner intends or is likely to use the building for any purpose other than the permitted purpose without going through lawful alteration of use, but it is a problem

Therefore, if the building owner obtained the building permit for the retail store which can be constructed under the relevant provisions for the building in the Class II general residential area and for the use of a private teaching institute, the building permit is legitimate. Even if retail stores and the buildings connected to the building for the use of a private teaching institute obtained the building permit for the use of the superstore under the Distribution Industry Development Act and have the structure to open a superstore at the same time until the retail store and the part which received the building permit for the use of a private teaching institute, it cannot be deemed unlawful in light of such circumstances to permit the construction of a superstore for the use of a

Of the instant project sites, the lower court recognized the fact that the use of the building permit for the instant neighborhood living facilities in the Class II general residential area is not more than 462.30 square meters for Class I neighborhood living facilities (retail stores), Class I neighborhood living facilities (retail stores) of Class II neighborhood living facilities (retail stores), 460.60 square meters for Class II neighborhood living facilities (private teaching institutes) of the third floor, and 460.60 square meters for Class II neighborhood living facilities (private teaching institutes) of the third floor, and determined that the retail stores and private teaching institutes did not violate the restrictions on the use of buildings by specific-use areas in the building permit for the instant neighborhood living facilities

In light of the above legal principles and records, although the reasoning of the court below is somewhat insufficient, it is just to determine that the construction permit for the instant neighborhood living facilities did not violate the restriction on the use of a building by specific use area. In conclusion, contrary to what is alleged in the ground of appeal, the court below did not err by misapprehending the legal principles as to the use of a building that

3. As to the assertion of misapprehension of legal principles as to revocation ex officio of beneficial administrative disposition

A. Where there is a defect in an administrative disposition, a disposition agency which has conducted an administrative act may cancel it by itself, even without a separate legal basis. However, when cancelling a disposition of beneficial nature, it may cancel it only when compared and compared with the needs of the public interest to cancel it, the right to obtain trust and the infringement of the stability of legal life, etc. to be suffered by the parties due to such cancellation, and only when it is strong to justify the disadvantages that the public interest needs to sustain by the parties. Furthermore, if the defect in the administrative disposition of beneficial nature arises from the party's act of closure or other fraudulent means, it is anticipated that the party has a possibility to cancel the disposition's interest illegally acquired. Thus, it is not possible to invoke the trust interest in the disposition and even if an administrative agency does not consider it (see Supreme Court Decision 2011Du1639, Feb. 15, 2013; Supreme Court Decision 201Du1639, Feb. 15, 2015). Meanwhile, the party's fact should be determined based on both the other party's and the person authorized by the person concerned.

B. Based on its adopted evidence, the lower court calculated the building-to-land ratio of the sales facility of this case by setting the floor area ratio of 47.36 meters per height of the ground surface in which the sales facility of this case is adjacent to the sales facility of this case (hereinafter “non-party company”) as the ground surface when applying for the initial building permit. The lower court calculated the building-to-land ratio of the sales facility of this case by calculating the building-to-land ratio of 58.65%, building-to-land ratio of 18.6%, building-to-land ratio of 18.6%, and the building-to-land ratio of 20%, and the building-to-land ratio of 18.6%, and the building-to-land ratio of 20%, respectively, without considering the building-to-land ratio of the facility of this case to 30% and the building-to-land ratio of 18.6%, respectively, by calculating the building-to-land ratio of the facility of this case.

Furthermore, the court below held that the non-party company's application for the construction permit is unlawful in proportion to the principle of revocation of the construction permit of this case, since the non-party company's land surface formed by changing the form and quality of land is 47.36 meters, and the non-party company's land surface formed by changing the form and quality of land is 47.36 meters, and the permitting authority is not bound by the opinion of the building permit investigation and inspection report, and the design company is not actively unfavorable to the building permit of this report, but it is not a concealing or false statement of the fact that the design company is not an application by any other fraudulent method, and the non-party company's application for the construction permit of this case cannot be viewed as an application for the construction permit of this case, and the non-party company violated the principle of revocation of the construction permit of this case, which is a disadvantage to the counter-party company secured by the cancellation of the construction permit of this case.

C. However, we cannot accept the above judgment of the court below as it is.

1) Review of the reasoning of the lower judgment and the evidence adopted by the lower court reveals the following facts.

① Although the non-party company filed an application for building permit for the construction of the building in this case with the Defendant, which was rejected by the Defendant, and the favorable judgment became final and conclusive, the non-permission disposition on the non-party company’s application for building permit re-permission, and the non-party company received an indirect compulsory enforcement order from the court on November 17, 2010, and the Defendant issued the instant building permit disposition on November 30, 2010.

② During the instant construction permit process, Nonparty 1, 2, and Nonparty 3, a certified architect, who belongs to the general architect office, and a certified architect, belonging to the general architect office, were represented by Nonparty 1, and Nonparty 3, who belongs to the general architect office, on behalf of the Nonparty Company, for the preparation of design drawings and construction permission. They also

③ Although the building site in this case is relatively high in a relatively high slope, the snow of the building site in the neighborhood living facilities is relatively flat. However, the building-to-land ratio and the building-to-land ratio pursuant to the relevant construction laws and regulations under the premise that the building is constructed in accordance with the design drawing, as seen earlier, on the premise that the height of the floor above the ground surface of the sales facility consent is reasonable, and that the building is constructed in accordance with the design drawing, the building-to-land ratio and the building-to-land ratio are considerably exceeded as seen earlier. Accordingly, the designer is the ground surface at 47.36 meters, which is the sea projected height of the first floor above the ground surface above the sales facility consent, and the outer wall of the side where the sales facility is in contact with the neighborhood living facilities, on the premise that the building-to-land ratio is 47.36 meters away from the ground surface in calculating the building-to-land ratio.

④ According to the design drawings attached to the instant application for permission, the non-party company was found to have collected a space of 2 meters wide from the outer wall of sales facilities and the outer wall of neighborhood living facilities to be 52.5 meters high from the upper end of the said space. However, the designer applied the EPS method, which is the method of reducing the lower end of the construction, in consideration of soil pressure caused by such soil gathering.

⑤ As can be seen, if space between the sales facility Dong and the neighborhood living facilities is filled by soil, only the risk of cracks of building outer walls caused by earth pressure increases, and there was no need to gather soil due to the building safety, etc., the non-party company indicated earth extraction on the design drawing for the purpose of enhancing the weighted average surface of the consent to the sales facility of this case to ensure that the sales facility of this case satisfies the floor area ratio standard of natural green belt area, and calculated the floor area ratio of the sales facility of this case on this premise. In addition, the design drawing submitted by the non-party company at the time of applying for the construction permit of this case was written as 47.36 meters in height of some of the site of the sales facility site of this case, which was constructed by changing the form and quality of the sales facility of this case. However, even in the design drawing, the height of the entire site of the sales facility of this case is not the same, and at least 3 meters in height of the ground surface abutting on the operation of the sales facility of this case, without considering these difference, the non-party company calculated the building ratio of this.

(6) In this case, in relation to the creation of the ground surface which has a critical impact on the calculation of the building-to-land ratio and the floor area ratio, the non-party company did not explicitly state the contents of cutting or raising the ground surface by gathering up the space between the two Dongs and raising the ground surface, or cutting or raising the ground surface at a height of 47.36 meters, and even as a site for the construction of sales facilities, the non-party company stated that the case of applying for development acts (change of form and quality) as a site for construction of sales facilities

7) Nonparty 4, 5, and 6, who is a public official of the North-gu Seoul Metropolitan City office, who was in charge of the instant building permit, conducted the affairs of permission by reliance on the opinion of the designer about whether the calculation of the building-to-land ratio and the floor area ratio conforms to the relevant Acts and subordinate statutes, and whether it is reasonable to change the height of the ground surface through soil gathering, etc. In the process of the building permit, Nonparty 4, 5, and 6 were subject to disciplinary action for reprimand on the ground of negligence in the course of performing the affairs of permission, without finding any serious defect in violation of the Building Act.

2) Examining the above facts and the following circumstances acknowledged by the record in light of the legal principles as seen earlier, it is sufficient to view that the application for the instant building permit by the non-party company was made by concealment and other fraudulent methods despite the knowledge that the sales facilities of this case did not meet the floor area ratio and building-to-land ratio limit of the natural green area. In such a case, even if the Defendant did not consider the Plaintiff’s trust interest in the revocation of the instant building permit, it does not constitute abuse of discretionary authority.

① The provisions concerning the building-to-land ratio and floor area ratio under the construction-related Acts and subordinate statutes are designed to regulate the use relationship of the relevant land and neighboring land and ensure the appropriate use of land in consideration of the purpose and scale of the land, road conditions, etc. (see Supreme Court Decision 94Nu12180, Feb. 28, 1995). Whether the building-to-land ratio and floor area ratio are met can be the most fundamental and core matters in the application for

(2) In addition to the height of a building constructed in the calculation of the building-to-land ratio and the floor area ratio, the height of the floor of the first floor as determined by the design drawings cannot be the ground level unless the exterior wall is filled up or cut in the same height as the site in front of the construction, is a basic knowledge to the architect. In cases where there is a difference between the height of the ground level in which the exterior wall adjoins the building, the building-to-land ratio and the floor area ratio should be calculated based on the average ground level in which the exterior wall adjoins the building, as a matter of course, is also the basic content to be naturally known to

③ As seen earlier, the designer did not merely misleads the building-to-land ratio and floor area ratio by simple errors or negligence with regard to the interpretation of the relevant statutes, but rather, it appears that the maximum building area was so planned and intentional as to pursue efficiency and economic feasibility as to sales facilities for large retailer business and to create unnecessary soil removal, etc. in order to meet the building-to-land ratio, floor area ratio, etc. (in the event of soil removal, it would have an adverse effect on structural calculation by significantly affecting earth pressure on outer walls or connections, etc.). The non-party company, designer, and the Plaintiff asserted that the non-party company, the designer, and the Plaintiff continuously designed a separate building by deeming that it may conflict with the restriction on the specific use area if it were to be one of the buildings from the application for building permit to the lower court. Accordingly, even if soil removal does not relate to unnecessary misunderstanding, it seems that there is no reason to install it).

④ The ground surface height of the neighboring land abutting on the surface of a building rather than on the surface of the building, rather than on the surface of the building, constitutes a standard for calculating the building-to-land ratio. However, as alleged by the Plaintiff, if the floor height of the first floor in accordance with the design drawing is naturally the height of the ground surface according to development activities, such as the Plaintiff’s assertion, the restriction on the building-to-land ratio may be too or easily harmed, and thus, it would lose the meaning of the building-to-land ratio. The Plaintiff asserted that the 47.36m, which is based on the ground surface of the non-party company as of the sales facilities, is the height of the ground surface created by the non-party company upon obtaining permission for development activities. However, even in the application for the building permit, the minutes of the building deliberation committee, the building permit investigation and inspection report, and the building permit, it cannot be confirmed that the non-party company obtained permission by filing an explicit application for permission for development activities.

(5) A designer who acts on behalf of a building owner shall design the building in compliance with the Building Act, an order or disposition under the Building Act, and other relevant Acts and subordinate statutes, and ensure safety, function, and aesthetic view is not impeded. Designers who prepared design documents confirm whether the design was prepared in compliance with the Building Act, an order or disposition under the Building Act, and other relevant Acts and subordinate statutes (Article 23(2) and (3) of the Building Act). Meanwhile, when a building permit investigation or inspection report indicating that it is appropriate for a building permit to carry out on-site investigation, inspection, or confirmation by a person acting on behalf of the building owner, the permitting authority shall issue a building permit without delay (Article 27(2) of the Building Act and Article 21(2) of the Enforcement Rule of the same Act). Therefore, in the instant case, the designer who applied the ground surface differently from the provisions of the relevant Acts and subordinate statutes in the process of calculating the building-to-land ratio and floor area ratio, and thus, have prepared and submitted the building permit to the effect that such construction permit is not always suitable for the building permit owner’s and underground floors.

(6) A permitting authority shall make a decision on whether to grant permission by properly examining and examining the requirements for permission in accordance with the standards prescribed by the relevant Acts and subordinate statutes, without being informed of the details of the application, but it cannot be justified that the applicant intentionally attempts to avoid various regulations prescribed by the relevant Acts and subordinate statutes in an unlawful manner.

3) Nevertheless, the lower court determined that the application for the instant building permit by Nonparty Company did not constitute an application by means of concealment of facts or other fraudulent methods, and determined that the instant building permit revocation was unlawful on this premise. In so doing, the lower court erred by misapprehending the legal doctrine on the revocation ex officio of the beneficial administrative disposition, thereby adversely affecting the conclusion of the judgment.

4. As to the assertion on the disposition of return of this case

The lower court determined that it was unlawful for the Defendant to immediately return the instant building permit without requiring supplementation of the application for modification, taking into account the following: (a) the instant disposition of revocation of the building permit was unlawful; (b) the fact that the procedure for revocation of the building permit is in progress is not justifiable as a ground for rejection of the application for modification permit; and (c) the Defendant is not deemed inappropriate

However, the Plaintiff’s application for change of this case is based on the premise that the initial building permit continues to exist effectively, and as seen earlier, it cannot be concluded that the initial building permit was revoked, and that the disposition of cancellation is unlawful. Therefore, it cannot be viewed that the rejection of the application for change of this case is unlawful.

The lower court determined that the instant disposition was unlawful on the premise that the instant disposition of revocation of construction permission was unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the legality of the instant disposition of rejection, thereby adversely affecting the conclusion of the judgment.

5. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)