The meaning of "road" under Article 34 of the former Building Act, which provides for the restriction on construction in the road;

A road referred to in Article 34 of the former Building Act, which provides for the restriction on construction within a road, shall mean a road defined in subparagraph 11 of Article 2 of the same Act, and in cases of a road with a width of at least four meters for pedestrian and motor vehicle traffic, or in cases of a road with a structure and width prescribed by Presidential Decree and where passage of motor vehicle is impossible or impossible under topographical conditions, it shall be a road with a structure and width prescribed by Presidential Decree and publicly notified as a road

Articles 34 and 80 subparag. 4 of the former Building Act (amended by Act No. 5895 of Feb. 8, 199)

Supreme Court Decision 94Nu11552 delivered on March 14, 1995 (Gong1995Sang, 1638) Supreme Court Decision 95Nu5035 delivered on September 5, 1995 (Gong1995Ha, 3424) Supreme Court Decision 98Du12802 delivered on February 9, 199 (Gong199Sang, 491)

Defendant

Defendant

Suwon District Court Decision 98No1471 delivered on January 28, 1999

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. The court below affirmed the judgment of the court of first instance which found the defendant guilty of violating Article 50 of the former Building Act (amended by Act No. 5895 of Feb. 8, 1999, hereinafter the same shall apply) by constructing about 1.5 meters of the outer wall of the North Korea without maintaining a prescribed distance from the boundary line of an adjacent site in the construction of housing as indicated in the judgment of June 12, 1995, and it is proper that the court below affirmed the judgment of the court of first instance which found the defendant guilty of violating Article 50 of the former Building Act (amended by Act No. 5895 of Feb. 8,

2. However, it is difficult to accept the lower court’s finding the Defendant guilty of violating Article 34 of the former Building Act by protruding about about 6.8m of the front outer wall in the construction of the above house on the road with approximately one meter.

The court below determined that the land protruding on the road is a road under the Building Act, since the solar market is designated as a road at the time of organizing a nearby unauthorized building pursuant to the Act on Special Measures for Arrangement of Specific Buildings (amended by Act No. 3719 of Dec. 31, 1983, invalidation June 30, 1985), the land protruding on the road shall be deemed to mean a road under the Building Act as defined in Article 34 of the former Building Act, which provides for the restriction on construction in the road, if the road under Article 2 subparagraph 11 of the same Act refers to a road with a width of at least four meters in width possible for walking and motor vehicle traffic, or if it is impossible or impossible for motor vehicle traffic to be made under topographical conditions, it shall be a road with the structure and width prescribed by the Presidential Decree, and shall be designated by the head of the Si/Gun, etc. as a road.

However, in this case, the land where the west outer wall of the above house is located is merely 1.2m from the passage of the neighboring residents, and its width is merely 1.2m, and it does not exceed 2m with the minimum width of a dead-end road less than 10m in length as stipulated in Article 3 (4) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 14891 of Dec. 30, 1995), and there is no other material to deem that the above passage was designated as a road, or that the above passage was designated as a road (the two markets were designated as an unauthorized house constructed on the neighboring site adjacent to the above passage on May 31, 1985). Although the certificate of completion inspection was issued, it cannot be presumed that the designation of a road was made on the road adjacent to the building site only on the basis of the fact that there was a certificate of completion inspection.

Therefore, although the above passage cannot be seen as a road under Article 34 of the former Building Act, the court below maintained the judgment of the court of first instance which found the defendant guilty of the above facts charged. This part of the judgment of the court below is erroneous by misapprehending the facts contrary to the rules of evidence or by misapprehending the legal principles as to roads under the Building Act, which affected the conclusion of the judgment. Therefore, the ground of appeal

3. Therefore, the judgment of the court below regarding each of the crimes of this case which sentenced a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act shall be reversed, and the case shall be remanded to the court below as per Disposition.

Justices Park Jong-chul (Presiding Justice)