(영문) 의정부지방법원 2012.7.3. 선고 2011구합4737 판결

The Defendant’s disposition of permission to engage in development activities against B1 January 31, 2011 (C and Songpa-gu Seoul Metropolitan Government D apartment 33 Dong 1304) is revoked.

Reasons

1. Details of the disposition;

A. The land in the Republic of Korea, in the attached Form No. 1, the Republic of Korea, is a place where G was developed and sold as an electric resource complex from around 2000 to G. Among them, the Plaintiff owns and resides in a house owned by the Plaintiff of H large 553 square meters (hereinafter referred to as “Plaintiff-owned land”), and adjacent thereto, B owns one thousand and sixty67 square meters prior to I, and 90 square meters prior to J, and 589 square meters prior to K (hereinafter referred to as “B-owned land”).

B. On August 20, 2006, B’s husband L2) filed with the Defendant an application for permission to engage in development activities to change the form and quality of land on the part of the land owned by B (attached Form L2) for the purpose of constructing a detached house and a separate parking zone (at the time J and the Plaintiff’s land boundary, the height of retaining wall was 4.8 meters and the height of retaining wall on the boundary line between K and N was 5 meters). On November 8, 2006, the construction permission was granted including permission to engage in development activities around November 8, 206).

C. On December 13, 2010, B filed an application with the Defendant for permission to engage in development activities for the purpose of creating a site for farmland with respect to the land of 1,656 square meters in B (hereinafter “the instant application site”) among the land owned by the Defendant (hereinafter “instant disposition”). On January 31, 2011, B filed an application with the Defendant for permission to engage in development activities for the purpose of changing the form and quality of land for the purpose of creating a site for farmland (the height of the retaining wall on the land owned by I and the Plaintiff, the height of the retaining wall on the land of 7.7 meters, the height of the retaining wall on the boundary between K and N, the highest 8 meters; hereinafter “the retaining wall”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 5, 6, 29, each of the statements in Gap evidence 1, 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case by the defendant is unlawful for the following reasons.

(1) According to Article 83 of the Building Act and Article 118(1)5 of the Enforcement Decree of the Building Act, in the case of a retaining wall with a height exceeding two meters, the Defendant did not regulate the height, etc. of the retaining wall of this case pursuant to the Building Act.

(2) According to Article 56 subparagraph 2 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the alteration of the form and quality of land for farming purposes is excluded from the permission for development activities, and the instant application constitutes a change in the form and quality of land for farming purposes with the aim of creating a site for farmland, but the Defendant applied the National Land Planning and Utilization Act to the instant disposition.

(3) The purpose of the application for permission of development of this case in B is not to actually create a site of farmland, but to create a site; the retaining wall in this case was designed not to meet the standards prescribed by the farmland laws and regulations; the retaining wall in this case was continuously engaged in illegal construction differently from the previous permission of development; the defendant continues to defend B, and even if the retaining wall in this case was installed more than the plaintiff's electric source house, it would be impossible for the plaintiff to recover; furthermore, if the retaining wall in this case is installed, it would be likely to damage the landscape of neighboring housing and North Korean river; furthermore, it would be likely to damage the landscape of neighboring housing and North Korean river; and in light of the fact that the retaining wall in this case would prevent it from being converted from the back of the river of the river of this case, which might cause damage to the plaintiff's electric house by mistake of facts or misapprehension of legal principles, etc., the defendant's disposition of this case in this case is deviating from and abused discretion due to abuse of discretion.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) As to the Plaintiff’s first argument

Article 83 (1) of the Building Act provides that a person who intends to build a retaining wall, chimney, advertising tower, high-priced water tank, underground shelter, and other similar structures prescribed by Presidential Decree shall report to the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu, as prescribed by Presidential Decree.

As acknowledged earlier, B merely stated the purpose at the time of the application for permission for development activities of this case as "Creation of a farmland site", and there is no other evidence to acknowledge that the Plaintiff applied for permission for development activities of this case by creating farmland, even though only the evidence submitted by the Plaintiff is to create a building site B, and there is no other evidence to acknowledge it otherwise. Therefore, insofar as it is not recognized to be necessary to create a building site at the time of the application for permission for development activities of this case, the above provisions of the construction laws and regulations cannot be applied in determining the legitimacy of the disposition of this case. Accordingly, the plaintiff's assertion on

(2) On the second argument of the Plaintiff

According to Article 56 (1) 2 of the National Land Planning and Utilization Act, the change of the form and quality of land for farming is excluded from the subject of permission for development activities. However, the scope of "culture" refers to crop cultivation in the farmland where the creation has been completed, and simple guest soil or suspension work for the enhancement of soil capacity of the farmland in question. Such interpretation also conforms to the legislative purpose of the National Land Planning and Utilization Act, which does not include simple cultivation activities of crops in the subject of permission for development activities

As seen earlier, the application for permission for development of the instant case is to install a retaining wall by cutting or banking the application site for the creation of farmland. As such, this falls under the change of the form and quality subject to permission for development activities as stipulated in Article 56(1)2 of the National Land Planning and Utilization Act, and it does not fall under the act for “culture” which is not subject to permission for development activities. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

(3) As to the third argument by the Plaintiff

Whether an administrative act is a discretionary act or not shall be determined by considering both the system, form and language of the law that served as the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself, etc. (see, e.g., Supreme Court Decision 2002Du820, Aug. 23, 2002). Article 58 of the National Land Planning Act, Article 56 and [Attachment 1] of the Enforcement Decree of the National Land Planning Act, etc. require an administrative agency to make a discretionary decision as to whether to permit development activities because they do not stipulate the above criteria for permission. In such a case, setting the necessary criteria also belongs to the discretion of the administrative agency, and thus, the intent of the administrative agency should be respected as far as possible, unless there are any special circumstances to deem that the criteria established are objectively unreasonable or unreasonable.

The following circumstances revealed as to the instant case: (a) the application for the instant development permit was filed only for the purpose of creating farmland, and does not seem to have been made; (b) the stairs, soil mounds, erosion embankments, and other similar facilities installed to prevent soil erosion, such as the retaining wall of this case fall under the scope of improvement facilities under Article 2 of the Enforcement Rule of the Farmland Act; (c) the criteria for guest soil, embling and cutting are stipulated in Article 4-2 of the Enforcement Rule of the Farmland Act, but there are no specific facilities and installation regulations for farmland improvement facilities; (b) the Defendant was found to have illegally installed a concrete retaining wall, which is not the retaining wall permitted on the previous land; (d) the Defendant filed a complaint with the Namyang Police Station on these land for the purpose of creating farmland; and (e) the order was installed to restore the land to its original state because it is merely a different use of materials of the retaining wall, such as the retaining wall of this case, and the order did not affect the safety of the surrounding land and the surrounding structure of the retaining wall.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Justices Kim Su-cheon, the presiding judge

Judges B.

Judges Kim Jong-Un

Note tin

(i) the name E of the opening name;

(ii) the name M prior to the opening of the name;

3) Since then, the name holder of the building permit was changed to B.

4) After the instant disposition, if B revised the plan to construct housing in the instant application site, and filed an application for the modification of the instant disposition, the Defendant may review and regulate the instant disposition in accordance with the Building Act and subordinate statutes at that time.