Kim Yong-han

Head of Seo-gu Daejeon Metropolitan City (Attorney Kim-sik, Counsel for the defendant-appellant)

Park Ho-ho et al.

1. The instant lawsuit shall be dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s permission of March 30, 1994 and the disposition of inspection of use on the above ground structure of March 14, 1995, located on the ground of 450.9 square meters, Seo-gu, Daejeon-gu 128-7, Daejeon-dong 128.

1. Details of the instant disposition

A. On March 14, 1994, the supplementary intervenors filed an application for a building permit for the construction of neighborhood living facilities on the ground level of the first underground floor, the fifth floor area, the building area, the 1,563.52 square meters, the total floor area, the maximum height of the building at 21.8 meters, on the ground level of 128-7 to 450.9 square meters (hereinafter referred to as the “instant land”) owned by the supplementary intervenors, and the defendant filed an application for a building permit for the construction of neighborhood living facilities at a size of 21.8 meters. The defendant filed a building permit with the same content as the 30th of the same month, and issued a completion inspection certificate to the said supplementary intervenors.

B. The Plaintiff owns a detached house of 75.3 square meters on the ground of the 128-16 large 23 square meters, adjacent to the above site.

【Proof】

Eul evidence of subparagraphs 1 through 5, and the whole purport of the pleading

2. The plaintiff's assertion

According to the Building Act and related regulations, the plaintiff provided that the building height of a building shall be restricted by ensuring the right of sunshine of the owner of a neighboring site, and the defendant should not grant a building permit in spite of the above provision, although the building of this case was illegally designed by disregarding the above provision, the defendant should not grant a building permit. After that, even if the building of this case was completed, the defendant shall not conduct an inspection on the use of the building of this case and issue a completion certificate for the use of the building of this case so that the defendant assistant participant may use the building of this case. The plaintiff asserts that the construction permit of this case and the disposition on the use of the building of this case should be revoked as it is unlawful.

3. Judgment on the plaintiff's petition

A. Article 53 of the Building Act provides that the height of a building constructed within an apartment house, an exclusive residential area, or a general residential area shall not exceed the height determined by the Municipal Ordinance of the Si/Gun/Gu in accordance with the distance from the building to another building within the same site and the distance from the other building within the same site to the borderline of the neighboring site as prescribed by the Presidential Decree. Article 86(1) of the Enforcement Decree of the Building Act and Articles 9 and 1(1)3 of the Daejeon Metropolitan City Building Ordinance provide that three stories or more shall be kept at least 1/2 of the height of each part of the building from the neighboring site, and comprehensively taking into account the evidence in front, evidence in subparagraph 3 and evidence in subparagraph 1 through 5, and evidence in subparagraph 6 above, and the fact that the building in this case was designed in violation of the separation distance limitation for guaranteeing the right to enjoy sunshine under the above provision, but it can be recognized that the building in this case was completed and that the building in this case was inspected after the completion of the construction.

B. However, since a lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by removing an illegal state caused by the illegal disposition and protecting the rights and interests infringed or obstructed by the disposition, it shall be deemed that there is no benefit to seek the cancellation if the cancellation of the illegal disposition is impossible to restore the original state (see Supreme Court Decisions 91Nu1131, Apr. 24, 1992; 91Nu1131, Sept. 8, 1987; 86Nu375, etc.).

According to the above facts, even if the construction permission received by the Defendant for the Defendant against the instant building was unlawful, as alleged by the Plaintiff, because the restriction on the height of the building for securing the right to enjoy sunshine, etc. under the Building Act was made illegal, the Plaintiff, who is the owner of an adjacent site adjacent to the building site, was subject to the revocation of the above construction permission disposition, and was at the stage of correction in accordance with the restriction on the height of the building, and even in seeking the removal of the said building, it is not necessary to revoke the above construction permission disposition, and therefore, there is no legal interest to seek the revocation of the above construction permission disposition.

(3) In addition, a pre-use inspection disposition of a building is merely a legal effect that enables a person who has obtained permission to use and profit from the building constructed by confirming whether the building constructed with a building permit is suitable for the purpose of the construction administration in accordance with the building permit, and issuing a certificate of completion of use inspection. In a case where a building constructed infringes on the rights of a neighboring house owner, the pre-use inspection disposition does not justify such infringement, and even if the owner of neighboring house suffered damage to his house in the process of constructing the building, such damage can be recovered in monetary compensation. Infringement of living environment such as infringement of sunshine rights can be restored or protected by the removal of all or part of the building. Even if the pre-use inspection disposition of the building was revoked, the owner is unable to use the building lawfully and return to the pre-use inspection, and thus, the owner is determined by the reasonable judgment of the administrative agency (see Supreme Court Decision 194Nu1384, Jan. 14, 1994; Supreme Court Decision 2009Nu1384, Apr. 13, 20, 199).

3. Conclusion

Therefore, the lawsuit of this case is unlawful because there is no benefit of lawsuit, so it is decided as per Disposition.

Judges Doh-type (Presiding Judge) Kim Young-jin