Whether restrictions under the standards under Article 39-2 (2) of the former Building Act shall be excluded in the case of land division based on a final judgment.

According to Article 4 (1) 3 of the Urban Planning Act and Article 5 (3) of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 13684 of Jul. 1, 1992), in the case of land division based on a final judgment, it shall not be subject to restrictions on the area as provided in Article 39-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991). The standard "area as provided in Article 39-2 of the Building Act" as provided in the above provision does not mean only the minimum site area as provided in paragraph (1) of the same Article, but also includes the case which falls short of the standard as provided in paragraph (2) of the same Article. Thus, in the case of land division based on a final judgment, it is possible to divide it without the permission of the head of Si/Gun even if it does not meet the standard without such limit.

Article 4 (1) 3 of the Urban Planning Act, Article 5 (3) of the Enforcement Decree of the former Urban Planning Act, Article 39-2 of the former Building Act, Article 49 of the Building Act

Seoul Electronic Distribution Co., Ltd., Counsel for the defendant-appellant

The head of Yongsan-gu Seoul Metropolitan Government

Seoul High Court Decision 92Gu13693 delivered on September 17, 1992

1. The part of the judgment below regarding the claim for revocation of revocation of land division refusal shall be reversed and remanded to the Seoul High Court.

2. The plaintiff's remaining appeal is dismissed.

3. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the claim for revocation of land division refusal

According to Article 4 (1) 3 of the Urban Planning Act and Article 5 (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13684, Jul. 1, 1992), where it is intended to divide land below the size stipulated in Article 39-2 of the Building Act in the urban planning zone, it shall be permitted by the head of Si/Gun in advance. However, in the case of the division of land based on a final judgment, it shall not be limited to the size stipulated in Article 39-2 of the Building Act. The standard "area stipulated in Article 39-2 of the Building Act" stipulated in the above Article does not mean only the minimum size of the site stipulated in paragraph (1) of the same Article, but it shall also include cases which fall short of the standard stipulated in paragraph (2) of the same Article concerning the degree of adjoining the road, building-to-land ratio, building volume ratio, height of the building, vacant land in the site. Therefore, even if it is not required to obtain the permission of the head of Si/Gun.

According to the reasoning of the judgment below, the court below recognized the fact that the divided land would go through part of the existing building, which falls short of the building-to-land ratio and the vacant land in the site area, and on the other hand, in the case of land division based on a final judgment, the purpose of Article 4 (1) 3 of the Urban Planning Act and Article 5 (3) of the Enforcement Decree of the same Act is not to exclude restrictions on the minimum site area itself as stipulated in Article 39-2 (1) of the Building Act in the case of land division based on a final judgment, but to exclude restrictions on the site, structure, and equipment of the building with independent existence in the public interest purpose, and to exclude restrictions in accordance with the other building standards stipulated in Article 39-2 (2) of the Building Act in the case of the plaintiff's application for land division. Thus, as long as the application for land division result in the result of falling short of the other standards stipulated in the Building Act such as the building-to-land ratio, it is justified for the defendant's disposition rejecting the application for land division. In light of the above legal principles, it did not err.

2. As to the claim for the execution of land division surveying

The court below is just in rejecting the plaintiff's claim for the performance of land division surveying procedure of this case for the same reasons as the plaintiff's explanation, and there is no reason to discuss this issue since it cannot be viewed as an illegal ground.

3. Therefore, since the appeal on the part of the judgment below regarding the claim for revocation of revocation of land division rejection is well-grounded, the judgment of the court below is reversed and the case is remanded to the court below. The appeal on the remaining part is without merit, and the costs of appeal on this part are assessed against the losing party. It is so decided as per Disposition by the

Justices Kim Jong-ju (Presiding Justice)