2012du26593 Revocation of disposition of revocation of usage inspection

Attached list of Plaintiffs is as shown in the list of Plaintiffs.

Kimpo-market

1. ExceptionalM Co., Ltd.;

2. Military Personnel Mutual Aid Association;

Seoul High Court Decision 2012Nu12558 Decided October 25, 2012

July 24, 2014

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiffs, including the part resulting from the supplementary participation.

The grounds of appeal are examined.

1. A third party, who is not the other party to an administrative disposition, is eligible to file a revocation lawsuit where the interests protected by law are infringed by the pertinent administrative disposition. The legal interests referred to in this context refer to cases where there are individual, direct, and specific interests protected by the relevant administrative disposition, and relevant laws and regulations (see Supreme Court Decision 2003Du2175, Aug. 16, 2004, etc.).

2. Article 29(3) of the former Housing Act (amended by Act No. 11061, Sept. 16, 201; hereinafter the same) provides that “If a project proprietor is unable to undergo a pre-use inspection pursuant to paragraph (1) due to bankruptcy, etc., a person who has guaranteed the construction of the relevant house or a person who has guaranteed the pre-use inspection may undergo a pre-use inspection, as prescribed by Presidential Decree.” Since the above provision is anticipated to incur damages due to a project proprietor’s failure to obtain approval due to the bankruptcy, etc., it would result in the failure of the pre-user to move into the relevant house, and thus, the pre-user also allows a pre-user to use and profit from the house constructed after undergoing a pre-use inspection pursuant to relevant statutes.

However, since a pre-use inspection disposition is limited to allowing the use and profit of a building, even if the pre-use inspection disposition has been taken place, the mere fact alone does not justify the fact that there is a defect in the building or a violation of relevant Acts and subordinate statutes, such as the Building Act, and even if the pre-use inspection disposition on the building is revoked, it merely makes it impossible to use the building again before the pre-use inspection, and it does not immediately remove or supplement the defective condition of the building (Supreme Court Decisions 93Nu20481 Decided January 14, 1994; 93Nu20481 Decided April 207).

26. The occupants or prospective occupants claim the legal relations, defects, etc. arising from the sales contract through civil litigation, etc. without cancelling the pre-use inspection disposition.

Inasmuch as a business entity, etc. may obtain remedy for the removal, supplementation, etc. of defects, the legal status of the business entity, etc. cannot be deemed to vary depending on the cancellation of the pre-use inspection disposition, and there is no different provision regarding the pre-use inspection under the former Rules on Housing Supply (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 452, Mar. 30, 2012). Rather, if a pre-use inspection disposition on housing has been issued, it is possible for prospective occupants to move into the housing and use the housing accordingly. Accordingly, it is generally beneficial to prospective occupants, and multiple legal relations are formed based on the pre-use inspection disposition, such as the sale, lease, or provision of the housing to a third party by trust of the pre-use inspection disposition in the authority for usage inspection. If some occupants or prospective occupants seek cancellation of the pre-use inspection disposition on the grounds of individual disputes arising between the business entity and the business entity, it may be contrary to the trust in the relevant disposition. Unlike the case of an application for pre-use inspection in the former Housing Act, it does not appear to separately provide for the same provision.

Therefore, in full view of these circumstances, occupants or prospective occupants under the former Housing Act have no legal interest in seeking revocation of the use inspection.

3. The court below accepted the judgment of the court of first instance, and determined that the lawsuit of this case is unlawful as brought by a person who has no standing to sue, on the ground that the plaintiffs who are in the position of the buyer regarding the apartment of this case have defects such as construction defects, etc. in the apartment of this case as alleged by the plaintiffs, on the ground that it is difficult to see that the plaintiffs have a direct and specific legal interest protected by the relevant laws and regulations, etc.

4. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination

The judgment seems to be based on the above legal principles, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on interpretation of the provisions related to the old housing statutes, such as the legal interest seeking the cancellation of administrative disposition, the legislative intent and legal interest protected by the former Housing Act, Article 29 of the former Housing Act and Article 27 of the former Rules on Housing

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the part resulting from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim Gin-young

A person shall be appointed.