Kim Jong-Gyeong (Attorney Kim Jong-sung et al., Counsel for the defendant-appellant)

Head of Jeonju-si (Attorney Jeon Jong-ho, Counsel for the plaintiff-appellant)

April 1, 2004

Jeonju District Court Decision 2003Guhap459 Delivered on November 20, 2003

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of denying the alteration of the use of the building against the plaintiff on August 19, 2002 is revoked.

3. The total costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances and facts of the disposition;

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry in Gap evidence Nos. 1, 2, and Eul evidence Nos. 1, 6 through 8:

A. On May 4, 2002, the Plaintiff: (a) purchased a total of 401.68 square meters from independent infant and child care facilities located in the Hoblue apartment complex (hereinafter “instant housing complex”); (b) on May 21, 2002, 200, the Plaintiff received a certificate of completion of report from the Defendant as to the remainder other than 123.26 square meters (hereinafter “instant key part”) of the said building, from the Defendant, on the 27th of the same month, as to the Defendant’s change of the use of the said building from the infant and child care facilities to the neighborhood living facilities.

B. On August 10, 2002, the Plaintiff again reported to the Defendant on the change of the purpose of the instant key part into a neighborhood living facility (retail store) in an infant’s nursery facility. On August 19, 2002, the Defendant rendered a disposition to refuse repair on the ground that “The infant nursery facilities, the key purpose of which is the instant key part, are the installation obligation under Article 55(4) of the Regulations on Standards, etc. for Housing Construction, and it is impossible to change the purpose of use.”

C. The instant housing complex consists of 639 households. When the housing construction project plan for the instant housing complex is approved, there was no infant and child care facility within 300 meters of the passage distance from the instant housing complex, but thereafter, infant and child care facilities, such as “Haa Childcare Center” and “A child care center,” are established and operated at a place located less than 280 meters of the passage distance from the instant housing complex.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful as it is in accordance with the above disposition grounds and relevant Acts and subordinate statutes, and the plaintiff's disposition of this case is <1> since there are other infant and child care facilities within 300 meters of traffic distance in the housing complex of this case, infant and child care facilities within the housing complex of this case fall under a discretionary facility, not a mandatory installation facility. <2> The disposition of this case is unlawful on the ground that infant and child care facilities within the housing complex of this case are installed and operated in the housing complex of this case. <2> Even if infant and child care facilities established in the neighboring housing complex of this case are installed and operated in the housing complex of this case, it is difficult to expect profitability due to the failure to lose competitiveness, and therefore, the

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) According to Article 55(4) of the Regulations on Standards, etc. for Housing Construction, Article 55(4) of the said Housing Construction Standards provides that childcare facilities under the Infant Care Act with a scale of 30 or more infants who are capable of taking care of at least 500 households shall be established until the inspection on the use of the relevant house is conducted, but where childcare facilities are located within 300 meters from the relevant housing complex, there may be no exceptional case where childcare facilities are established within the distance of 300 meters from the relevant housing complex. The said provision cannot be interpreted as a provision that only applies to the time when the first housing construction project plan is approved, in light of the common facilities necessary for the well-being of the residents of multi-family housing, and it shall be interpreted that the said provision equally applies to cases where childcare facilities are newly established within

(2) According to the above facts, at the time of the plaintiff's report on the change of use on August 10, 202, the infant and child care facilities are established and operated in a place less than 280 meters away from the distance of 280 meters from the housing complex of this case at the time of the plaintiff's report on the change of use. Thus, the plaintiff's report on the change of use constitutes "welfare facilities which are not co-owned" under Article 6 (2) and attached Table 2 of the above Decree on the ground that the above change of use constitutes "when the change of use is intended to meet the standards for installation of welfare facilities within the scope that meet the standards for installation of welfare facilities under the regulations on the Standards, etc. for Housing Construction." Therefore, the plaintiff's assertion has merit without any need to review, and the defendant's assertion has no merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by accepting the plaintiff's appeal and accepting the plaintiff's claim.

Judges Park Jong-chul (Presiding Judge)