2010Du9334. Revocation of a disposition rejecting a report on extension of retention period of a temporary building

Plaintiff, Ltd.

Law Firm Rolus, Attorneys Lee Ho-ho et al., Counsel for the defendant-appellant

Netcheon Market

Gwangju High Court Decision 2009Nu2763 Decided April 22, 2010

September 9, 2010

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Article 20(2) of the Building Act provides that the Mayor, etc. shall file a report in order to build a temporary building for the purposes prescribed by Presidential Decree, and Article 15(5) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 21590, Jun. 30, 2009; hereinafter the same) lists a temporary building subject to reporting under each subparagraph. This is, in principle, a temporary building is not a building under the Building Act, but can be constructed without a building permit or a building report. However, the purport of regulating a certain temporary building as subject to reporting is that it is necessary to control risks corresponding to a building.

Meanwhile, Article 15(7) and (10) of the Enforcement Decree of the Building Act, and Article 13(5) and (6) of the Enforcement Rule of the Building Act provide that a project owner who intends to extend the retention period of a temporary building whose retention period expires in a report on a temporary building shall submit a report on extension of retention period to the Mayor, etc., and that the Mayor, etc. shall issue a report completion certificate after confirming the details thereof. Thus, there is no special restriction on extension of retention period. However, even if the extension of retention period of a temporary building reported is permitted without any particular restriction, it is obvious in light of the purport of the report system on a temporary building, where the temporary building whose retention period expires

Therefore, if the retention period of a temporary building whose retention period expires is deemed to be not used for the original reported purpose, it is reasonable to view that the head of the Si, etc. may not accept the report on extension of retention period.

2. According to the reasoning of the judgment below and the records, the plaintiff, who runs the business of manufacturing composts by recycling food wastes, reported the purpose of the temporary building of this case as "short-scale plastic bags (bridges) for a simple stable," and the defendant accepted it by fixing the retention period on September 12, 2005 as three years (from September 12, 2005 to September 11, 2008). The plaintiff was also manufacturing the composts from the temporary building of this case by using the ridges, but even until September 2006, the plaintiff discontinued the manufacture of composts by using the ridges from the above temporary crossings, and the plaintiff only suspended the manufacture of composts by using the ridges and operated the general composts.

11. The fact that the report on extension of the retention period of the temporary building of this case was accepted on December 31, 2008 (it shall be until December 31, 2008). The plaintiff again filed a report on extension of retention period of the temporary building of this case on December 29, 2008 (it shall be until December 31, 2010) but the defendant extended the retention period of the temporary building of this case on January 22, 2009.

Therefore, the lower court determined that the instant return disposition was unlawful on the ground that the administrative agency could not refuse to accept the report on extension of the retention period of a temporary building on the ground that it is not deemed necessary for significant public interest. However, the lower court determined that the instant return disposition was unlawful on the ground that there was no relevant provision on the extension of retention period and the frequency and purpose of the extension of retention period of the instant temporary building, and it cannot be a ground for refusal

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, the plaintiff can be seen that the temporary building of this case is used as a place of work for general compost manufacturing using food waste as well as a bridge breeding house, if its retention period is extended. Thus, if the retention period is extended, it shall be deemed that the temporary building of this case is not used as a "a plastic greenhouse for simple stable (bridge breeding house)" which is the purpose of the original report and acceptance when it is not used for the original report and acceptance, so in light of the legal principles as seen earlier, the defendant may refuse to accept the report of extension of retention period.

Ultimately, the report of extension of the retention period of the temporary building of this case, regardless of its use, should be accepted.

In so determining, the court below erred by misapprehending the legal principles on acceptance of reports on extension of the retention period of a temporary building, which affected the conclusion of the judgment. The ground for appeal, including the purport of pointing this out, is with

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung

Justices Yang Sung-tae

Justices Lee Jae-chul

Jeju High Court Justice Yang Chang-soo