Kim-ok (Attorney Lee Dong-chul et al., Counsel for defendant-appellant)

Head of Busan Metropolitan City, Busan Metropolitan Government

September 1, 1989

The cancellation disposition against the plaintiff on November 11, 198 by the defendant on the permission of construction for the above-mentioned 9-27 and 130 above-ground buildings in Busan-dong, Busan-dong, Busan-dong.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the cancellation of building permission;

On November 10, 1987, the plaintiff filed an application for a building permit with the defendant on November 10, 1987 to build two-story houses in Busan-dong 9-27 and 130 in Busan-dong, Busan-dong, and the defendant issued a building permit as Busan-do Construction 87-575 on November 11, 1987, but on November 10, 1988, upon receipt of the plaintiff's extension of construction permit as of November 10, 198, the fact that the construction permit was revoked pursuant to Article 42 of the Building Act on the ground that the road on the design placement map as of November 11, 198 is different from the road on the present condition.

2. Issues;

The Plaintiff asserts that the revocation of a building permit according to the authenticity of several residents, even though there was no error in the design drawing at the time of filing an application for a building permit, is unlawful. The Defendant asserted that (i) the attached drawing indication A, D, and F used as the passage of residents in the present situation is also a road under the Building Act; (ii) the Plaintiff’s construction project should be built on the remainder of the building site less than the above road from the site area in accordance with the construction restriction regulations under Article 30 and Article 31 of the Building Act; (iii) the Defendant intentionally violated the illegal provisions regarding the construction restriction by omitting the above road from the design drawing at approximately 1/3 of the design building area on the above road; and (iv) the Plaintiff’s construction plan at the time of filing an application for the building permit was not only indicated with the annexed drawing No. 2, which is the remainder of the building permit, but also indicated with the annexed drawing No. 1, which is the remainder of the building permit to the lower part of the lower part of the building permit.

3. Determination of legality of a disposition revoking a building permit

Comprehensively taking account of the evidence No. 1, 2, evidence No. 1-1 through 6, evidence No. 1-2, evidence No. 3-1 through 4, evidence No. 4-1, 2, evidence No. 5-1, 2, Eul evidence No. 6, evidence No. 7-1, 2, Eul evidence No. 7-2, evidence No. 8 through 12, evidence No. 13-1, 2, 3, evidence No. 14-1, and evidence No. 14-2 on each of the statements No. 1, No. 13, evidence No. 14-1, and the results of on-site inspection of party members and all purport of oral arguments, the plaintiff was installed on the building site of this site, and the height of the building site No. 9-27 and 130 are 1,000 square meters higher than 2,000 square meters from the wall No. 1,000 through 2,000

On the building site of the plaintiff, there was a road of approximately 1.4 meters in width which combines each point of the attached drawing C, B, A, and H, which is installed from the south of the site, and the side of the building site of the plaintiff was a building site of about 0.7 meters in length that connects C, F, D, and A with the same drawing indication C, F, D, and A. At the same time, the plaintiff applied for the building permit, the plaintiff provided only the above south side of the building site as a road under the Building Act so that it does not go against the illegal act. At the same time, the plaintiff provided 6 square meters of the above side of the building site as a road under the Building Act, and the building design was made by using the building line of 1.4 meters of the building site as a building line, and some residents of the building site have left the land at his own discretion more than the original use of the road. Thus, the plaintiff's building permit is not considered as a building permit.

On April 198, 198, when the plaintiff tried to start the construction with building permit, he abandoned cement packaging by expanding the width of the above diameter by 2 meters or more from his private expenses, and thereafter, on November 1, 198, the defendant investigated the current status, and the defendant intentionally omitted the fact that the plaintiff had to display it as a road on the survey drawing as a road on the current status identical to the original road in the case of the plaintiff's application for building permit, and the fact that the building permit was revoked can be recognized and no counter-proof.

First of all, the defendant's assertion as the ground for cancellation of the above building permit is that the plaintiff installed the above retaining wall without permission of the defendant. However, it was a road problem that the defendant's revocation of the above building permit was not an unauthorized retaining wall, and the defendant's revocation of the above building permit was not an unauthorized retaining wall, and it cannot be viewed that the above revocation disposition is legitimate for the reason for revocation of the original revocation. Even if the above retaining wall is installed without permission under Article 49 of the Building Act and Article 100 subparagraph 5 of the Enforcement Decree of the Building Act, even if the above retaining wall is installed, it is necessary to obtain permission under Article 100 subparagraph 5 of the same Act, and even if it is installed without this, the defendant can not be revoked only for the violating part, and therefore, it cannot be viewed that the building permit of this case is legitimate for the reason for revocation of the building permit of this case.

The following arguments are examined as to the separation of the defendant.

Pursuant to Article 2 (15) of the Building Act, the term "road" means a road of not less than four meters in width for pedestrian and motor vehicle traffic, which is at least four meters, where a new or proposed road is publicly announced pursuant to the provisions of the Urban Planning Act, the Road Act, the Private Road Act, or other relevant Acts and subordinate statutes, and the head of a Si/Gun designates its location at the time of permission to construct a new or proposed road. In this case, it is recognized that the defendant also recognized that the above building is not a road pursuant to the Urban Planning Act, the Road Act, the Road Act, the Private Road Act, or other Acts and subordinate statutes, and if the above existing building is designated as a road by the plaintiff upon obtaining a construction permission, it is a road location under the above-mentioned provision of the Building Act, and thus, it is not necessary to obtain a restriction under the above provision of the Building Act, and if the building of the plaintiff's above building is not subject to a construction permission or a proposed road, it is not necessary to obtain a new construction permit, regardless of its size and size.

Therefore, there is no reason to be restricted by the provisions of Articles 27, 30, and 31 of the Building Act in the case of a building which is not a road under the Building Act, so the building cannot be deemed to have been in violation of the above Building Act, and the defendant's disposition to cancel the building permit cannot be deemed lawful on the ground that there is a violation of the Building Act.

The following reasons are that the defendant's disposition of this building permit imposed upon the plaintiff's knowledge that the current state of the land and the design drawing coincide with that of the plaintiff, but the plaintiff intentionally omitted part of the current state from the design drawing to mislead the defendant about the facts and made a disposition of building permit which cannot be partially designated due to such mistake. Thus, the head of the Si/Gun can cancel the building permit for this reason under the provisions of Article 42 (1) of the Building Act because the building permit can be cancelled if the building is in violation of this Act or the order or disposition under this Act, so if the building permit is cancelled, the defendant should assert the above facts of violation of the construction permit even if he did not use the above construction permit's new construction permit's new construction permit's new construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's new construction permit's construction permit's construction permit's construction permit's construction permit's new construction permit's construction permit's construction permit's construction permit's construction permit's construction permit's construction permit'.

4. Conclusion

Thus, each of the above arguments that the defendant's grounds for revoking the building permit are neither acceptable nor acceptable, and otherwise, if there is no evidence to prove the legitimate grounds for revoking the building permit permit, the defendant's revocation of the above building permit cannot be exempted from being unlawful. Therefore, the plaintiff's claim for revocation of the building permit is justified, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition.

September 29, 1989

Judges Cho Jong-soo (Presiding Judge)

[Attachment Form Omission (Design)]