Busan Development Co., Ltd. (Law Firm C&S, Attorneys Oh Jeong-hwan et al., Counsel for the plaintiff-appellant)

Vindication-gun (Law Firm Seohae, Attorneys Yellow-hwan et al., Counsel for the plaintiff-appellant)

April 29, 2004

1. The defendant's rejection disposition against the plaintiff on June 24, 2003 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On April 10, 2001, the Plaintiff obtained a business plan from the Mayor of Incheon Metropolitan City to newly construct a tourist accommodation business by bringing a four-story underground floor, six-story ground floor, a total floor area of 18,202.86 square meters, a number of guest rooms 308 condominium buildings (hereinafter “the instant building”) into a project cost of 18 billion won (hereinafter “the instant business plan”).

B. The plaintiff applied for a building permit to the defendant on June 23, 2003 in accordance with the above business plan. Accordingly, the defendant issued a disposition rejecting the building permit against the plaintiff on June 24, 2003 on the ground that the above business site was designated as a management area after the National Land Planning and Utilization Act (established by Act No. 6655 of Feb. 4, 2002 and enforced January 1, 2003; hereinafter the same shall apply) enters into force, Article 18 (3) of the Addenda of the Act, Article 13 (1) [Attachment 27] of the Addenda of the Enforcement Decree, and Article 13 (1) [Attachment 27] 2 (i) of the Addenda of the Enforcement Decree, on June 24, 2003.

[Ground of recognition] Unsatisfy, Gap evidence 6, 10, 11

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff asserts that the disposition of this case, which applied a new law unfavorable to the plaintiff, is unlawful, since the application for the approval of the project plan of this case, which was based on the construction of the building of this case was made before the enforcement date of the Act pursuant to Article 19 of the Addenda of the Act.

(2) In order to constitute “a building under application for project approval” as stipulated in Article 19 of the Addenda of the Act, the Defendant asserts that the instant disposition under application of the new Act on Limitations on Construction in the management area is lawful, since the Tourism Promotion Act related to the instant project plan did not stipulate an agenda on construction permission, and therefore, the said supplementary provision does not apply to the said building.

B. Relevant statutes

Articles 36 and 37 of the Act provide that the Minister of Construction and Transportation, etc. may designate special-purpose areas, special-purpose districts, and Articles 76 through 78 provide for restrictions on the types, uses, sizes, etc. of buildings by special-purpose districts, building-to-land ratio, floor area ratio, and floor area ratio. Article 18(3) of the Addenda of the Act provides that, after the enforcement date of the above Act, the use, type, size, etc. of buildings and other facilities in a management area and the building-to-land ratio shall be separately prescribed by the Presidential Decree in consideration of the use, type, size, etc. of the management area, the building-to-land ratio, and the activities, etc. in an agricultural and fishery area corresponding to the former Act on the Utilization and Management of the National Territory, and Article 13(1) [Attachment Table 27] subparagraph 2 (i) of the Addenda of the Enforcement Decree of the Act provides that accommodation facilities that can be constructed in a management area until the management area is subdivided shall be limited to those constructed

Meanwhile, Article 19 of the Addenda of the Act provides that the restrictions on the use, type, size, etc. of the buildings and other facilities and the building-to-land ratio and floor area ratio of the previous Act on the Utilization and Management of the National Territory, Urban Planning Act, or other Acts and subordinate statutes, which apply for a building permit, a report on the change of the purpose of use, approval, etc. shall be governed by the provisions of the former Act on the Utilization and Management of the National Territory, Urban Planning Act, or Building Act (hereinafter referred to as the

(c) Markets:

(1) First, we examine whether, among the buildings subject to the instant supplementary provisions, “a building under application for project approval under other Acts” should be the case where the pertinent Act provides a constructive provision for building permission under the relevant project approval.

In accordance with Articles 76 through 78 of the Act, the purpose of the above supplementary provision is to apply the old law favorable to the applicant in cases where the provisions on the purpose, type, size, etc. of buildings, etc. prescribed by the previous construction-related Acts and subordinate statutes, building-to-land ratio, and floor area ratio are modified, in order to protect the rights to obtain a building permit or trust to obtain a building permit under the previous construction-related Acts and subordinate statutes. The purport of the above provision also requires the person who intends to operate a certain business under other Acts and subordinate statutes to submit a business plan to the competent authority in advance and to determine whether to grant a building permit after examining the total scale, location, facilities, and equipment, supply and demand plan, etc. of the building necessary for the relevant business is reflected in the business plan in advance, so the applicant for the project approval does not have to apply the above supplementary provision to the applicant for the construction-related Acts and subordinate statutes in order to protect such trust. In light of the legislative purpose as seen above, it is not necessary to apply the above construction permit provision to the applicant for the project.

(2) We examine the legitimacy of the disposition of this case, and there is no dispute between the parties that the project site of this case was designated as a management area after the enforcement date of the Act. Considering the type and size of the building of this case, the above building constitutes a building for which construction is not permitted in accordance with Article 18(3) of the Addenda of the Act and Article 13(1) [Attachment 27] subparagraph 2(i) of the Addenda of the Enforcement Decree of the Act. However, as seen above, the plaintiff applied for a plan for a tourist accommodation business plan on or before January 1, 2003, which is the enforcement date of the Act for the purpose of constructing the building of this case and running a tourist accommodation business for the head of Incheon Metropolitan City, which is the competent authority, before January 1, 2003, for the purpose of running a tourist accommodation business, it shall be governed by the provisions of the previous building law in accordance with the Addenda of the Act (in case of refusal of construction permission by the plaintiff in accordance with the previous construction related Acts and subordinate statutes, there is no ground for refusal of construction permission for the building permit.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case is justified and it is so decided as per Disposition.

Judges Kim Young-young (Presiding Judge)