[1] Whether there is an exceptional “special circumstance” to be deemed to be null and void for the enforcement of the former Building Act (wholly amended by Act No. 4381, May 31, 1991)(affirmative)

[2] The case where cancellation, withdrawal, or suspension of a beneficial administrative disposition is permitted

[3] In a case where a land owner Gap filed a construction report on the land which was actually used as a road prior to the enforcement of the Building Act amended by Act No. 2852 of Dec. 31, 1975, and the administrative agency accepted the building report, and then notified the withdrawal of the construction report on the ground that the said land goes against the Building Act because it is a road under the Building Act, the case affirming the judgment below that the above land cannot be constructed as a road under the Building Act as a de facto road with a width of more than 4 meters which has already been used as a road for residents prior to the enforcement of the amended Building Act, and that the public interest request to prevent the passage of a new building is more important than the right of acquisition, trust, and protection of legal stability, and thus, the revocation of the construction report is lawful

[1] Article 2 subparagraph 15 of the former Building Act (wholly amended by Act No. 4381 of May 31, 1991) (see current Article 2 (1) 11 of the former Building Act) and Article 2 (2) of the Addenda (current deleted on December 31, 1975) / [2] Article 1 of the Administrative Litigation Act / [3] Article 2 subparagraph 15 of the former Building Act (wholly amended by Act No. 4381 of May 31, 1991) (see current Article 2 (1) 11 of the former Building Act), Article 2 (2) of the Addenda (current deleted on December 31, 1975)

Plaintiff

Kimpo-si High Village Mayor (Law Firm Lee & Lee, Attorneys Sung-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu1513 decided September 30, 201

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the allegation in the grounds of appeal on whether a road is under the Building Act

A. Article 2 subparag. 15 of the Building Act (amended by Act No. 2852 of Dec. 31, 1975) provides that the term “road” means a road with a width of at least four meters which has been publicly announced pursuant to the provisions of the Urban Planning Act, the Road Act, or other relevant Acts and subordinate statutes, or a road with a location designated by the head of a Si/Gun at the time of building permission (including the Seoul Special Metropolitan City Mayor and Busan Metropolitan City Mayor; hereinafter the same shall apply) and Article 2 subparag. 2 of the Addenda of the Building Act (hereinafter referred to as the “former Paragraph 2 of the Building Act”) provides that “the roads shall be deemed roads, notwithstanding the provisions of Article 2 subparag. 15 of the former Building Act, which are not consistent with the provisions of the Building Act, or which is wholly designated by the head of a Gun prior to the enactment of the Act, and Article 2 subparag. 15 of the former Building Act (Act No. 1942 of Mar. 30, 1967).”

In the event that the Act is wholly amended, the same as the repeal of the previous Act and the enactment of a new Act, and in principle, the main provision of the previous Act as well as the main provision of the Addenda shall be deemed null and void, so the transitional provision of the previous Act shall also be deemed null and void. However, in special circumstances, the term “special circumstance” refers not only to the case where a separate provision exists that the former Act shall continue to apply with respect to the transitional provision of the previous Act, but also to the case where there are exceptional circumstances where the former transitional provision shall continue to apply with respect to the transitional provision of the previous Act, even if there are no such provision. In this case, the determination of whether there is “special circumstance” requires individual and specific consideration of the legislative background and purport of the previous transitional provision, the legislative intent and overall system of the wholly amended Act, whether the former transitional provision becomes null and void (see Supreme Court Decision 2006Du19419, Nov. 27, 2008, etc.).

Based on the above legal principles, the provisions of the Building Act concerning roads are examined in light of the above legal principles: (a) although the Building Act was wholly amended by Act No. 4381 on May 31, 1991, which did not stipulate the transitional provisions such as Paragraph (2) of the previous Addenda, it reflects the situation where most of the roads at the time are designated as a road by the head of a Si/Gun, etc., and it is necessary to maintain the transitional provisions such as Paragraph (2) of the previous Addenda; (b) it appears that the actual road, which has already become a road under the Building Act, is not to be changed again into a road under the Building Act that is not a road under the Building Act; and (c) if paragraph (2) of the previous Addenda, it is deemed that the actual road, which has already become a road under the Building Act, has a legal gap in relation to the road, and in particular, there are problems related to the protection of trust and legal stability of the owners of neighboring land and buildings using the road as a passage, it still does not constitute a special invalidation of 2151.

B. Based on the facts found in its holding, the lower court determined that it is reasonable to view that construction on the land of this case cannot be conducted on the land of this case as a de facto road with a width of at least four meters, which had been already used as a passage of residents since February 1, 1976, which constitutes a road under the Building Act, as it constitutes a de facto road with a width of at least four meters, which had been used as a passage of residents, since before December 31, 1975, when the land of this case constitutes part of access roads to the high village office, the width

The above determination by the court below is justifiable in light of the legal principles as seen earlier. Thus, the ground of appeal that the court below erred by misapprehending the legal principles as to roads under the Building Act, which affected the conclusion of the judgment is groundless

2. As to the allegation in the grounds of appeal on the necessity of public interest

A. In a case where cancellation or withdrawal of a beneficial administrative disposition is revoked or suspended, it would infringe the vested rights of the people already granted. Thus, even if there exist grounds such as cancellation, the exercise of the right to cancel is necessary for the important public interest to justify the infringement of the vested rights, or for the protection of the interests of a third party, and when comparing and comparing it with the disadvantage that the other party receives, it is permissible only when the necessity of the public interest, etc. is strong enough to justify the disadvantage that the other party would suffer (see, e.g., Supreme Court Decisions 92Nu1723, Aug. 24, 1993; 2003Du7606, Jul. 22, 2004).

B. Upon citing the reasoning of the judgment of the court of first instance, the court below determined that the disposition of this case revoked the Plaintiff’s construction report as lawful, on the following grounds: (a) based on the following circumstances: (b) the land of this case was newly constructed on the land of this case and provided to the general public for more than a few months since the high village office was located in around 1914; (c) the Plaintiff appears to have acquired the land of this case knowing that the land of this case was actually being used as a road on January 17, 2003; and (d) the neighboring land should be closed only the door where the land of this case was built on the land of this case or the only door where the land of this case was installed on the land of this case, and a new entrance should be installed on the other side because it is deemed necessary for the public interest to prevent traffic from being obstructed by the new construction of the land of this case; and (d) the public interest request of this public interest exceeds the Plaintiff’s right to obtain, trust, and legal stability protection.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are all justified, and there is no illegality that affected the conclusion of the judgment by either finding facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles as to the limitation of discretion in the withdrawal and cancellation of the beneficial administrative disposition, as otherwise alleged in the grounds of appeal

3. Conclusion

Therefore, the appeal is dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Ahn Dai-hee (Presiding Justice)