In a case where Article 54 of the National Land Planning and Utilization Act is violated in the alteration of purpose of use permitted or reported by the competent administrative agency pursuant to Article 19(2) of the Building Act, whether a corrective order and a disposition imposing a non-performance penalty may be issued (affirmative); and whether a corrective order and a disposition imposing a non-performance penalty may be issued on the ground that the alteration of purpose of use is “in breach of a district unit plan under the National Land Planning and Utilization Act,” and whether a corrective order and a disposition imposing a non-performance penalty may be imposed on the ground that the alteration of purpose of use is “in breach of a district unit plan under

In full view of the contents, structure, and purport of Article 19(2), (3), (4), and (7), Article 79(1), and Article 80(1) of the Building Act, Article 14(4) of the Enforcement Decree of the Building Act, and Article 54 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), in cases where the purpose of use is to be permitted or reported by the competent administrative agency pursuant to Article 19(7) of the National Land Planning and Utilization Act, namely, where the purpose of use is to be changed pursuant to Article 54 of the National Land Planning and Utilization Act, Article 19(2) of the Building Act, the act of violating Article 54 of the National Land Planning and Utilization Act is a violation of Article 19(7) of the Building Act, and thus, a corrective order and a charge for compelling compliance based on Articles 79 and 80 of the Building Act may not be applied mutatis mutandis to the act of violating Article 54 of the National Land Planning and Utilization Act and a disposition of imposition based on change of purpose of use.

Articles 19(2), (3), (4), and (7), 79(1), and 80(1) of the Building Act; Article 14(4) of the Enforcement Decree of the Building Act; Article 54 of the National Land Planning and Utilization Act

Supreme Court Decision 2012Du1327 Decided July 23, 2015

Plaintiff (Law Firm Jin Law, Attorneys Seo-Gyeong et al., Counsel for the plaintiff-appellant)

Head of Incheon Metropolitan Government Free Economic Zone

Seoul High Court Decision 2016Nu67440 decided April 4, 2017

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. We examine the meaning of change of use subject to enforcement fines under the Building Act.

(1) According to Article 79(1) and the main text of Article 80(1) of the Building Act, where a site or a building violates this Act or an order or disposition issued under this Act, the permitting authority may order the owner of the building to take necessary measures, such as an order to suspend the construction of the building (hereinafter “order for corrective measures”), and if the building fails to comply with the order for corrective measures within the corrective period, the permitting authority shall again impose a charge for compelling the performance

(2) According to Article 19(2), (3), and (4) of the Building Act and Article 14(4) of the Enforcement Decree of the Building Act, a building is classified as nine facility group (facility group) for each purpose of use (Article 19(4) of the Act; hereinafter “facility classification provision”), and a person who intends to change the purpose of use of a building for which approval for use has been obtained shall undergo the following procedures according to the intended change.

First, when changing the use of a building belonging to the lower group of facility group into the use corresponding to the upper group, the permission of the competent administrative agency shall be obtained (Article 19 (2) 1 of the Act).

Second, when changing the use of a building belonging to the upper group of facility group into the use corresponding to the lower group, it should be reported to the competent administrative agency (Article 19 (2) 2 of the Act).

Third, when intending to change the use within the same facility group among the facility group provisions, the competent administrative agency shall apply for the change of the content of the building ledger (the main sentence of Article 19 (3) of the Act).

Fourth, the group of facilities is the same group of the group of facilities provisions, and at the same time, the use of buildings belonging to the same subparagraph of the Enforcement Decree of the Building Act can be arbitrarily changed without going through any procedure (proviso of Article 19(3) of the Act and Article 14(4)1 of the Enforcement Decree of the Building Act).

(3) According to Article 19(7) of the Building Act, Article 54 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) shall apply mutatis mutandis to “the alteration of use of a building under paragraph (2).” According to the main sentence of Article 54 of the National Land Planning and Utilization Act, to construct a building, alter its use, or install a structure in a district-unit planning zone, a district-unit plan should be followed.

(4) Comprehensively taking account of the contents, structure, and purport of the aforementioned provisions of the National Land Planning and Utilization Act, a change of use to which Article 54 of the National Land Planning and Utilization Act applies mutatis mutandis pursuant to Article 19(7) of the Building Act, namely, where a change of use is to be permitted or reported by the competent administrative agency pursuant to Article 19(2) of the Building Act, an act violating Article 54 of the National Land Planning and Utilization Act is a violation of Article 19(7) of the Building Act, and thus, a corrective order and a disposition imposing a non-performance penalty pursuant to Article 79 or 80 of the Building Act may be issued (see Supreme Court Decision 2012Du1327, Jul. 23, 2015). However, a change of use to which Article 54 of the National Land Planning and Utilization Act does not apply mutatis mutandis, namely, where an application for change of the contents of a building register is filed or a change of use can be made arbitrarily pursuant to Article 19(3) of the Building Act cannot be deemed a district-unit plan.

B. According to the reasoning of the first instance judgment partially accepted by the lower court, the following facts are revealed.

(1) On December 30, 201, the Plaintiff leased the first floor of the instant building with a total floor area of 451.34 square meters to a lessee who operates a Class II neighborhood living facility (general restaurant) around July 2012 and used it as a motor vehicle business office.

(2) The Defendant issued the instant disposition imposing enforcement fines pursuant to Articles 79 and 80 of the Building Act, on September 4, 2015, on the ground that “the instant building under a district unit plan belongs to the site of a detached house, including general restaurants for the permitted purpose, but not including the automobile business office,” on the Plaintiff’s above alteration of use through a corrective order.

(3) Meanwhile, according to the Enforcement Decree of the Building Act [Attachment 1], “general restaurants” and “the total floor area used for the same building as a motor vehicle business office is less than 1,000 square meters,” both belong to subparagraph 4 (Class 2 neighborhood living facilities).

C. Examining these facts in light of the aforementioned legal principles, the act of changing the part of the first floor of the instant building that the Plaintiff obtained approval for use into the “motor vehicle business office with a total floor area of less than 1,00 square meters” from the “general restaurant” purpose is a facility group (7. Gun living facilities group) under the Building Act, and at the same time, a mutual change of use between the buildings belonging to the same subparagraph (4. 2. 5. Gun living facilities group) under the same subparagraph (7) of the Enforcement Decree of the Building Act. Thus, the act of changing into the use between the buildings belonging to the same subparagraph (7. 7. Gun living facilities group) of the attached Table 1 of the Enforcement Decree of the Building Act may be done at will without the permission of the competent office, a report, or a change in the building ledger.

Therefore, the change of the use of the first floor of the instant building is not subject to corrective orders based on Articles 79 and 80 of the Building Act and imposition of non-performance penalty.

Nevertheless, the lower court determined that the instant disposition imposing enforcement fines under the Building Act was lawful on the premise that a change in the purpose of use in violation of a district unit plan under the National Land Planning and Utilization Act was a violation of the Building Act. In so doing, the lower court erred by misapprehending the legal doctrine on the change in use

2. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)