(영문) 창원지방법원 2020.1.16. 선고 2019구합338 판결

A. On September 27, 2018, the Plaintiff: (a) on September 27, 2018, filed an application with the Defendant for permission to engage in development activities deemed a building report and a building report (land form and quality change); and (b) filed an application for permission for diversion of farmland to newly construct a detached house of 5.21 square meters in the building area (hereinafter “instant application site”);

B. On October 29, 2018, the Defendant rendered a disposition not accepting a building report pursuant to Article 11(5) of the Building Act and Articles 56 and 58 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) against the Plaintiff on the following grounds (hereinafter “instant disposition”).

A person shall be appointed.

C. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Gyeonggi-do Administrative Appeals Commission, but was dismissed on March 28, 2019.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, Eul 1-5, 11, the whole purport of the pleading

2. Whether the disposition of this case is legitimate;

A. The plaintiff's assertion

1) Since the road name "C" is given to the land used for entry into and exit from the instant application site in accordance with the Road Name Address Act, it can be seen as a road. Therefore, the instant disposition on the ground that there is no access to the instant application site, is unlawful (i).

2) Article 44 of the Building Act does not apply to the site of this case as to the site of this case pursuant to Article 3 of the Building Act that “the site of this case shall be adjacent to a road of not less than two meters.” Furthermore, according to the Guidelines for Operation of Development Permission (Ordinance of the Ministry of Land, Infrastructure and Transport) 3-3-2-1, where a detached house of less than 1,000 square meters in the site area is constructed, the construction site does not apply to the road maintenance standard that “the site of this case should be connected to a road.” Therefore, the instant disposition on the ground that

3) Since the Defendant granted a building permit, etc. on the land that uses forest roads for a road in the Hawan-gun of Hawan-gun of Hawan-gun, the instant disposition in question is unlawful in violation of the principle of equality (Third

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The instant application is linked to a forest road of 1.5km in the direction of the Hanan-gun, Hanan-gun, Hanan-gun, Hanan-gun, the area of which was completed in around 197 (the maximum of 3-4 meters, the total length of 4.3km) at the beginning point of the E village in the Haan-gun, Haan-gun, Haan-gun, the area of which was completed, and is located far away from 1.5km in the direction of D.,

2) The instant application is not easy to walk along as well as the passage of a vehicle by using the said forest road. The instant application is capable of passing and walking along the vehicle by using the said forest road, but is in the direction of the external rash.

[Reasons for Recognition] Unsatisfy, Eul 12,13, the whole purport of the pleading

D. Determination

1) As to the argument

A) According to Article 2(1)11 of the Building Act, the term “road” is a road of at least four meters in width for pedestrian and motor vehicle traffic, which is a road or a proposed road for which a new construction or alteration is publicly notified pursuant to the National Land Planning and Utilization Act, the Road Act, the Private Road Act, or any other relevant statute, and which falls under or is scheduled to fall under a road designated and publicly notified by a Mayor/Do Governor or the head of a Si/Gun/Gu at the time of such

B) Meanwhile, the Road Name Address Act is a law enacted for the purpose of promoting the living safety and convenience of the people and contributing to the enhancement of national competitiveness, such as the reduction of distribution costs, by prescribing matters concerning road name addresses, State basic districts, State spot numbers, and State spot numbers, and the assignment, use, management, etc. of road name addresses. The road name addresses refer to the addresses indicated with road names assigned under the aforesaid Act, building numbers, and detailed addresses.

C) In full view of the above contents of the law, the mere fact that the road name address C was given in accordance with the Road Name Address Act does not constitute “road” as referred to in the Building Act, etc. (to the extent that the new construction of the road is publicly notified or that the Defendant publicly announced it, as claimed by the Plaintiff, does not exist).

2) As to the argument

A) Permission for development activities under Article 56 of the National Land Planning and Utilization Act is granted to an administrative agency to determine whether the requirements for prohibition and permission are met with indefinite concepts. Thus, whether the requirements for permission for development activities are satisfied falls under the discretionary jurisdiction of an administrative agency. Moreover, the acceptance of a building report accompanying an alteration of the form and quality of land within a specific specific specific use area as prescribed by the National Land Planning and Utilization Act is deemed to have the nature of a building report and permission for development activities under the National Land Planning and Utilization Act due to the legal fiction of authorization and permission under Articles 14(2), 11(5) and (6) of the Building Act. Thus, if a building report deemed to have obtained permission for development activities under the National Land Planning and Utilization Act fails to meet the requirements for permission for development activities under the National Land Planning and Utilization Act, the administrative agency may reject such permission for such reason (see, e.g., Supreme Court en banc Decision 201Du14954, Jan

B) The main sentence of Article 56(1) [Attachment 1-2] 2(a) [Attachment 1-2] 2(2) of the Enforcement Decree of the National Land Planning and Utilization Act provides that the construction of a building (including alteration of the form and quality of land for the purpose of construction) shall not be permitted for an area in which no road is established with respect to the construction

C) Even if Article 44 of the Building Act does not apply to the instant application site as alleged by the Plaintiff, the Defendant may determine whether the building report deemed to have obtained permission for development activities under the National Land Planning Act regardless of Article 44 of the Building Act, satisfies the criteria for permission for development activities under the National Land Planning Act and subordinate statutes. The Defendant rendered the instant disposition by deeming that the instant application site did not meet the criteria prescribed in the main sentence of Article 56(1) [Attachment 1-2] 2(a) [Attachment 2-2] of the Enforcement Decree of the National Land Planning Act, and pursuant to Article 3 of the Building Act, it does not apply to the criteria for permission under the National Land Planning Act as to road acquisition

D) In addition, the guidelines for permission for development activities were prepared to set detailed criteria for review of the criteria for permission for development activities pursuant to Article 56(4) of the Enforcement Decree of the National Land Planning Act. According to the guidelines, ① access roads are to be connected to urban/Gun planning roads, Si/Gun roads, and agricultural and fishing villages roads in principle, and, if not connected to the above roads, access roads should be opened if they are not connected to the above roads (paragraph (1)). ② Construction of existing village roads where a vehicle access is allowed, or a road where a vehicle access is connected to a farm road, farm road, etc. or a road where a vehicle passage is possible, the above guidelines may not apply to construction of agricultural, fishery, forestry facilities, Class 1 neighborhood living facilities and detached houses with a lot of less than 1,000 square meters in the site area. The plaintiff asserts that the above guidelines should be applied, but the above provisions apply to the case where a "road access road is connected to an existing village, a farming road, etc., or a road where a vehicle passage is constructed."

(3) The assertion

According to the Plaintiff’s assertion, even if the Defendant granted a building permit to another site within the jurisdiction of the same conditions as the instant application site, it would be judged differently for each individual application site to meet the criteria for the permission of development activities, and such circumstance alone does not contravene the principle of equality. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.