[1] Whether a “restriction on the use of a building”, which is the content of a district unit plan under the former National Land Planning and Utilization Act, shall be deemed to have to be selected among the types of buildings by use limited to those listed in attached Table 1 of the Enforcement Decree of the Building Act (negative)

[2] In a case where the Defendants were indicted on charges of violating the former National Land Planning and Utilization Act on the ground that the Defendants sold “divers” products from the textile product pipes of a comprehensive distribution complex where only “bandon textile-related products” can be sold in accordance with a district unit plan, the case holding that the meaning of “restriction on the use of a building”, which is the contents of a district unit plan, should not be interpreted in accordance with the Building Act, in a case where the market (market)’s designation of specific handling purposes and non-use purposes on the basis of each building within a wholesale complex site in the district unit plan, is highly likely to not exceed the scope of planned discretion

[1] The district unit plan under the former National Land Planning and Utilization Act (amended by Act No. 9313, Dec. 31, 2008; hereinafter “former National Land Planning Act”) is to rationalize land use and enhance functions for a part of the area within which urban planning is to be established, improve the aesthetic view, secure a good environment, and manage the relevant area systematically and systematically (Article 2 subparag. 5 of the former National Land Planning and Utilization Act). The purpose of the district unit plan differs from the regulation of buildings under the Building Act for the purpose of improving the safety, function, environment, and aesthetic view of buildings. The former National Land Planning and Utilization Act and the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21214, Dec. 31, 2008; hereinafter “former Enforcement Decree of the National Land Planning and Utilization Act”) provides that the restriction on the use of buildings, etc. within the specific use area according to the Enforcement Decree of the Building Act [Attachment 1], which is not subject to the formation of a broad scope of the district unit plan.

[2] In a case where Defendants were indicted for violation of the former National Land Planning and Utilization Act (amended by Act No. 9313, Dec. 31, 2008; hereinafter “former National Land Planning Act”), on the ground that the Defendants sold home appliances from the textile product pipes of a comprehensive distribution complex where only textile-related products can be sold according to the district unit planning determined and publicly notified by the Daegu Metropolitan City Mayor, the case holding that the judgment below was erroneous in the misapprehension of the legal principles as to the land unit planning of the former Act and the land unit planning of the building-related complex, which affected the establishment of trade centers, wholesale complex, logistics complex, logistics complex, and other facilities in the comprehensive distribution complex created by the Daegu Metropolitan City Ordinance, and that the construction of the above complex was delegated separately by the Daegu Metropolitan City Mayor, and that it was not erroneous in the misapprehension of the legal principles as to the land unit planning of the Building Act and the land unit planning of the building-related complex to be constructed in the aggregate distribution complex by creating a comprehensive distribution complex, and that the sale of the complex was not permitted by the Seoul Metropolitan City Mayor.

[1] Article 2 subparag. 5 and Article 76(1) of the former National Land Planning and Utilization Act (amended by Act No. 9313, Dec. 31, 2008); Article 71(1) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21214, Dec. 31, 2008); attached Table 1] of the Enforcement Decree of the Building Act / [2] Articles 54 and 141 subparag. 3 of the former National Land Planning and Utilization Act (amended by Act No. 9313, Dec. 31, 2008); Article 2(1)3 and (2) of the Building Act; Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act

Defendant 1 and one other

Prosecutor

Attorney Hong-chul et al.

Daegu District Court Decision 2009No2286 Decided October 23, 2009

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal.

Articles 52(1)4 and 54 of the former National Land Planning and Utilization Act (amended by Act No. 9313, Dec. 31, 2008; hereinafter “former National Land Planning Act”) provide that matters concerning “restriction on the use of a building” may be determined in a district unit planning in order to achieve the purpose of designating a district unit planning zone; where a building is constructed within a district unit planning zone or a building is intended to be modified, the district unit planning should be constructed in compliance with the district unit planning.

Meanwhile, Article 2 (1) 2-2 of the Building Act provides that "the term "the use of a building means the classification of buildings according to their similar structure, purpose of use and style." Article 2 (2) of the Building Act provides that the use of a building shall be 28, and the detailed use of a building belonging to each usage shall be prescribed by Presidential Decree. Accordingly, Article 3-4 and [Attachment Table 1] of the Enforcement Decree of the Building Act provides detailed types of buildings by use.

However, district unit planning is an urban management plan established to rationalize land use for a part of the area subject to urban planning, improve its function, secure a good environment, and manage the relevant area in a systematic and planned manner (Article 2 subparag. 5 of the former National Land Planning and Utilization Act), which differs from the purpose of the regulation on buildings under the Building Act for the purpose of improving the safety, function, environment, and aesthetic view of buildings; the former National Land Planning and Utilization Act and the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21214, Dec. 31, 2008; hereinafter “former Enforcement Decree of the National Land Planning and Utilization Act”) provides that the restriction on the use, etc. of buildings within a specific use area shall be governed by the classification of buildings by use as provided in [Attachment 1] of the Enforcement Decree of the Building Act (Article 76(1) of the former National Land Planning and Utilization Act; Article 71(1) of the former Enforcement Decree of the National Land Planning and Utilization Act); and that it is relatively broad to form and determine the scope of a district unit plan.

According to the records, the Daegu Metropolitan City enacted the Daegu Metropolitan City Ordinance on the Construction and Sale of Integrated Distribution Complex, to create trade centers, wholesale complexes, logistics complexes, and other facilities in a comprehensive distribution complex created in the north-gu, Daegu Metropolitan City's Seoul Metropolitan City and the Woo-dong. It can be known that specific matters such as the type of business to attract the above complex, the type of occupation of occupation, the type of occupation of occupation, and the restriction on the area of the area are delegated to be separately determined by the Daegu Metropolitan City Mayor. The Daegu Metropolitan City Mayor seems to have sold the site of the wholesale complex by restricting the types of occupation of each facility of the textile product pipes, general clothing, industrial materials pipes, electronic shopping pipes, electrical materials and electrical pipes, and non-ferrous metal pipes to be built on the ground while selling the site of the wholesale complex.

In the same way, it is highly likely that the Daegu Metropolitan City Mayor's designation of the purpose of encouragement and non-permission on the basis of the specific items in relation to the purpose of each building within the wholesale complex site in the Class-I district unit planning (hereinafter "the public notice of this case") as determined and publicly announced by the Daegu Metropolitan City's Notification No. 2006-130 of Jun. 20, 2006 as to the purpose of each building within the wholesale complex site is reflected in the contents of the Class-I district unit planning, and it is highly likely that the Daegu Metropolitan City Mayor's formulation and determination of the scope of planned discretion does not go beyond the scope of planned discretion.

Nevertheless, the court below held that the restriction on the use of buildings in the wholesale complex in the notice of this case should be interpreted in accordance with the Building Act and the Enforcement Decree of the Building Act without examining the contents of the sales contract for the site of the wholesale complex, the regulation on the restriction on the type of business after the completion of the buildings in the wholesale complex, and the developments leading up to the restriction on the use of each building by the public notice of this case by the Daegu Metropolitan City Mayor, etc.

The ground of appeal pointing this out is with merit.

Therefore, 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 Yang Chang-soo (Presiding Justice)