2015Guhap24209 (new construction) Demanding revocation of a provisional disposition

Shoto Co., Ltd.

The head of Seo-gu Busan Metropolitan Government

December 4, 2015

January 15, 2016

1. On July 6, 2015, the Defendant’s provisional disposition against the Plaintiff to refuse to grant construction permission is revoked. 2. The litigation cost is borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On June 17, 2015, the Plaintiff filed an application for a building permit with the Defendant on June 17, 2015, after undergoing a construction deliberation in order to construct apartment houses and officetels with a size of 1, 15 stories underground, total floor area of 3,323.39§³ (hereinafter “instant building”) on a parcel of 4,19-10 square meters and 456 square meters (hereinafter “the instant application site”).

B. The Defendant, on July 6, 2015, did not violate the relevant statutory restrictions such as the Building Act. However, on the ground that the application for the instant building permit was located in the Seodaemun-dong Traditional Alley Market (hereinafter referred to as the “Alley market”) consisting of low story commercial buildings, and that there is a tendency to foster the Alley market, and thus, a group civil petition of neighboring residents is likely to occur, and that there is considerable concern about the use of vehicles and equipment among the construction works, and the entry of vehicles by prospective residents in the future, into the market, etc., the Defendant issued a non-permission disposition (hereinafter referred to as the “instant disposition”). The Plaintiff filed an administrative appeal with the Busan Metropolitan Government Administrative Appeals Commission on July 9, 2015, but was dismissed on August 25, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 8, Eul evidence 1 to 9, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the fact that the application for the instant building permit does not violate the relevant statutory restrictions, the instant disposition is unlawful by abusing and abusing discretion, in light of the fact that there is no violation of the relevant statutory restrictions, the payment of compensation for losses to the merchants' associations and merchants who are likely to suffer business losses due to the construction of the instant building, and the traffic impact assessment does not have significant impact on the surrounding traffic of the construction of the instant building.

B. Determination

Unless the application for a building permit is in conflict with any restriction stipulated by the relevant laws, such as the Building Act, a building permit holder shall grant a building permit under the same Act as a matter of course, and even if there is no need for significant public interest, a building permit holder may not refuse to grant permission to a person who meets the requirements for reasons other than the grounds for restriction prescribed by the relevant laws and regulations (see, e.g., Supreme Court Decisions 2009Du8946, Sept. 24, 2009; 2002Du3201, Apr. 25,

Examining the instant case in light of the aforementioned legal principles, as seen earlier, that the application for the instant building permit does not conflict with any restriction prescribed by the related Acts and subordinate statutes, such as the Building Act, and it is evident that the Defendant’s ground for the instant disposition does not constitute grounds for restriction under the related Acts and subordinate statutes, such as the Building Act. Therefore, if the Defendant’s refusal of the instant building permit is not deemed necessary for a significant public interest, the instant disposition is deemed to have been deviates from and abused discretionary authority. Accordingly, the Defendant’s rejection of the instant application constitutes a serious public interest necessity.

The aforementioned evidence reveals the following circumstances, i.e., ① the size or form of the building of this case is inappropriate for the legislative intent of the Building Act to contribute to the promotion of public welfare by improving the safety function, environment and aesthetic view of the building, and there is no circumstance to deem the use or form of the building of this case to be inappropriate for the purpose of contributing to the promotion of public welfare by adding all the arguments to the entries in Gap evidence Nos. 3 through 6 and Nos. 11 through 15 (if the building of this case is newly constructed, the building of this case will not file a civil complaint with respect to the construction of the building of this case between most merchants of the alley market surrounding the site of this case, ③ there is no objective evidence as to the construction of the building of this case, and rather there is no possibility that the building of this case will contribute to the revitalization of the business district of the alley market due to the increase of occupants of the building of this case. ④ According to the results of traffic impact assessment of the site of this case, it seems that there is no need for the plaintiff to recognize that there exists any significant influence around the service level of public interest.

Therefore, the instant disposition rejecting the Plaintiff’s application for permission to construct the instant building is unlawful by deviating from and abusing discretion.

3. Conclusion

If so, the plaintiff's claim is justified.

The presiding judge and judge of interest-gu

Judges Jin Jins

Judges Gindu