[1] Whether a vinyl constitutes a structure prohibited by the Act on Special Measures for Designation and Management of Development Restriction Zones even if it does not constitute a building under the Building Act (affirmative)

[2] Where a statute was amended to allow an act of installing a structure within a development restriction zone without permission or reporting due to the establishment of Article 11(3) of the Act on Special Measures for Designation and Management of Development Restriction Zones and the relevant provisions related to the Enforcement Rule of the same Act, whether punishment for unlawful installation committed prior to the enforcement of the statute is extinguished (negative)

[3] Whether the usage classification of a building and the Enforcement Decree of the Building Act as to the alteration of use of a building within a development restriction zone are applied or the regulatory method for the alteration of use is applied (negative)

[4] The case holding that since the Act on Special Measures for Designation and Management of Development Restriction Zones separately prescribes the purpose of use of livestock pens and fish farming facilities in the Act on Special Measures for Designation and Management of Development Restriction Zones, using livestock pens without permission in development restriction zones constitutes a violation of the Act on Special Measures for Designation and Management of Development Restriction Zones

[1] Even in cases where a vinyl house does not fall under a building that is subject to the regulation of the Building Act, its structure constitutes a structure that is naturally determined by the main text of Article 11(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones as a matter of course

[2] Article 11(3) newly established by the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005) provides that "a minor act as prescribed by the Ordinance of the Ministry of Construction and Transportation may be performed without permission or reporting." The supplementary provision enters into force six months after the date of its promulgation, and Article 7-2 and [Attachment Table 3-2] of the Enforcement Rule of the same Act newly established by Ordinance No. 464 of the Ministry of Construction and Transportation of August 10, 2005 lists such minor acts. However, even if a law was revised so that part of the previous acts may be permitted or reported without permission or reporting, it would result from the change of legal ideology that the punishment of some acts punished as crimes in the past is unreasonable, rather than from the reflective consideration, it is deemed that the provisions of the Act on Special Measures for Designation and Management of Development Restriction Zones have already ceased to exist before the enforcement of the same Act.

[3] As long as the Act on Special Measures for Designation and Management of Development Restriction Zones stipulates a method of regulating the use of a building entirely different from the Building Act with regard to the alteration of use of a building in a development restriction zone, there is no room to apply the classification of the use of a building or the method of regulating the use of a building under the Building Act and the Enforcement Decree of the Building Act to the alteration of use of a building conducted in a development restriction zone. If the alteration of use of a building in a development restriction zone is based on the Building Act and the Enforcement Decree of the Building Act, it is not subject to permission because it constitutes a change of use within the same facility group, or is not subject to reporting, or it is interpreted as a difference between the designation of a development restriction zone and that of a building under the Special Measures for Designation and Management of Development Restriction Zones, in principle, in order to prevent urban disorderly spread and preserve the natural environment surrounding the city, and to ensure the healthy living environment of the city, it is unreasonable to abolish the purpose of the Act on Special Measures for Designation and Management of Development Restriction Zones to strictly separate it from the act subject to permission under the Building Act as a development restriction zone.

[4] The case holding that since the Building Act and the Ordinance on Special Measures for Designation and Management of Development Restriction Zones separately prescribes the use of livestock pens and fish farming facilities, the use of livestock pens and fish-storages inside a livestock shed in a development restriction zone without permission as an ornamental fish raising place and a place of work constitutes a violation of the Act on Special Measures for Designation and Management of Development Restriction Zones as an act of changing the use of livestock pens to a fish farming facility without permission

[1] Articles 11(1) and 30 of the Act on Special Measures for Designation and Management of Development Restriction Zones; Article 2 of the Building Act / [2] Article 11(3) of the Act on Special Measures for Designation and Management of Development Restriction Zones; Article 7-2 [Attachment 3-2] of the Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones / [3] Articles 11, 30 of the Act on Special Measures for Designation and Management of Development Restriction Zones; Articles 13, 18, and 19 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones; Articles 7-2, 2, and 14 of the Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones; Articles 3-4 and 14 of the Enforcement Decree of the Building Act / [4]

[1] Supreme Court Decision 90Do2095 decided Nov. 27, 1990 (Gong1991, 290) / [3] Supreme Court Decision 2006Do9214 decided Mar. 15, 2007 (Gong2007Sang, 594)

Defendant

Defendant

Attorney Seo Sang-de et al.

Suwon District Court Decision 2006No3614 decided May 10, 2007

The appeal is dismissed.

1. As to the construction without permission

A. Even in cases where a vinyl house does not fall under a building that is subject to the regulation of the Building Act, it is naturally applicable to a structure determined by the main text of Article 11(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Special Measures Act”) so that it cannot be installed within a development restriction zone. The grounds of appeal on this point cannot be accepted.

B. The lower court determined that Article 11(3) of the Enforcement Rule of the Special Measures Act and Article 7-2 [Attachment Table 3-2] of the Enforcement Rule of the Special Measures Act provide that “the construction of the instant vinyl constitutes minor acts, which may be permitted or reported without permission or report,” and Article 11(3) [Attachment Table 3-2] of the Enforcement Rule of the Special Measures Act provides that such minor acts may be carried out without permission or report, but Article 11(3) [Attachment Table 3-2] of the Enforcement Rule of the Special Measures Act provides that the said minor acts may be listed, but Article 11(3) of the Special Measures Act was newly established under the Special Measures Act as amended by Act No. 7383, Jan. 27, 2005; Article 7-2 of the Enforcement Rule of the Special Measures Act and [Attachment 3-2] [Attachment 3] of the Enforcement Rule of the Special Measures Act and Article 7-2 of the Enforcement Rule of the said Act shall not be subject to punishment for the Defendant’s newly established or amended Act, even if there were no reasonable changes in its idea.

In light of the provisions of the relevant Acts and subordinate statutes and the records, first of all, the judgment of the court below that the Defendant’s act committed before the enforcement of Article 11(3) of the Act on Special Measures and Article 7-2 [Attachment Table 3-2] of the Enforcement Rule of the Act on Special Measures is just and just, and this part of the judgment of the court below is just, so the court below determined that the Defendant’s act does not constitute an “minor act without permission or report” as provided in the above [Attachment Table 3-2], even if there were errors as alleged in the grounds of appeal, it does not affect the conclusion of the judgment, and even if it is examined in light of the contents of [Attachment Table 3-2] of Article 7-2 of the Enforcement Rule of the Act on Special Measures and the records, even if the instant vinyl installed by the Defendant meets the requirements to be permitted to a vinyl house for agriculture as provided in subparagraph 1(f) of the above [Attachment Table 3-2], or it does not seem to fall under any item of the above [Attachment 3-2].

C. As seen earlier, Article 11(3) of the Enforcement Rule of the Act on the Special Measures, Article 7-2 [Attachment 3-2] of the Enforcement Rule of the Act on the Special Measures is effective after the establishment of the Defendant’s vinyl, and it is not applicable to this case. Thus, the issue of whether the Enforcement Rule of the Act on the Special Measures [Attachment 3-2] is unconstitutional or unlawful cannot be the premise of the trial of this case. Thus, the argument that “The Enforcement Rule of the Act on the Special Measures” [Attachment 3-2] can only be permitted without permission or report only the establishment of a vinyl house in agriculture, an open vinyl house in the stable playground, or an open vinyl house for wedding, or a vinyl house for cultivating the ornamental fish as in this case, without any reasonable ground, is arbitrary discrimination against the farmers who want to grow the ornamental fish, and thus exceeds the scope of delegation of the Act on the Special Measures, or violates the principle of equality and equality, and thus, is not acceptable.”

2. As to the alteration of use without permission

Article 11(1) of the Special Measures Act prohibits, in principle, the alteration of the purpose of use of a building in a development restriction zone for purposes prescribed by the Presidential Decree, stipulates that the act of changing the purpose of use of a building for purposes prescribed by the Presidential Decree may be performed after obtaining permission from the head of a Si/Gun/Gu, Paragraph (2) provides that certain acts prescribed by the Presidential Decree may be performed after reporting to the head of a Si/Gun/Gu, Paragraph (3) provides that minor acts prescribed by the Ordinance of the Ministry of Construction and Transportation may be performed without permission or reporting. Pursuant to each of the above provisions, the Enforcement Decree of the Special Measures Act provides that the act of changing the purpose of use permitted under Article 18(1) may be done without permission or reporting under Article 18(1), the act of changing the purpose of use permitted under Article 19 shall be limited to the act of changing the purpose of use permitted without permission or reporting under Article 7-2(5) [Attachment 3-2] of the Enforcement Decree of the Special Measures Act, and the Enforcement Decree of the Special Measures Act provides detailed types of buildings constructed within the development restriction zone after obtaining permission under Article 13(1) [Attachment1].

Meanwhile, unlike this, the Building Act classifys the use of a building into 27 and other facilities prescribed by Presidential Decree in Article 2(2), classifys the use of a building again under Article 14(4) into 9 groups, and changes the use of a building falling under any of the facility groups in Article 14(2)1 into the upper group (the number of each subparagraph of paragraph (4) is smaller than that of each subparagraph), requires permission of the head of the Si/Gun/Gu. Article 14(2)2 provides that an act of changing the use of a building falling under any of the facility groups in Article 14(2)2 shall be reported to the head of the Si/Gun/Gu. Article 14(3) provides that an act of changing the use of a building falling under any of the facility groups in the lower group (the number of each subparagraph of paragraph (4) is larger than that of each subparagraph of paragraph (4) and Article 14(2)1 provides that an act of changing the use of a building falling under any of the facility groups in the same group to the head of the Si/Gun/Gu/Gu.

As can be seen, insofar as the Act stipulates a regulatory method that completely differs from the Building Act with regard to the alteration of use of a building in a development-restricted zone, there is no room for applying the classification of the use of a building or the regulatory method for the alteration of use of a building under the Building Act and the Enforcement Decree of the Building Act to the alteration of use of a building conducted in a development-restricted zone. If the alteration of use of a building in a development-restricted zone is based on the Building Act and the Enforcement Decree of the Building Act, it is not subject to permission, not subject to permission, or subject to reporting because it constitutes a change of use within the same facility group, or a change of use within the same facility group, or if it is interpreted that it is not a difference in the report, in principle, to prevent urban disorderly expansion and to ensure the healthy living environment for urban citizens by preserving the natural environment surrounding the city, it would be unreasonable that the purpose of the Act on the Special Measures is to strictly separate the alteration of use of a building conducted in a development-restricted zone from the act subject to permission on the premise of meeting certain requirements, and to be discarded (see, e.

Therefore, even if the sericultural, sericultural, and fish facilities are classified as a building for the same purpose as the stable, it is reasonable to view that the use of a building in a development-restricted zone as a stable and the use of a fish farming facility as a fish farming facility differs from the use under the Act on Special Measures.

The court below held that since Article 3-4 [Attachment 1] 21 (a) of the Enforcement Decree of the Building Act provides for " stables" as one of the types of livestock for each use of a building and it is also included in stables, such as sericultural, felling, fish facilities and hatcheries, etc., the defendant's use of part of the stable of this case as a ornamental fish shed and a place of work for it is nothing more than the use of " stables" for the purpose of "livestock sheds" and thus it cannot be called a change of purpose of use", in light of the fact that Article 13 (1) [Attachment 1] of the Enforcement Decree of the Act on Special Measures for Livestock Industry specifically separates the types of livestock sheds and fish farms and other facilities, the court below held that the defendant's use of livestock as a facility necessary for cultivating livestock from the place of work of a livestock shed in accordance with Article 11 (1) [Attachment 1] of the Act on Special Measures, on the premise that the act of sericulturing or fish in a building classified as livestock shed under the Building Act.

In light of the above legal principles and records, we affirm the judgment of the court below as just and there are no errors in the misapprehension of legal principles as to the use of buildings and the meaning of change of use, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)