In a case where an administrative agency which received a report of change of use of a building containing a violation of construction-related laws and regulations refuses to grant approval for use of the building whose use has been changed according to the details of the report, whether the same limitation as the cancellation of the building permission

Under the Building Act (amended by Act No. 7696 of Nov. 8, 2005), with respect to a report of change of the purpose of use, an administrative agency should review and accept the report only if the report satisfies the prescribed formal requirements and lawfully submitted it, and it does not conduct a substantive examination. Thus, even if the reported contents contain contents violating construction-related laws and regulations, if the reported contents contain contents, the administrative agency which accepted the report may refuse to approve the use, and it does not result in restrictions such as cancellation of the building permission.

Articles 14 and 18 of the Building Act (amended by Act No. 7696 of Nov. 8, 2005)

Supreme Court Decision 91Nu5358 delivered on April 10, 1992 (Gong1992, 1604) Supreme Court Decision 93Nu11968 delivered on April 29, 1994 (Gong1994Sang, 1706) Supreme Court Decision 96Nu1399 delivered on September 10, 196 (Gong196Ha, 3047)

Plaintiff (Law Firm Han, Attorneys Park Tae-tae et al., Counsel for the plaintiff-appellant)

The head of Gangdong-gu Seoul Metropolitan Government (Law Firm KEL, Attorneys Kim Yong-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Nu25313 delivered on September 7, 2005

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

The grounds of appeal are examined.

1. The judgment of the court below

The judgment of the court of first instance, cited by the court below, acknowledged the facts as stated in its reasoning after comprehensively considering the evidence adopted by the defendant. As to the disposition that the defendant rejected an application for approval of use of the part of the building of this case from among the buildings of this case (hereinafter "refluence disposition") and the disposition that ordered the restoration to its original state ("refluence order"), it is hard to see that the defendant's rejection of approval of use or corrective order would cause disadvantage to the building owner due to the rejection of approval of use or corrective order, and the degree of violation of the laws and regulations related to building administration and third parties' interest, and thus, it is hard to see that the plaintiff's report of this case's alteration of use as part of the building of this case, which was used as parking lots, exceeded the building volume ratio ratio of the building of this case, and it is hard to see that the building area ratio of the neighboring building of this case did not change to the non-use size ratio of the building of this case, and thus, it is hard to see that the plaintiff's report of this case was unlawful.

2. Judgment of the Supreme Court

Article 14 (1) of the former Building Act (amended by Act No. 5895 of Feb. 8, 199) provides that "any person who intends to change the purpose of a building for which approval for use has been obtained pursuant to the provisions of Article 18 shall obtain permission from the head of a Si/Gun/Gu under the conditions as prescribed by the Presidential Decree: Provided, That the change of purpose of use of a minor matter as prescribed by the Presidential Decree shall be deemed to have been obtained by making a report, but Article 14 (2) of the amended Building Act as of the same day shall apply mutatis mutandis to the case where he/she has reported the change of purpose of use of a building for the same purpose as that of an administrative agency because he/she has failed to obtain permission for the change of purpose of use for the same purpose, he/she may lawfully change the purpose of use of a building for the same reason as that of an administrative agency under the provisions of paragraph (3) without reporting the change of purpose, and the same shall not apply mutatis mutandis to the case where he/she wishes to change the purpose of use of a building permit by more than 90 square meters:

However, the court below held that the defendant's rejection of approval for use of the part of the building of this case and the corrective order for the alteration of the purpose of use of the building of this case should be applied to the principle of profit bridge, on the premise that the defendant's acceptance of the plaintiff's report of alteration of purpose of use of the building of this case's building of this case's case's case's alteration of purpose of use is a defect in the acceptance of the report itself under the premise that it was examined about its substantial contents. In light of the circumstances as stated in its reasoning, it is difficult to return the application for approval for use of the building of this case's case's case's case with the plaintiff's personal benefit sacrifice and make it difficult to see that there is a serious infringement on the public interest to the extent

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)