Plaintiff (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu

April 27, 2017

1. The Defendant’s disposition to return a building report to the Plaintiff on August 19, 2016 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. On August 10, 2004, the Plaintiff purchased 1/2 shares in Dongdaemun-gu Seoul ( Address 1 omitted), 126 square meters (hereinafter “instant land”); on November 3, 2009, 7/22 shares in the above land; and on June 16, 2014, purchased 4/22 shares in the above land; and acquired the ownership of the above land. The instant land is located in the part indicated below as Dongdora in the lower map.

(2) The following maps are omitted:

B. On August 4, 2016, the Plaintiff filed a building report with the Defendant to newly construct a second-story house with a building area of 61.92 square meters on the instant land (hereinafter “instant building report”).

C. On August 19, 2016, the Defendant returned the instant building report to the Plaintiff on the ground that the instant land is a road under the Building Act and it is impossible to newly construct the instant land (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant land is not less than four meters wide, and cannot be seen as a road under the Building Act because the land is not less than four meters designated by the Mayor or the head of the Gu as a road. In addition, a road refers to a road on which pedestrians and automobiles can walk. The instant land is only used as an access to a building on the ground, and is not used for the pedestrian and vehicle traffic of the general public, and thus, it cannot be seen as a road under the Building Act.

2) The instant disposition is against the principle of proportionality in that it has little usefulness as a road, while the Plaintiff’s property right is excessively infringed due to the instant disposition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant land constitutes a road under the current Building Act

According to Article 2(1)11 of the Building Act, a road means a road, the width of which is at least four meters for pedestrian and motor vehicle traffic, on which a new construction or alteration is publicly notified pursuant to the relevant Act and subordinate statutes, or a road or a proposed road is designated and publicly notified by the head of a Si/Gun/Gu by designating the location of a Si/Gun/Gu at the time of a building permit or a report. However, the instant land includes a section, the width of which does not exceed four meters, and does not meet the road requirements (not less than four meters) under the Building Act. Accordingly, the Defendant asserts that the remaining part of the instant land (road 5 omitted) of which is equal to that of the road under the Building Act is at least four meters. However, if the width of the road is not specified, whether the road meets the road requirements under the Building Act should be determined based on the minimum width. Therefore, the Defendant’s above assertion cannot

2) Whether the instant land constitutes a road under the former Building Act

Meanwhile, since the land of this case has been used as the passage of residents since 1975, it constitutes a road under the former Building Act (amended by Act No. 2852, Dec. 31, 1975; hereinafter the same), even if it fails to meet the requirements of the road following the revision of the Building Act, it shall be deemed as a road under the Building Act (see Supreme Court Decision 93Nu20023, Jan. 28, 1994). Thus, we examine whether the land of this case constitutes a road under the former Building Act.

According to Article 2 subparagraph 15 of the former Building Act, roads refers to roads with a width of at least four meters, (2) a public announcement of new construction or alteration is made pursuant to the provisions of relevant Acts and subordinate statutes with a width of at least four meters, or the head of a Si/Gun designates a location when granting a building permit, (3) a road with a width of less than four meters and designated by the head of a Si/Gun.

However, as seen earlier, the width of the instant land shall not be more than 4m, and there is no evidence to deem that the width of the instant land was more than 4m prior to 1975. Thus, the Defendant also is the person who was the head of Si/Gun, who should have been designated as a road at the time of the enforcement of the former Building Act, and the fact that the instant land was deemed as a road under the Building Act, and that there was no evidence to designate the instant land as a road by the head of Si/Gun.

As to this, the defendant, around August 1975, approved the use of the land adjacent to the land of this case ( Address 3 omitted). Since the above (Road 3 omitted) land is a blind-end road without designating the land of this case as a road, approval for use was obtained while the land of this case was designated as a road. According to the closed land map (No. 3) in 1977, since the land of this case can enter a large number of adjacent land at the time, it should be viewed that the head of Si/Gun/Gu designated the land of this case as a road on the ground that it would not be possible to construct a building on the adjacent land without designating the land of this case as a road. However, according to Article 27 (1) of the former Building Act (wholly amended by Act No. 4381 of May 31, 1991), the land of this case should not be presumed to be the land of this case as the only passing through the road of this case.

Thus, since the land of this case cannot be seen as a road under the Building Act, the disposition of this case which is the ground for disposition cannot be maintained.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Park Jong-soo (Presiding Judge)