208Guhap2300 Revocation of disposition of revocation of corrective order

Medical Corporations, the PMedical Foundation

Attorney Cho Jong-soo et al., Counsel for the defendant

The head of Dong-gu Busan Metropolitan City

November 20, 2008

January 8, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On May 13, 2008, the order of correction against the plaintiff on May 13, 2008 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a medical corporation established on August 17, 1993 for the purpose of establishing and operating medical institutions and operating incidental business necessary to attain the objectives.

B. On May 13, 2005, the Plaintiff newly constructed a 2nd underground and 10th ground building on the land of Busan Dong-gu, Busan and obtained approval for use from the Defendant, and operated the XX hospital, a general hospital, in the above building (hereinafter “instant hospital”), used the 1st and 2nd underground (hereinafter “the instant building”). among the instant hospital building, the Plaintiff used the 1st and 2nd underground (hereinafter “the instant building”).

C. Accordingly, on May 13, 2008, the Defendant issued a corrective order to the Plaintiff on the ground that the Plaintiff violated Article 14(2)2 of the Building Act by using the building part of the instant building, which is the purpose of medical facilities (other hospitals), as a funeral hall, after illegally changing the purpose of use, by June 12, 2008 (hereinafter “instant disposition”).

【Reasons for Recognition】

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The former Enforcement Decree of the Building Act (amended by Presidential Decree No. 20647, Feb. 22, 2008; hereinafter the same) stipulates that a funeral hall can be operated naturally from a building in cases where the purpose of use of the building constitutes medical facilities. However, as the Enforcement Decree of the Building Act was amended by Presidential Decree No. 20647, Feb. 22, 2008, the purpose of use of the building should be included in the funeral hall, unlike the previous one, the building could be operated in the funeral hall. Accordingly, the purpose of use of the building of this case located in the aesthetic district became impossible.

However, the amended Enforcement Decree of the Building Act provides for transitional measures on the classification of the use of existing buildings under Article 5 of the Addenda, and according to this, the previous building could continue to be used as it is, so the disposition of this case is unlawful as it is against Article 5 of the Addenda of the Enforcement Decree of the Building Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

According to Article 2 and Article 14(4)6 of the Building Act, Article 3-4 [Attachment 1] and Article 14(5)6 of the former Enforcement Decree of the Building Act, the term "use of a building" means a group of buildings according to similar structure, purpose of use, and form. Since medical facilities are clearly divided into hospital, isolation hospital, and funeral hall, the use of the building is clearly divided into hospital, isolation hospital, and funeral hall. Thus, even if a general hospital changes or uses the building for the purpose of a funeral hall, the purpose of use of the hospital shall be changed under the Building Act.

However, all general hospitals and funeral parlors belong to medical facilities among education and welfare facility groups, and any change in the purpose of use from general hospitals to general funeral parlors does not require permission or reporting (Article 14(2) of the Building Act). However, Article 14(1) of the Building Act provides that a change in the purpose of use of a building should meet the building standards for the intended change. Thus, if a change in the purpose of use is made contrary to the building standards for the intended change, it would violate Article 14(1) of the Building Act.

According to Article 76(1) of the National Land Planning and Utilization Act, Article 73(1) of the Enforcement Decree of the same Act, and Article 35(e) of the Busan Metropolitan City Urban Planning Ordinance concerning this case, a funeral hall is included in a building which cannot be constructed within an aesthetic zone, and according to the records in the evidence No. 2, No. 3, No. 1, No. 3-2, and No. 4, it can be recognized that the land of the Dong-gu Busan Metropolitan City where the instant hospital is located belongs within an aesthetic zone in accordance with the above Urban Planning Ordinance. Thus, even before the amendment of the Enforcement Decree of the Building Act, the instant hospital cannot be deemed a building that meets the standards for the construction of a funeral hall. Thus, the instant hospital cannot construct the building for the funeral hall, and it is not permitted to change the use of the existing facility into a funeral hall.

Therefore, this part of the Plaintiff’s assertion, which is premised on the fact that a funeral hall can be operated naturally in the part of the building of this case, which is a medical facility, before the revision of the Enforcement Decree of the Building Act, is without any need to further examine it (limited to the legal text of Article 5 of the Addenda of the Enforcement Decree of the Building Act, and it cannot be deemed as a transitional provision to allow the previous building to continue to be used for a funeral hall, such as the Plaintiff’s assertion

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The effects of the presiding judge and judges;

Judges Kang Jin-ju

Judges Park Jong-sung