The meaning of "road" under Article 2 (11) of the former Building Act and the procedure and method for the designation of the location of the road;

Article 36 and Article 37 of the former Building Act (amended by Act No. 4816 of Dec. 12, 1994) provides that the term "road under Article 2 subparagraph 11 of the same Act, to which the restriction on construction by building line shall apply, refers only to a road defined in the same Article, i.e., a road publicly notified in advance by the head of a Si/Gun/Gu when a building permit is granted, or a road is designated by the head of a Si/Gun/Gu when a building permit is granted. If a road is designated, its owners are subject to the restriction on land use under the Building Act, so such designation shall require the consent of the interested parties, and the road section, extension, width, location, etc. shall be clearly specified.

Articles 2 subparag. 11, 36, and 37 of the former Building Act (amended by Act No. 4816 of Dec. 12, 1994)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

[Judgment of the court below]

Head of Gwangjin-gu Seoul Special Metropolitan City Office of Law Firm Dong-dong Office

Seoul High Court Decision 94Gu16160 delivered on February 23, 1995

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

Article 36 and Article 37 of the Building Act (amended by Act No. 4816 of Dec. 12, 1994) provides that "road under Article 2 subparagraph 11 of the same Act, to which limitations on construction by building line shall apply pursuant to Article 36 and Article 37 of the same Act, refers only to a road defined in the same Article, i.e., a road publicly notified in advance by the head of a Si/Gun/Gu at the time of permission for construction, or a road designated by the head of a Si/Gun/Gu at the time of permission for construction. If a road is designated, its owner is subject to restrictions on the use of land under the Building Act, so the location shall obtain the consent of the interested parties, and it shall be clearly designated (see Supreme Court Decisions 91Nu3758 delivered on May 25, 1993; 94Nu1552 delivered on March 14, 1995).

According to the reasoning of the judgment below, the plaintiff tried to construct one house on the ground of Seongdong-gu Seoul Metropolitan Government ( Address 1 omitted) 175.82 square meters (hereinafter the site in this case). Since part of the above site was actually used as a road leading to the non-party's housing, which is the owner of the site, the non-party's building permit was issued on August 17, 192 by filing an application for construction permit with the defendant for the above part of the road to be constructed after 1m from the boundary line of the site in this case. The plaintiff did not have any error of law regarding the construction of the above part of the building site in 2.2m from the boundary line of the building site in light of the legal principles as seen above, since the non-party's right of use was not established on the non-party's ground that the non-party's right of use was newly established on the ground of the non-party's construction permit to construct the above part of the building site in this case's 3m from the boundary line of the building site in this case.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)