[1] The meaning of "a case where a building is constructed with a double wall under Article 50-2 (1) 1 of the Building Act"

[2] The purport of Article 81 (3) of the Enforcement Decree of the Building Act that "the double wall shall be constructed as a fire wall," and whether Article 242 of the Civil Code shall apply to the violation (negative)

[1] The purpose of Article 50-2 (1) 1 of the Building Act is not only the case where there is a double wall of each other, but also the case where one owner constructs a building without a separation of 50 cm from the boundary line with adjacent land which is the site. The land owner is subject to the limitation under Article 242 of the Civil Act due to the principle that the whole use of the land on which he has ownership can be used, and it is reasonable to interpret that Article 242 of the Civil Act does not apply in the commercial area from the perspective of guaranteeing the people's property right.

[2] The purport of Article 81 (3) of the Enforcement Decree of the Building Act stipulating that "the double wall shall be constructed as a fire wall" is not to abolish the restriction on separation distance under Article 242 of the Civil Act, but to impose a restriction on double wall construction as a fire wall in consideration of fire prevention purpose for the maintenance and management of the building. Thus, in a case of a violation, it shall not be subject to the application of Article 242 of the Civil Act, separate from the punishment under the Building Act

[1] Article 50-2(2)1 of the Building Act, Article 81(1) of the Enforcement Decree of the Building Act, Article 242 of the Civil Act / [2] Article 81(3) of the Enforcement Decree of the Building Act, Article 242 of the Civil Act

Jin-Friendly Development Co., Ltd. (Law Firm, Kim & Lee, Attorneys Gangnam-soo et al., Counsel for defendant-appellant)

Defendant (Attorney Ahn Jae-sik, Counsel for defendant-appellant)

Busan High Court Decision 2001Na2181 delivered on June 20, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Article 242 of the Civil Act provides that in the construction of a building, unless there is any special custom, a distance not less than a half-meter from the boundary shall be kept, and in the case of a violation, an adjacent landowner may request the alteration or removal of the building. According to Article 50-2(1)1 of the Building Act and Article 81(1) of the Enforcement Decree of the same Act, where two or more buildings are constructed with double walls (referring to a case where the space between the wall and the wall is less than 50cm) in consideration of the urban landscape in a commercial area or an area determined by Building Ordinance for urban beauty, etc., the provisions of Article 242 of the Civil Act shall not apply.

Article 6 (1) of the former Building Act (amended by Act No. 4381 of May 31, 1991) provides that "in cases where a building is constructed in an area designated and publicly announced by the head of a Si/Gun/Gu as necessary for the promotion of urban landscape, and within a commercial area, the provisions of Article 242 of the Civil Act shall not apply to the construction of fire walls on the boundary between the adjoining site and the neighboring site," but the provisions of Article 242 of the Civil Act shall not apply to the construction of a building." However, the Building Act amended by Act No. 5895 of February 8, 1999, instead of deleting Article 6 (1) of the same Act, was amended by newly establishing Article 50-2, to the above contents.

In light of the contents of the above-mentioned legislation and the process of its modification, "the case where a building is constructed with a double wall as referred to in Article 50-2 (1) 1 of the Building Act" means not only the case where there is a double wall of each other, but also the case where a building is constructed without a separation of 50 cm from the boundary line of an adjacent land which is a site, as in this case, by one owner of a building in a commercial area, including the case where a building is constructed without a separation of 50 cm from the boundary line of an adjacent land which is a site. In principle, it is reasonable to interpret that Article 242 of the Civil Act is not applicable in a commercial area, since the land owner is subject to the limitation under Article 242 of the Civil Act due to the use of all land

In addition, since Article 242 of the Civil Code can be excluded from the application by a special contract between the parties, it is permitted to construct double walls in areas other than commercial areas under Article 81 (1) of the Enforcement Decree of the Building Act, and it is merely clear that Article 81 (2) of the same Code does not exceed the scope of delegation by the mother law.

The judgment of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to Article 50-2 (1) 1 of the Building Act and Article 81 (1) and (2) of the Enforcement Decree of the same Act as alleged in the grounds of appeal

2. According to the fact-finding inquiry conducted by the head of Busan Nam-gu, which was rejected by the court below, it is erroneous for the court below to find that there is no evidence to acknowledge that the defendant's part of the building in actual construction was constructed as a general wall structure, not a fire wall, even though the defendant's part of the building in actual construction was not a fire wall structure. However, in light of the process of changing the provisions of Article 50-2 of the Building Act as seen earlier, "the double wall must be constructed as a fire wall" under Article 81 (3) of the Enforcement Decree of the Building Act in light of the process of changing the provision of Article 50-2 of the Building Act, it shall be deemed that there is a restriction on the construction of the double wall as a fire wall in consideration of the fire prevention purpose for the maintenance and management of the building, instead of removing the separation distance limitation under Article 242 of the Civil Act, and therefore, it shall not be subject to the application of Article 242 of the Civil Act in case of violation. Therefore, the court below's rejection of the

3. In light of the records, the plaintiff's assertion that the defendant did not construct a building in accordance with the construction permit is merely a emphasizing that the defendant's building violated the separation distance under Article 242 of the Civil Act. The plaintiff's assertion that the defendant's building violated the separation distance under Article 242 of the Civil Act, in addition to the fact that the plaintiff's assertion violated the separation distance, it cannot be viewed that the removal of the illegal building was sought for the reason of violating other Building Act or that the defendant's construction act constitutes abuse of rights.

4. 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 Park Jae-sik (Presiding Justice)