[1] The meaning of "housing" and "housing located at the time of designation of a development restriction zone" as defined in Article 11 (1) 1 of the Act on Special Measures for Designation and Management of Development Restriction Zones and Article 13 (1) [Attachment 1] 3 of the Enforcement Decree of the same Act

[2] The case holding that a building which a military unit newly built and managed was used as an officer accommodation at the time of the designation of a development restriction zone, which was used as an officer accommodation at the time of the designation of a development restriction zone, and had been used for residence continuously after the civilian was unclaimed, and a building whose main purpose was used as "official residence" in the building management ledger of development restriction zone constitutes "house which had existed at the time of the designation of a development restriction zone" under Article 11 (1) 1 of the Act on Special Measures for Designation and Management of Development Restriction Zones and Article 13 (1)

[1] Article 11(1)1 of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 13(1) [Attachment 1] of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 19037 of September 8, 2005) / [2] Article 11(1)1 of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 13(1) [Attachment 1] of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 19037 of September 8, 2005)

Plaintiff (Law Firm Il, Attorneys Lee Sung-sung et al., Counsel for the plaintiff-appellant)

The head of Seo-gu Incheon Metropolitan City

Seoul High Court Decision 2006Nu14256 decided Feb. 2, 2007

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

1. Regarding ground of appeal No. 1

Article 11(1)1 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “the Act”) provides that construction of housing and neighborhood living facilities as prescribed by the Presidential Decree and the alteration of the form and quality of land following such construction may be conducted with permission from the head of Si/Gun/Gu. Article 13(1) [Attachment Table 1] of the Enforcement Decree of the Act (amended by the Presidential Decree No. 19037 of September 8, 2005) provides that the scope of construction or installation of a building or structure under Article 11(1)1 of the Act shall be limited to the category of the building or structure under Article 11(1)1 of the Act and the scope of construction or installation under subparagraph 3 of the attached Table 1. According to subparagraph 3 of the attached Table 1, the term “type of facilities” means three houses (referring to the detached houses under subparagraph 1(a) of the Enforcement Decree of the Building Act; hereafter the same shall apply in this subparagraph). In the term “construction and construction restriction zone”, limited to the following cases where a building has already been designated as a building owner.

However, the term “type of facilities” stipulated in the provisions of this case refers to “house to be newly constructed after obtaining permission for construction,” and “house already existing from the time of designation of a development-restricted zone” as “house existing in the development-restricted zone” respectively. As such, there is no reason to interpret “type of facilities” as “type of housing and “the scope of construction and installation” as “the same meaning.” The main purpose of the provision is to prevent urban disorderly expansion and to ensure the healthy living environment for urban citizens by preserving the natural environment surrounding the city (Article 3(1) of the Act), and the Enforcement Decree of the Building Act [Attachment 1] provides that the scope of detached housing under subparagraph 1(a) of the same Table is not the same as that of the above construction-restricted zone, and it is difficult to view that population concentration is the lowest compared to that of other types of houses stipulated in subparagraphs 1 and 2 of the same Table, and thus, it is not necessary to limit the scope of the existing house’s installation and alteration of its form and quality as “the existing house” under the provisions of Article 2(a).

On the other hand, the Act and the Enforcement Decree of the Act do not have any provision concerning the meaning of "housing that existed at the time of the designation of a development restriction zone" under the provisions of this case, and they do not correspond to the type of buildings by use as provided in the Enforcement Decree of the Building Act [Attachment 1]. The term used in the individual Acts and subordinate statutes should be individually interpreted in accordance with the legislative purpose and purport of each Acts and subordinate statutes, barring any special circumstance, and the purpose of the development restriction zone system and the legislative intent of the provisions of this case in light of the above, "housing that existed at the time of the designation of a development restriction zone" under the provisions of this case shall be deemed to be sufficient in the case of independent residential

Examining the reasoning of the judgment below in light of the records, the court below determined that the building was a building newly constructed and managed by a military unit, but was used as an officer accommodation at the time of the designation of a development restriction zone, and had been used for residence continuously after the civilian was unclaimed, and as long as the main use can be seen as a residential building in the building management ledger for a development restriction zone under Article 24 of the Enforcement Decree of the Act, the building of this case, which was registered as an "official residence", constitutes a "house located at the time of the designation of a development restriction zone" under the provisions of this case, was somewhat inappropriate in its reasoning, but it is justified in its conclusion, and there is no error of law such as misunderstanding legal principles

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, the court below's decision that the construction of housing and neighborhood living facilities on the land of this case does not seem to have caused environmental pollution, damage to the ecosystem due to air pollution, water pollution, land pollution, noise, vibration, dust, etc. in the relevant area and its surrounding areas is just and acceptable, and there is no violation of the rules of evidence as alleged in the grounds for appeal.

3. Conclusion

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

Justices Kim Ji-hyung (Presiding Justice)