[1] Whether a land designated as an urban design district and for which a joint development agreement with the neighboring land owner was not reached constitutes "a site where de facto construction is impossible" under the Act on the Ownership of Housing Sites (negative), and whether such interpretation violates the provisions of the Constitution on the guarantee of property rights (negative)

[2] The concept of an urban design road, which is located within the urban design district and designated as an urban design, and whether the part of the alternative mixed-use passage becomes an urban planning facility where the construction of urban planning facilities is restricted under the Building Act (negative)

[1] In the case of a single building, other than a joint development, designated as an urban design district under the Building Act for the purpose of promoting urban functions and aesthetic view, which is not a joint development project, the entire construction is not prohibited, because it is not a land for which regulation is imposed due to non-permission, etc., and if it meets the urban design standard, it is possible to jointly or independently construct by consultation, sale, exchange, etc. with the neighboring land owner. Thus, solely on the ground that such consultation, etc. is not properly conducted, it cannot be deemed that the construction of a house is prohibited or actually impossible under the relevant Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, etc., under Article 20 (1) 3 of the Act on Ownership of Housing Sites and the Urban Planning

[2] The part of the site concerned, which is located within the urban design district and designated as an urban mixed-use path as an urban design, is merely an vacant lot in the site area in calculating the building-to-land ratio and the usage rate of the building, and is merely an vacant lot in the site area in the calculation of the building-to-land ratio and the usage rate of the building. Thus, it is not only the burden that the land should be left as an vacant lot because it is part of the restriction on the location, form, size, etc. of the building that is to be gained in the construction by including it in the urban design district, and it is not a road as an urban planning facility where the construction of the

[1] Article 20 (1) 3 of the Act on the Ownership of Housing Site, Article 23 of the Constitution / [2] Article 2 (1) 1 (b) of the Urban Planning Act, Article 3 (1) 1 of the Enforcement Decree of the Urban Planning Act, Article 3 subparagraph 3 of the Enforcement Decree of the Act on the Ownership of Housing Site, Article 62 of the Building Act, Article 108 of the Building Act, Article 61 [Attachment 2] of the Seoul Special Metropolitan City Building Ordinance

[1] Supreme Court Decision 93Nu19405 delivered on May 24, 1994 (Gong1994Ha, 1844) Supreme Court Decision 95Nu14572 delivered on January 26, 1996 (Gong196Sang, 811)

Plaintiff (Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

The head of Mapo-gu Seoul Metropolitan Government

Seoul High Court Decision 96Gu32685 delivered on July 3, 1997

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

We examine the grounds of appeal.

1. On the first ground for appeal

In the case of a single building, other than a joint development project, designated as an urban design district under the Building Act for the purpose of promoting the urban function and aesthetic view, which is not a joint development project, the construction is not entirely prohibited because it is the land for which regulation is implemented by non-permission, etc., and if it conforms to the urban design standards, it is possible to jointly or independently construct by consultation, sale, exchange, etc. with the neighboring land owners. Thus, solely on the ground that such consultation is not properly conducted, it cannot be deemed that the construction of a house is prohibited or actually impossible under the relevant Acts and subordinate statutes, such as the Building Act and the Urban Planning Act (see Supreme Court Decisions 93Nu19405 delivered on May 24, 1994, 95Nu14572 delivered on January 26, 196, etc.). Such interpretation does not violate the provisions of the Constitution concerning the guarantee of property rights.

In the same purport, the decision of the court below is just in holding that the part of the site on the north side of the instant site does not constitute a site where the construction of a house is prohibited or substantially impossible under the relevant Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, etc., under Article 20 (1) 3 of the Act on the Ownership of the Housing Site, and there is no error of law such as theory

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below held that the part of the site of this case, located within an urban design district and designated as an urban design mixed-type passage (an open space within a site for passage of vehicles and pedestrians under Article 61 [Attachment Table 2 of the Seoul Special Metropolitan City Building Ordinance] for traffic of vehicles and pedestrians, is merely an open space within a site area in calculating building-to-land ratio and building volume ratio of the building in the urban design, and is merely an open space within a site area in the site area in calculating building-to-land ratio and building volume ratio of the building. This part is merely an open space within the site area in the urban design. It is not only the burden that the site should be left as an open space as part of the restriction on the location, form, size, etc. of the building that the building becomes a building in the construction because the building site is included in the urban design district, and it is not a road in the urban planning facility where the construction is restricted under the Building Act. In light of the provisions and records of the related Acts and subordinate statutes,

3. 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)