Requirements for deeming construction commencement as “the commencement of construction” under Article 14(3) of the Building Act, and whether the commencement of construction or construction falling under the preparation of new construction of a building can be deemed as “the commencement of construction” under Article 14(3) of the Building Act (negative in principle)

Article 14(3) of the Building Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)

C Exchange Housing Construction Corporation

Gyeongnam-do Mayor (Law Firm Geum-gi, Attorney Kang Tae-tae, Counsel for the plaintiff-appellant)

Busan High Court Decision 2012Nu3439 decided May 10, 2013

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Based on the adopted evidence, the court below acknowledged that the plaintiff filed a building report on the housing of this case on October 4, 2007 and accepted it on November 20, 2007 by the defendant, and the defendant issued a disposition revoking the building report on January 20, 201 on the ground that the plaintiff did not commence construction work within one year from the date of the building report, and that the plaintiff started construction work on May 20, 2008 and completed construction work on June 20, 2009, and completed construction work on October 15, 2009 for the housing of this case. However, the court below determined that the disposition was unlawful since the plaintiff started construction work on the ground that the building site was suspended on May 20, 208, which was within one year from the date of the building report, and the purification work on the land adjacent to the basic part of the housing of this case, and the construction work was revoked by the commencement of construction work on May 20, 2008.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

Article 14(3) of the Building Act provides, “If a person who has filed a report under paragraph (1) fails to commence construction within one year from the date the report is filed, the report shall become invalid.” Thus, if it is deemed that a new construction of a new building has commenced, barring special circumstances, the construction of a new building should commence, such as excavation or construction of the new building, barring special circumstances. Thus, it cannot be said that the commencement of construction commences merely with the commencement of construction or construction corresponding to the preparation for new construction, such as removal of the existing building or facilities, construction of a new building, construction of a site for a new building, construction of a fence or access road, etc. (see Supreme Court Decision 94Nu7058 delivered on December 2, 194, etc.).

Therefore, even if a site suspension work or a purification tank was performed, barring special circumstances, barring special circumstances, such as the construction of the building itself to be newly constructed, the construction of the site suspension work or the construction of a septic tank cannot be deemed to have commenced, barring any such construction work.

According to the reasoning of the lower judgment and the record, even though the Plaintiff filed a building report on October 4, 2007, and even until October 15, 2009, did not perform excavation works or construction works on the instant housing itself that the Defendant intended to newly construct until the instant disposition was rendered. Thus, in light of the aforementioned legal principles, the Plaintiff cannot be deemed to have commenced construction works within one year from the date of the building report.

Nevertheless, the lower court determined that the Plaintiff started construction of the instant housing within one year from the construction report date, based on the grounds stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on “the commencement of construction” under Article 14(3) of the Building Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)