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(영문) 서울고등법원 2017.04.11 2017누31370
건축신고 반려처분 취소
Text

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The reasons why the court should explain this part of the reasons for the decision of the court of first instance are the same as the corresponding part of the reasons for the decision of the court of first instance. Thus, this part of the reasons are cited in accordance with Article 8(2) of the Administrative Litigation Act and

2. Whether the instant disposition is lawful

A. 1) The parties’ assertion 1) There is no statutory ground for the submission of the written consent of the residents in the relevant region when filing a building report for the new construction of the Plaintiff livestock shed. Therefore, the instant disposition that the Defendant rejected the Plaintiff’s building report on the ground of the submission of written consent from the residents is unlawful. The Defendant enacted the instant guidelines for restricting the operation of animal breeding facilities, etc. (hereinafter “instant guidelines”) in consideration of the circumstances under which the Defendant cannot designate all areas within the jurisdiction as restricted areas for raising livestock in accordance with Article 8(1) of the Act on the Management and Use of Livestock Excreta (hereinafter “Act on Livestock Excreta”) and Article 4 of the Ordinance on the Management and Use of Livestock Excreta in Macheon-si (hereinafter “Ordinance on Livestock Excreta”).

The Defendant’s demanding the Plaintiff to submit written consent is based on the instant guidelines, and this is based on the statutory basis.

Even if the Defendant did not have the legal basis for demanding the Plaintiff to give written consent, the Defendant was required to submit written consent from the residents in the neighborhood and the soldiers in the nearby military unit to preserve the living environment and the quality of water sources and to take the instant disposition.

In addition, the Plaintiff is divided into 12 livestock penss in conformity with the construction report requirements under Article 14 of the Building Act and Article 11 of the Enforcement Decree of the same Act, which shall obtain a building permit under Article 11 of the Building Act and the consent of the commander of the competent unit under Article 13 of the Protection of Military Bases and Installations Act (hereinafter “Military Bases Act”).

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