[1] Whether the revocation of consultation on construction under Article 29(1) of the former Building Act constitutes a disposition (affirmative), and whether a local government, etc. may seek revocation of the revocation of consultation on construction against the head of the local government, who is the competent permitting authority for the location of the building

[2] The meaning of " accommodation facilities" under Article 2 subparagraph 7 of the former Enforcement Decree of the Natural Parks Act

[1] According to Articles 29(1), 29(2), and 11(1) of the former Building Act (amended by Act No. 10755, May 30, 201), where a local government, etc. intends to build a building, etc., the substance of consultation on construction is not different from that of a building permit for a local government, etc. Therefore, if a local government, etc. intends to build a building prior to consultation with the head of the local government having jurisdiction over the location of the building, a building cannot be constructed even if the local government is a local government. Furthermore, even if examining relevant statutes such as the former Local Autonomy Act, it is difficult to find a remedy to effectively resolve legal disputes where there is a dispute over the cancellation of consultation on construction against another

Therefore, even if the other party is an administrative body, such as another local government, the revocation of consultation on construction may be deemed as an exercise of public authority as a law enforcement on specific facts by an administrative agency (Article 2(1)1 of the Administrative Litigation Act). As long as the Plaintiff, which is a local government, has no means of effective resolution of dispute, the Plaintiff may seek revocation of the consultation on construction from the head of the local government, who is the authority having the jurisdiction over

[2] Article 2 subparag. 10, Article 18(2)5(a), and Article 20(1) of the former Natural Parks Act (Amended by Act No. 10548, Apr. 5, 201; hereinafter the same shall apply); Article 2 subparag. 7, and Article 15(1)3 of the former Enforcement Decree of the Natural Parks Act (Amended by Presidential Decree No. 23194, Sep. 30, 201; hereinafter the same shall apply); Article 3 subparag. 15 of the former Enforcement Decree of the Building Act (Amended by Act No. 1075, May 30, 201); Article 2(2)15 of the former Building Act (Amended by Presidential Decree No. 2356, Dec. 8, 2011; hereinafter the same shall apply); Article 3-4 of the former Enforcement Decree of the Natural Parks Act (Amended by Presidential Decree No. 23155, Apr. 1, 2015>

[1] Articles 11(1) and 29(1)3(2) of the former Building Act (Amended by Act No. 10755, May 30, 201); Article 2(1)1 of the Administrative Litigation Act / [2] Articles 2 subparag. 10, 18(2)5(a) and (2)5(a) of the former Natural Parks Act (Amended by Act No. 10548, Apr. 5, 201); Articles 2 subparag. 7 and 15(1)3(2) of the former Enforcement Decree of the Natural Parks Act (Amended by Presidential Decree No. 23194, Sep. 30, 201); Article 2(1)1 of the former Building Act (Amended by Act No. 23194, May 30, 201); Article 2(1)3(1) of the former Building Act (Amended by Presidential Decree No. 23151, Jan. 15, 2012>

Seoul Special Metropolitan City (Law Firm Bitr International, Attorneys Yu-tae et al., Counsel for the plaintiff-appellant)

Gangwon-do Yangyang-gun (Attorney Han-hee, Counsel for defendant-appellant)

Seoul High Court (Chuncheon) Decision 2012Nu640 decided September 26, 2012

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

1. As to the grounds of appeal Nos. 1 and 2

According to Articles 29(1), 29(2), and 11(1) of the former Building Act (amended by Act No. 10755, May 30, 2011; hereinafter the same) (amended by Act No. 10755, Dec. 1, 2011; hereinafter the same), the substance of consultation on construction does not coincide with the building permission for local governments, etc., and thus, in cases where local governments, etc. intend to build a building, etc., a building may not be constructed even if a local government is a local government, unless consultation is held with the head of the local government having jurisdiction over the location of the building, who is the permitting authority, having jurisdiction over the location of the building. Furthermore, even if examining relevant statutes such as the former Local Autonomy Act, it is difficult to find a means to effectively resolve disputes

Therefore, even if the other party is an administrative body, such as another local government, the revocation of the instant consultation may be deemed to fall under a disposition as an “exercise of public authority as an administrative agency’s law enforcement on specific facts (Article 2(1)1 of the Administrative Litigation Act)” and insofar as the Plaintiff, a local government, has no means of effective dispute resolution, it is reasonable to deem that the Plaintiff may seek the revocation of the instant consultation on construction against the Defendant through an appeal litigation.

The judgment below, which has the same purport, is just, and there is no error in the misapprehension of legal principles as to the disposition of revocation of consultation on construction, standing to sue or violation of jurisdiction in an appeal litigation.

2. As to the grounds of appeal Nos. 3, 4, and 5

A. In a case where the relevant statute itself does not clearly define the definition and the specific scope of the terms used in the said statute, the interpretation of the terms in the statute ought to be construed by comprehensively taking into account the overall structure, intent, and purpose of the statute, the form and content of the provision in question, and relevant statutes (see Supreme Court Decision 2010Du3978, Jun. 24, 2010).

Article 2 subparag. 10, Articles 18(2)5(a), and 20(1) of the former Natural Parks Act (amended by Act No. 10548, Apr. 5, 201; hereinafter the same shall apply), Article 2 subparag. 7, and Article 15(1)3 of the former Enforcement Decree of the Natural Parks Act (amended by Presidential Decree No. 23194, Sept. 30, 201; hereinafter the same shall apply), provide for “facilities, such as hotels andns,” as park facilities permitted by a person who is not a park management agency in a natural park in connection with a park project implemented in a accommodation facility in a park, and does not have a separate definition for accommodation facilities. Meanwhile, Article 2(2)15 of the former Building Act, Article 2(2)5 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 2356, Dec. 8, 2011; hereinafter the same shall apply) of the former Natural Parks Act, and Article 3 subparag. 15(1).

In full view of the provisions on park facilities under the former Natural Park Act, the form, content, legislative purport, and the provisions of the former Building Act, “ lodging facilities” under Article 2 subparag. 7 of the former Enforcement Decree of the Natural Parks Act shall be deemed as “ lodging facilities” under Article 3-4 [Attachment Table 1] subparag. 15 of the former Enforcement Decree of the Building Act, which correspond to the legislative intent of the former Natural Parks Act.

However, according to the reasoning of the judgment below, the building of this case is on the second floor, the first floor, the total floor area of 2,243.81 square meters; the power generator room, machinery room, electricity room, water tank, and stairs room on the first floor; the management office, rehabilitation treatment room, seminars room, restaurant, hobby room, toilet, camping support facility, stairs room, street room, etc. on the second floor, and the second floor on the ground of the building of this case is planned to be installed with family room, organization room, stairs room, room, apartment room, etc.; according to the design outline of the building of this case, the building of this case is on the first floor of the building of this case and on the second floor of this case, the building of this case is merely on the first floor of this case which is planned for rehabilitation treatment, but it is merely on the ground that the area of the building of this case is on the fourth floor of 10.77 square meters, which does not violate the purpose of the Act on the Construction of the Natural Parks.

The court below held that "the former Enforcement Decree of the Natural Parks Act provides that accommodation facilities, such as hotels and inns, which can be newly constructed in accommodation facilities, are not necessarily determined to fall under accommodation facilities as stipulated in Article 3-4 [Attachment Table 1] 15 of the Enforcement Decree of the former Building Act." However, the conclusion that the building of this case constitutes " accommodation facilities" which can be newly constructed in the "place of accommodation" as stipulated in Article 2-7 of the former Enforcement Decree of the Natural Parks Act is justifiable. Thus, contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on accommodation facilities as stipulated in Article 2-7 of the former Enforcement Decree

B. The remaining grounds of appeal are that the building of this case is a facility that cannot be installed in the above accommodation facility, or that it is based on the court below's assumptive judgment, and further, it is not necessary to examine.

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 Yong-deok (Presiding Justice)