2011Revocation of revocation of disposition in response to a report on change of construction participants;

Gasdi case, Inc.

Head of Daegu Metropolitan City Southern-gu

November 21, 2012

December 21, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On July 11, 2011, the Defendant’s disposition of responding to a report on the change of construction participants made to the Plaintiff is revoked.

1. Details of the disposition;

A. The land before the annexation on August 7, 2002 (A, B, B, C, and D) was combined with the land before the annexation on August 7, 2002 (A, B, 115 square meters, C, 406 square meters, D, 21 square meters) and the land before the annexation on June 17, 2008 (E large 18 square meters, F, 38 square meters). The following buildings were located.

A person shall be appointed.

B. On February 5, 2004, New Housing Co., Ltd. (hereinafter referred to as “New Housing”) completed the registration of ownership transfer on the instant building site and Nos. 1 of the said table (hereinafter referred to as “New Housing”) due to sale on October 27, 2003. A New Housing was removed from the No. 1 of the above table around February 10, 2004, and the building ledger was cancelled on March 5, 2004.

C. On March 18, 2004, the new house obtained a building permit (hereinafter referred to as the “instant building permit”) from the Defendant for the purpose of selling on the instant building site owned by the new house, with respect to the apartment houses of the size of the first underground floor, the 14th ground floor, the total floor area of 4,129.94 square meters, reinforced concrete, apartment buildings (30 households), and Class II neighborhood living facilities (1 and 2 floors) (hereinafter referred to as the “instant building”).

D. On March 24, 2004, the National Agricultural Cooperative Federation established a right to collateral security and superficies with respect to the instant building site. From March 25, 2004 to April 15, 2004, the Gyeongnam Cultural Heritage Research Institute conducted a cultural genetic index survey on the Japanese unit of the instant building site, and the existing buildings in the instant building site were demolished for the construction of collective housing at the time of the investigation.

E. While the new house reported its commencement on July 27, 2004 and carried out the new construction of the building of this case, the new house entered into a contract to sell 14 households out of the building of this case to be completed between March 19, 2004 and December 29, 2006. The new house was in the situation where a building that can be separated from the land and the object of independent ownership was built after being separated from the land among the buildings of this case. On June 25, 2007, the New house was in the process of a court auction after the Steel Co., Ltd. applied for a compulsory auction and completed the registration of ownership transfer from the compulsory auction on February 27, 2008, and the Plaintiff acquired the ownership of the land of this case through the compulsory auction procedure on February 19, 2008.

F. On May 23, 2011, the Plaintiff filed a report on a change in the construction relationship with the owner and the contractor (hereinafter “the instant report”) with the Defendant, and submitted a written decision of permission for sale by an auction court and a written payment of the sales price in full. On July 11, 201, the Defendant rejected the instant report on the following grounds: (i) the Plaintiff: (ii) the documents attesting his/her right to the ownership of a site; (iii) the documents attesting the change in the name of the former owner or the legal relationship; (iv) the documents attesting the change in the ownership or the legal relationship; and (v) the supervision contract; and

[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, 4-1 to 5, 7-1 to 11-6, Eul evidence 1, 2, 4-1 to 3, and 5-20 of the evidence of Nos. 10, 10-1 to 11-6, and Eul evidence of Nos. 1, 2, 4-1 to 3, and 20-3, respectively, and the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

The instant disposition is unlawful on the following grounds.

A. Since the Plaintiff acquired the ownership of the instant building from the new house, which is a building permitr, by auction, through an auction, the Plaintiff succeeds to the status of the building permitr.

B. Both the instant building site and the instant building were owned by the new house, and thereafter, the new house, the ownership of the instant building site was lost due to auction, acquired statutory superficies on the instant building site for the purpose of owning the instant building. The Plaintiff, at auction, was able to file a claim for registration of creation of statutory superficies on the instant building site in subrogation of the new house by acquiring the instant building at auction. As a result, the Plaintiff was entitled to use the instant building site, and the Plaintiff did not need to submit a separate document proving its ownership to the Defendant, and thus, the instant disposition was unlawful in that determining otherwise, notwithstanding the absence of a separate submission of document

C. The purpose of the instant report by the Plaintiff is not the sale of a multi-family housing, but the lease of a multi-family housing, and thus, it is not necessary to submit documents proving the ownership of the instant building site to the Defendant.

D. The Plaintiff concluded a supervision contract with the previous supervisor on the instant building and confirmed that there was no change in the supervision, so the Plaintiff did not need to newly designate a supervisor. Since the Plaintiff entered into a joint business agreement with a limited liability company registered as a housing construction business entity, the Plaintiff satisfied the requirements for registration as a housing construction business entity under Article 9

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

According to Article 16(1) of the Building Act, Article 12(1)3 of the Enforcement Decree of the Building Act, and Article 11(1) of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 552, Dec. 12, 2012; hereinafter “former Enforcement Rule of the Building Act”), a transferee of a building under construction intends to change a building owner on the previous building permit, he/she shall report to the permitting authority. The act of accepting a report on the change submitted by the permitting authority is not merely an act of accepting the report on the acquisition of the building under construction, but also an act of causing the legal effect of changing the building permit holder (see Supreme Court Decision 94Nu9146, Feb. 24, 1995).

Although the fact that the plaintiff acquired ownership of the building of this case during the compulsory auction procedure is as seen earlier, since the new house is still a permitee of this case before the defendant accepted the report of this case, the plaintiff's assertion is without merit.

B. Judgment on the Plaintiff’s assertion No. 2.B.

(1) According to Article 6(1)1 of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Construction and Transportation No. 189, May 11, 1999), a person who submitted only the scope of the site to be constructed and the documents proving the ownership of the site or the right to use the site can obtain permission. However, the above provision was amended and not applied to the instant permission. According to Article 8(1) of the former Building Act (amended by Presidential Decree No. 8852, Feb. 29, 2008); Article 9(1) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18951, May 11, 2009); Article 16(1) of the former Enforcement Decree of the Building Act (amended by Ordinance of the Ministry of Construction and Transportation No. 1899, Jul. 18, 2005; Ordinance of the Ministry of Construction and Transportation No. 16, etc. 15, 2005).

(2) The facts that the permission of this case is the permission to construct a collective housing for the purpose of sale are as seen earlier. According to the above relevant laws and regulations, the "documents evidencing the alteration of the relation to rights" under Article 11 (1) of the former Enforcement Rule of the Building Act, which is to be submitted to the permission-granting authority when reporting the change of the owner of the building in this case, refers to the "documents evidencing the right to the ownership of the site to be constructed". The plaintiff submitted the documents proving the ownership of the building in this case (the court's decision of permission for the sale of the building in this case and the written payment for the sale price) upon reporting of this case to the defendant, and the fact that the plaintiff did not submit a written consent to the change of the owner of the building in this case or the written consent to the change of the owner of the building in new housing is not disputed

In the report of this case, even if the plaintiff holds the same right as the legal superficies with respect to the site to be constructed by the plaintiff, the plaintiff should submit a separate statement to change the name of the owner of the building under Article 11 (1) of the former Enforcement Rule of the Building Act or a document evidencing the right to own the site to be constructed. However, since the plaintiff did not submit it, the plaintiff's assertion without examining whether the plaintiff has the right to acquire the legal superficies or not is justified.

C. The plaintiff 2.C. Judgment on the argument

On the other hand, the facts that the permission of this case is the permission to construct the apartment house for the purpose of sale in lots, and according to the relevant laws and regulations, the "documents that can prove the change of the relation to the right under Article 11 (1) of the former Enforcement Rule of the Building Act at the time of the report on the change of the owner" means documents that prove the right to the ownership of the site to be constructed, so even if the purpose of the report of this case is not the sale of the apartment house but the lease of the apartment house, the plaintiff shall submit documents that prove the right to the ownership of the site to be constructed for the purpose of sale in lots to the defendant, so the plaintiff's assertion is without merit.

D. Judgment on the Plaintiff’s assertion No. 2. D

(1) According to Article 25(1) of the Building Act, Article 19(1) of the Enforcement Decree of the Building Act, and Article 11(1) of the Enforcement Rule of the former Building Act (attached Form 4), where a building owner constructs a building subject to a building permit under Article 11 of the Building Act, he/she shall designate a certified architect as a construction supervisor and have him/her supervise the construction. In cases where the transferee of the building under construction reports the change of the building owner, he/she shall report the change of the construction supervisor. According to the records in subparagraphs 1 and 3 of the evidence No. 1-3, and the fact inquiry about the result of the fact about the Do governor office of this court, I designated as the construction supervisor at the time of the permission in this case submitted a written waiver to the Defendant on November 204, and thereafter, the Plaintiff’s assertion is without merit.

(2) According to Article 9 of the Housing Act and Articles 10(1) and 11(1) of the Enforcement Decree of the Housing Act, a person who intends to carry out a housing construction project with 30 or more households must be registered. Although there is no evidence to acknowledge that the Plaintiff was registered as a housing construction business entity, the above registration is not the requirement for the instant report, and this part of the Plaintiff’s assertion is reasonable, but the Plaintiff did not meet the requirements for the instant report. As seen earlier, the Plaintiff’

6. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Kim Yong-nam

Judges Kim Jong-Gyeong

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.