[1] Whether a building permit holder may refuse a building permit for reasons other than the grounds for restriction under the relevant statutes (negative in principle)

[2] The case holding that it is difficult to view that there is a serious need for public interest to immediately return an application for building permission on the ground that the application for building permission is highly likely to be contrary to the basic plan for urban and residential environment improvement

[1] Unless the application for a building permit is in conflict with any limitation stipulated by the relevant laws and regulations, such as the Building Act, a person holding the building permit should grant a building permit under the same Act as a matter of course, and even if there is no need for significant public interest, a person who satisfies the requirements for reasons other than the grounds for restriction

[2] The case holding that in case where Article 63 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) intends to restrict development activities for an area deemed particularly necessary as an area subject to the basic urban planning, etc., considering the purport of "public notice in advance of the restricted area, restriction subject to restriction, restriction subject, and restriction period", it is difficult to view that a request for building permission is likely to be contrary to the basic urban and residential environment improvement plan formulated by the mayor, and thus, it is necessary to immediately return the request for building permission.

[1] Article 11 of the Building Act / [2] Article 11 of the Building Act, Article 63 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009)

[1] Supreme Court Decision 2002Du3201 decided Apr. 25, 2003 (Gong2003Sang, 1337) Supreme Court Decision 2006Du1227 decided Nov. 9, 2006 (Gong2006Ha, 2079)

Plaintiff (Law Firm citizen, Attorneys Jeon Young-sik et al., Counsel for plaintiff-appellant)

The head of Ansan-si (Attorney Lee Dong-gu, Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu34797 decided May 20, 2009

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below found the facts of the judgment and found the facts of the judgment. ① The application of this case was highly likely to be included in the area subject to the "Master City and Residential Environment Improvement Master Plan" in which the Ansan market was established at the time of the rejection disposition of this case; ② The application of this case to increase the number of households of the existing building is accepted under such circumstances, ② there is a high possibility that the public interest purpose of the urban management planning project, such as the improvement of residential environment due to bad housing development, and the increase of project cost burden, etc., may cause serious obstacles to the implementation of the project itself; ③ even if the plaintiff obtained the building permission of this case, the construction permission of this case is restricted pursuant to Article 12 (2) of the former Building Act, as long as the restriction on the construction permission for the whole site of this case is publicly notified, and even if the building that the plaintiff intends to construct is designated as the area subject to the basic plan for urban and residential environment improvement plan, there is a high possibility of removal of new building on this ground.

However, we cannot accept the above decision of the court below for the following reasons.

Unless the application for a building permit is in violation of any restriction stipulated by the relevant laws, such as the Building Act, a building permit holder shall, as a matter of course, grant a building permit under the same Act, and even if there is no need for significant public interest, no permission shall be denied against a person who meets the requirements for reasons other than the grounds for restriction prescribed by the relevant Acts and subordinate statutes (see Supreme Court Decisions 2002Du3201, Apr. 25, 2003; 2006Du1227, Nov. 9, 2006, etc.).

Article 63(1)3 of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter the same) provides that “The Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, the head of a Si/Gun, or the head of a Gun, as an area for which a basic urban planning or an urban management plan has been formulated, may, if the alteration of the specific use district, specific use district, or specific use district is expected and the standards for permission for development activities are expected to vary substantially, restrict the permission for development activities only once for a period of not more than three years after deliberation by the Central Urban Planning Committee or the Local Urban Planning Committee, as prescribed by Presidential Decree: Provided, That it is difficult to consider that there is a high possibility that the restriction of permission for development activities for an area falling under subparagraphs 3 through 5 may be extended only once for a period not exceeding two years, and that the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, or the head of a Gun, as an area subject to restriction on construction permission for new and environmental development activities.”

Therefore, the lower court erred by misapprehending the legal doctrine on the building permit, thereby adversely affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)