(영문) 대전고등법원 청주재판부 2015.12.16. 선고 2015누10552 판결

The Defendant’s refusal to file an application for the alteration of the use of collective housing with the Plaintiff on June 12, 2015 is revoked (the Plaintiff’s alteration of the use of collective housing made by the Defendant against the Plaintiff on January 6, 2015 in the first instance trial).

After the judgment of the court of first instance, the defendant revoked the above non-permission disposition, and changed the purport of the claim in the trial to exchange the defects in the same disposition as the purport of the claim and the purport of the claim in the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

The court's explanation on this part of the reasoning of the judgment of the court of first instance, on the ground that "the report of this case was 18's" in No. 2, No. 15 of the Reasons for the judgment of the court of first instance was rejected on the ground that "it does not meet the criteria for total area of common facilities of residents under Article 55-2 (1) of the Regulations on Standards for Housing Construction (hereinafter "the Regulations on Standards for New Housing Construction") in the case of changing the purpose of use in accordance with the contents of the report of this case. On June 12, 2015, the above disposition was revoked on the ground that when changing the purpose of use in accordance with the contents of the report of this case, it does not meet the criteria for total area of common facilities of residents under Article 5-2 (1) of the Regulations on Standards for New Housing Construction (hereinafter "the Reasons for Disposition No. 1"), and it again stated "No. 2, No. 1, 2010 of the Civil Procedure Act (hereinafter "the Reasons for Disposition No. 2"), and No. 2," of this case No. 94.

2. The assertion and judgment

A. The plaintiff's assertion

1) Article 55-2(1) of the Regulations on the New Housing Construction Standards, which provides for the criteria for the total area of common facilities for residents, is a newly-established provision that was partially amended by Presidential Decree No. 24621 on June 17, 2013, and cannot be applied to the report on the alteration of use of the apartment of this case that had already completed the approval of use prior to the enforcement date, and the reason for the first

2) Even if the purpose of the multi-purpose hall of the apartment center of this case is changed to the council of occupants' representatives, there is still a space available for multi-purpose rooms in the apartment center of this case. Therefore, the ground for the second disposition is also unlawful

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Judgment on the plaintiff's first argument

The court's reasoning for this part is that the defendant's ground for disposition 1 is illegal, and the plaintiff's first ground for disposition pointing this out is the same as the corresponding part of the judgment, except for the change into "the ground for disposition pointing this out" among the reasons for the judgment of the court of first instance Nos. 4 through 6, No. 21 among the statements of No. 4, No. 4, 6, and No. 21 among the statements of No. 5, No. 4, 6, and No. 6, No. 21, and No. 6, No. 21, 6, and No.

2) Judgment on the second argument by the Plaintiff

A) According to Article 55-2(3), Article 55-2(7)1(b) of the Regulations on New Housing Construction Standards, a housing complex that constructs housing with at least 150 households must establish a senior citizen center that has "multi-use multi-purpose rooms for entertainment, hobby activities, work, etc." and a space for use separately for men and women.

B) However, considering the following circumstances, namely, ① the center for senior citizens of the instant apartment complex comprised of 286 households, the multi-purpose rooms installed with a so-called so-called small, table, book, chair, water purifier, T.V. and space for separate use by men and women (i.e., Arabic, money room, male and female toilet) are separate. The content of the instant report is divided into a space and wall for separate use by men and women in the area corresponding to the multi-purpose room among the total area of the above center for senior citizens, 91.2152 square meters, and it is difficult to view that it is not necessary to change the purpose of use as a tenant meeting, and (ii) it is not necessary to separately establish the minimum standard for the area of the multi-purpose hall in the center for senior citizens as well as the installation of the facility for senior citizens of the instant apartment complex as well as the installation of the facility for senior citizens of the instant case as the installation of the facility for senior citizens of the instant case, even if it appears impossible to use the facility for the above purpose of use.

C) Meanwhile, as seen earlier, Article 55-2 of the Regulations on the New Housing Construction Standards does not apply to the case of applying for approval of a project plan prior to the enforcement of the said regulations, but Article 55(2)2 of the former Regulations on the Standards for Housing Construction also provides that a senior citizen center shall be established by securing "multi-purpose rooms for entertainment, hobby activities, work, etc." as well as Article 55-2(7)1(b) of the previous Regulations on the Standards for Housing Construction. Thus, even if the Defendant entered Article 55-2(7)1(b) of the previous Regulations on the Standards for Housing Construction in the regulations on the grounds of disposition in the instant case, it is difficult to view that there is a defect in the disposition in the instant case.

D) Therefore, the defendant's ground for second disposition is legitimate, and the plaintiff's second ground for appeal is without merit.

3) Sub-determination

Even if some of the grounds for dispositions are lawful, where the legitimacy of the disposition is recognized as the grounds for other dispositions, such disposition cannot be deemed unlawful (see, e.g., Supreme Court Decision 2003Du1264, Mar. 25, 2004). In this case, the legitimacy of the disposition is recognized as the grounds for the second disposition, and thus, the disposition of this case cannot be deemed unlawful.

3. Conclusion

Therefore, the plaintiff's claim that was changed in exchange at the trial is dismissed as it is without merit, and it is so decided as per Disposition (the judgment of the court of first instance became null and void due to the exchange change of litigation conducted at the trial).