2016 Gohap79748 Revocation of Non-permission Disposition on Application for Building Permission

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The head of Yongsan-gu Seoul Metropolitan Government

June 23, 2017

July 21, 2017

1. On August 11, 2016, the Defendant’s provisional disposition of denial of construction made to the Plaintiff is revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. On December 9, 2013, the Plaintiff acquired from the Republic of Korea ○○○○○○○ Omi (hereinafter “instant land”) and completed the registration of ownership transfer from the Republic of Korea. The instant land is a site of a rectangular-type pattern abutting on the six-line roads from right back, and was used as a small-scale park (other than a park, which is an urban planning facility) in which the roadside trees and flowers were created at the time of the Plaintiff’s acquisition.

B. On March 28, 2016, the Plaintiff filed an application with the Defendant for an order to construct a Class 1 neighborhood living facility (retail stores) 5 stories (the building area of 76.02 square meters, total floor area of 333 square meters) on the instant land, and changed the permission. However, the Defendant notified the Plaintiff that he would supplement a plan to take measures to resolve the complaints of local residents demanding that the Plaintiff continue to exist in the park on four occasions. The Plaintiff did not supplement the plan to take measures, and eventually, on August 11, 2016, issued a disposition of non-permission to construct the Plaintiff on the ground that it is inappropriate for public welfare (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, 9, 13 through 18 (which has a number)

Number No. 5, No. 6, the purport of the whole pleading, including lot number No. 1; hereinafter the same shall apply), Eul

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition, which was issued only on the ground that there is a civil petition without a ground for non-permission of construction as prescribed by relevant Acts and subordinate statutes, such as the Building Act, is unlawful. Even if the Defendant’s assertion is necessary for the public interest, compared the Plaintiff’s private interest whose exercise of property rights is restricted, the Plaintiff’s private interest is greater. Therefore, the instant disposition is unlawful as it violates the proportionality principle.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) The main text of Article 11(1) of the Building Act provides that a person who intends to construct or repair a building shall obtain permission from the Special Self-Governing City Mayor, the Governor of a Special Self-Governing Province, or the head of a Si/Gun/Gu. The person who intends to construct or repair a building shall, as a matter of course, grant a building permit under the same Act unless the application for a building permit is in conflict with any restrictions prescribed by the relevant laws and regulations, such as the Building Act, and even if there is no need for significant public interests, he/she shall not refuse to grant permission to 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 Decision 2009Du8946, Sept. 24, 200).

2) In light of the developments and contents of the above disposition, the Defendant did not constitute the grounds for restriction under the relevant laws, such as the Building Act, but rather, it did not constitute “necessary for important public interest.” According to the evidence Nos. 2, No. 3 and No. 4, as well as the image of the evidence No. 1, No. 2, No. 3 and No. 4, the Defendant may recognize the fact that a tree was used as a planted park even at the time of the aerial photography of 1982, and that a part of the present neighboring residents oppose the construction of the building on the instant land. However, according to each of the statements No. 1, No. 3, No. 17, No. 18, and No. 1, the Defendant did not determine the instant land which was used as a park for a long time, and it is difficult for the Defendant to recognize the value of the instant land as a park management agency’s own land, not for the public interest. Furthermore, the Defendant appears to have any other significant reason to recognize that the instant land was sold to the park management agency.

3. Conclusion

The plaintiff's claim is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per the text of the lawsuit.

Judge Cho Tae-hoon

Judges Park Jong-dae

Judge Lee Jong-hoon

Site of separate sheet

Relevant statutes

▣ 건축법

Article 11 (Building Permits)

(1) A person who intends to construct or repair a building shall obtain permission from the Special Metropolitan City Mayor, the Special Self-Governing Province Governor, or the head of a Si, Gun, or Gu: Provided, That where a building of at least 21 floors and the use and size prescribed by Presidential Decree is to be constructed in the Special Metropolitan City or a Metropolitan City, permission shall be obtained from

(3) A person who intends to obtain permission pursuant to paragraph (1) shall submit an application for permission, accompanied by the design documents prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, and an application and required documents required under related Acts and subordinate statutes to be submitted to the permitting authority to obtain permission or report under the subparagraphs of paragraph (5): Provided, That an application and required documents prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport by the cooperation with the head of the relevant administrative agency may be submitted before the commencement report