Approval for extension of illegal buildings in violation of the Building Act

In granting a building permit, a person having the right to building permit may not refuse an application for permission for reasons other than the grounds for restriction stipulated in the related laws such as the Building Act and the Urban Planning Act. However, Article 42 of the former Building Act provides that a person having the right to building permit may order necessary measures, such as a corrective order, with respect to an illegal building in violation of the Building Act, such as a power failure or a fraction, etc., and provides that a person cannot permit businesses and other acts conducted by using the building, which are prohibited from granting permission under other Acts and subordinate statutes.

Articles 5, 42, and 48 of the former Building Act, Article 99 (1) of the Enforcement Decree of the same Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff 1 and 2 others, Counsel for the defendant-appellant-appellee

The head of Gangdong-gu Seoul Metropolitan Government

Seoul High Court Decision 91Gu19885 delivered on April 2, 1993

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

We examine the Plaintiffs’ grounds of appeal.

According to the reasoning of the judgment below, since Article 48 of the former Building Act (wholly amended by Act No. 4381, May 31, 191; hereinafter the same shall apply) and Article 99 (1) of the Enforcement Decree of the same Act provide that the alteration of use between neighborhood living facilities and business facilities in commercial areas should be regarded as construction of buildings, the court below should obtain a construction permit under the Building Act for such alteration of use. On the other hand, in granting a construction permit, the owner of the building permit shall not refuse the application for permission on grounds other than those subject to restrictions under the Building Act and the Urban Planning Act. However, Article 42 of the former Building Act can order necessary measures such as corrective order for the illegal building's violation of the Building Act, and it can not be permitted to use the above portion of the building without permission for alteration of use under other Acts and subordinate statutes. In light of the above, the court below's determination that the defendant's use of the above part of the building's 20th floor and the above 25th floor square meters of the business facilities (the above 201st floor) cannot be seen.

There is no reason to discuss this issue.

Therefore, all appeals are 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 on the bench.

Justices Jeong Jong-ho (Presiding Justice)