Article 64 of the Enforcement Decree of the Building Act

According to Article 2 subparagraph 15 of the Building Act and Article 62 of the Enforcement Decree of the Building Act, the dead-end roads among roads under the Building Act are designated by the head of a Si/Gun only when the head of a Si/Gun designates their locations at the time of permission for construction. Since the road register under Article 64 (1) of the Enforcement Decree of the Building Act is designated as a road and the duty to prepare and keep it is deleted after the accident, the keeping of the above register can not be a road requirement under Article 2 subparagraph 15 of the Building Act.

Article 2 subparag. 15 of the Building Act, Articles 62 and 64(1) of the Enforcement Decree of the Building Act

[Judgment of the court below]

Attorney Lee Yang-ho et al., Counsel for the defendant

Seoul High Court Decision 87Gu501 delivered on October 23, 1987

The case shall be reversed and remanded to the Seoul High Court.

As to the Grounds of Appeal:

In light of the records, even if the previous judgment of the party members on the instant case was examined, the specific location of the 53.67 square meters (16 square meters 16 square meters Hobbebbebbebbebbebbeb(7 square meters) that the non-party 1 consented to use by the non-party 1, and the part of the consent was not recognized as a road with a width under Article 2. 15 of the Building Act. Further, even though the part of the consent was the same as that of the road register prepared and kept by the competent administrative agency under Article 64 of the Enforcement Decree of the Building Act, the court below determined that the area at issue in the instant case was a road under Article 2. 15 of the Building Act, without any evidence, or committed an unlawful act by misunderstanding the legal principles on the designation of a road under the Building Act, which led to failure to exhaust all the necessary deliberation. In light of the purport of the judgment above, it is clear that the construction of the road register at issue is not before and after the judgment.

In addition, according to Article 2 subparagraph 15 of the Building Act, the term "road" means a road (in the case of a road, the passage of which is impossible due to topographical conditions or special features of the area, and a road with a structure and width as determined by the Presidential Decree) of four meters or wider in width, which falls or is scheduled to fall under any of the following subparagraphs, and in the case of item (b), it is the road whose location is designated by the Mayor (including the Seoul Special Metropolitan City Mayor and Metropolitan Cities; hereinafter the same shall apply) or the head of the Gun at the time of permission for construction. In light of Article 62 of the Enforcement Decree of the Building Act as seen above, if the length of a dead-end aggregate is more than 10 meters and less than 35 meters, the width of the road shall be more than three meters:

In view of this, if the width of a dead end road among roads under the Building Act is more than 10 meters and less than 35 meters, if the width of a dead end road is more than 3 meters, it can be known that only the head of Si/Gun designates the location at the time of permission for construction: Provided, That under Article 64(1) of the Enforcement Decree of the Building Act, when the head of Si/Gun intends to designate a road under Article 2 subparag. 15(b) of the same Act, he shall obtain the consent of the interested parties to the road, and if he designates a road, he shall prepare and keep a road register stating the section, extension, width, and location of the road. This is clear that it is not a delegation order from time to time in light of the provisions of Article 2 subparag. 15 of the Building Act as seen earlier, and in particular, it is clear that the road register is designated and its duty to prepare and delete it after the designation of a road register.

However, considering the evidence Nos. 1-4 and Nos. 12-3 as adopted by the court below and the testimony of Non-Party 3 after remanding the case, the area including the point at issue in this case includes the road requirements under the Building Act as seen above, and it is clear that all of the road requirements under the above Building Act are satisfied, and even if the defendant was given consent to the construction of the road, it can be known that the location of the road was designated by the non-party 2. However, the above 16, Nos. 17, and the above non-party 2, who was the owner of the above land at the time of June 1982, consented to the use of the road site as a road site by the non-party 1, and the defendant's construction permission for the non-party 1 was used as a passage to the residents, but the defendant did not prepare and keep a road register stating the section and the extension thereof, etc., which affected the conclusion of the judgment by the misapprehension of the legal principles as to the designation of the road under the Building Act.

Therefore, the original judgment shall be reversed and remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)