[1] Where a person who obtained a building permit starts construction before the cancellation of the building permit, whether the permitting authority may cancel the building permit under Article 11(7) of the former Building Act on the ground that the commencement period has expired (negative in principle), and whether the same applies to cases where a person who obtained the building permit tried to start construction before the cancellation of the building permit but failed to start construction due to an illegal order for discontinuance of construction (affirmative)

[2] Whether construction of a new building can be deemed to have commenced only by starting work or construction for preparation for new construction of a building, such as removal of an existing building or facility, planting of trees or trees, construction of a site for a new building, construction of a fence or an access road (negative)

[1] Article 11(7) of the former Building Act (amended by Act No. 12246, Jan. 14, 2014) provides that where a person who obtained a building permit fails to commence construction works within one year from the date on which the permit was granted, the permitting authority shall revoke the permit. However, where a justifiable ground exists, the period of commencement of construction works may be extended by up to one year, and the same does not directly prohibit the person who obtained the building permit from commencing construction works after the expiration of the period of commencement.

The purpose of this Act is to pursue the prompt fulfillment of the administrative purpose of the building permit, but also protect the interests of the person who has obtained the building permit. Thus, if a person who has obtained the building permit commences construction before the construction permit was revoked, the permitting authority cannot revoke the building permit, unless it is deemed necessary for the special public interest to revoke the building permit, even if the commencement period has expired. The same applies to a case where a person who has obtained the building permit seeks to commence construction before the construction permit was revoked, but fails to commence construction as an illegal order for discontinuance

[2] In light of the fact that a new construction of a building was commenced, barring any special circumstance, the construction work should be commenced such as the excavation of the site of the building or the construction of the building. Thus, it cannot be said that there was a commencement of construction work or construction work that constitutes preparation for the construction of the new building, such as removal of the existing building or facilities, planting of trees or trees, construction of the site of the new building, construction of the temporary fence or access road, etc.

[1] Article 11(7)1 of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014) / [2] Article 11(7)1 of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014)

[1] Supreme Court Decision 85Nu93 delivered on October 22, 1985 (Gong1985, 1564) / [2] Supreme Court Decision 94Nu7058 delivered on December 2, 1994 (Gong195Sang, 502)

Plaintiff (Law Firm Hond et al., Counsel for the plaintiff-appellant)

Busan Metropolitan Government Head of the Gun (Law Firm International, Attorneys Hong-sik et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2011Nu4558 decided September 21, 2012

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

The grounds of appeal are examined.

1. Article 11(7) of the former Building Act (amended by Act No. 12246, Jan. 14, 2014) provides that where a person who obtained a building permit fails to commence construction works within one year from the date on which the permit was granted, the permitting authority shall revoke the permit. However, where a justifiable ground exists, the period of commencement of construction works may be extended by up to one year, and the same does not directly prohibit the person who obtained the building permit from commencing construction works after the expiration of the period of commencement.

The purpose of this provision is to pursue the prompt fulfillment of the administrative purpose of the building permit, but to protect the interests of the person who obtained the building permit together. Therefore, if a person who obtained the building permit started construction prior to the cancellation of the building permit, it is reasonable to deem that the permitting authority cannot cancel the building permit, unless it is deemed necessary for the special public interest to cancel the building permit even after the commencement period has expired (see Supreme Court Decision 85Nu93, Oct. 22, 1985). The same applies to a case where a person who obtained the building permit seeks to start construction before the cancellation of the building permit, but fails to start construction due to the illegal order for discontinuance of construction.

Meanwhile, barring any special circumstance, the construction of a new building should commence, such as the excavation of the site of the new building or the construction of a building, barring special circumstances. Thus, it cannot be said that the commencement of construction work or construction work for preparation of a new building, such as removal of existing buildings or facilities, etc., planting trees or trees, construction of a site of a new building, construction of a fence or an access road, does not constitute the commencement of construction work (see Supreme Court Decision 94Nu7058 delivered on December 2, 194).

2. Review of the facts acknowledged by the lower court and the evidence duly admitted reveals the following facts.

(1) On August 21, 2008, the Nonparty obtained a construction permit on one unit of Class I neighborhood living facilities (retail stores) on the ground (hereinafter “instant forest”) among the 18,352 square meters of forest land in Busan-gun, Busan-gun ( Address omitted) (hereinafter “the instant forest”).

(2) On September 17, 2009, the Defendant extended the period of commencement of construction work under the instant building permit until August 21, 2010. The Plaintiff, who acquired the owner’s status of the instant building permit, filed a report on the commencement of new construction work with the Defendant on August 13, 2010 and filed such report on August 16, 2010.

(3) On November 10, 2010, the Plaintiff entered into a contract with a wooden business entity to cut trees of this case on the early December 2, 2010. On December 8, 2010, the Plaintiff transported large volume of soil and sand from 250 cubic meters to the morning. On the same day, two public officials belonging to the office of the captain-Gun office in the P.M. employed in the P. on the same day to find the site at the construction site and to stop work orally without any specific reason. Accordingly, the Plaintiff failed to perform the excavation work of the original building site.

(4) On December 9, 2010, the following day, the Defendant notified the Plaintiff that a hearing should be held on December 22, 2010, along with a prior notice of disposition to revoke the construction permit, and revoked the construction permit of this case on the ground that the Plaintiff did not commence construction works within the start period on the above day, following the hearing on January 10, 201 (hereinafter “instant disposition”).

3. Examining these facts in accordance with the relevant statutes and legal principles as seen earlier, it is determined as follows.

(1) The Plaintiff did not commence construction work until August 21, 2010, the period of commencement extended even after the receipt of the commencement report. The Plaintiff’s construction work on the forest of this case, which started on December 2, 2010, constitutes the act of building a site for a new building, and does not constitute the act of building a site for a new building or construction of a new building. Thus, the Plaintiff cannot be deemed to have started construction of a new building even after the commencement period expires.

(2) However, even though the Defendant did not prohibit a person who obtained a building permit under the Building Act from commencing construction after the expiration of the construction period, and demanded an oral suspension of construction without presenting any grounds to the Plaintiff, it can be deemed as an unlawful order of construction suspension. Therefore, it is reasonable to deem that the Plaintiff’s commencement of construction work, such as excavation of building site, was due to the Defendant’s unlawful order of the suspension of construction.

Meanwhile, even considering the circumstances cited by the Defendant, it is difficult to view that there is a need for special public interest to revoke the instant building permit.

Therefore, the defendant cannot revoke the building permit of this case on the ground that the plaintiff did not commence the construction work within the commencement period. Thus, the disposition of this case is unlawful.

(3) The lower court erred by misapprehending the legal doctrine on the commencement of construction, thereby adversely affecting the conclusion that the instant disposition was unlawful, but the lower court did not err by misapprehending the legal doctrine on the commencement of construction.

4. Therefore, the appeal is 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 Ko Young-han (Presiding Justice)