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(영문) 인천지방법원 2016.01.28 2015구합985
건축물용도변경(증축)반려처분 취소
Text

1. All of the plaintiffs' claims are dismissed.

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

Reasons

1. Details of the disposition;

A. On May 12, 2015, the Plaintiffs filed an application for permission to change the use of a building (hereinafter “application for change of use of this case”) to use a building of 930.08 square meters for funeral hall by extending the building of 922.73 square meters of a Class II neighborhood living facility, detached house, warehouse facility, and Adong building for the purpose of 7.35 square meters among buildings on the ground of Incheon reinforced-gun E (hereinafter “application for change of use”).

B. On May 19, 2015, the Defendant rejected the instant application for change of the purpose of use on the ground that “satise Gun has sufficient security capability even with the existing funeral hall, and it undermines neighboring residents’ opposition and residential environment.”

(hereinafter “Disposition in this case”). / [Grounds for recognition] without dispute, entry of Gap evidence Nos. 1 and 2, and purport of the whole pleadings

2. On June 12, 2015, the Defendant filed an administrative appeal against the instant disposition with the Plaintiffs, and filed the instant lawsuit without waiting for the decision of administrative appeal. As such, the instant lawsuit is deemed unlawful. However, the instant lawsuit is asserted as unlawful. However, even if a petition for administrative appeal is not required pursuant to the proviso to Article 18(1) of the Administrative Litigation Act, or a petition for administrative appeal is filed, the Defendant may file a lawsuit if the lawsuit is filed within the period of appeal without filing the judgment. Thus, the Defendant’s main defense is without merit.

3. Whether the instant disposition is lawful

A. The Plaintiffs’ assertion 1) The alteration of use under Article 19 of the Building Act constitutes a binding act that requires permission if it satisfies the requirements prescribed by the relevant laws and regulations, and thus, the instant disposition that the Defendant rejected the application for the alteration of use of the instant case due to the reasons not prescribed by the relevant laws and regulations is unlawful. 2) Even if the permission for the application for the alteration of use of the instant case is discretionary act, it would prejudice the surrounding environment by the construction of the funeral hall (hereinafter “instant funeral hall”).

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