Lot shopping Co., Ltd. (Law Firm Rate, Attorney Lee Do-soo, Counsel for the plaintiff-appellant)

[Defendant-Appellant] Jin-si market (Attorney Song Dong-dong et al., Counsel for defendant-appellant)

Gwangju District Court Decision 2009Guhap3774 Decided April 29, 2010

September 9, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's provisional injunction against the plaintiff on July 16, 2009 and the provisional injunction on the change of the use of an attached parking lot on July 28, 2009 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The key issue of the instant case is: (a) whether the Defendant’s disposition of denying an application for change of the purpose of use of a parking lot in the annexed parking lot at the Plaintiff’s bar bar (hereinafter “instant parking lot”) pursuant to Article 15(2) of the Enforcement Decree of the Parking Lot Ordinance (hereinafter “instant Ordinance”) is legitimate; (b) whether the instant parking lot is an annexed parking lot where change of the purpose of use under the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1)3 of the Enforcement Decree of the same Act is allowed; and (c) whether the Defendant’s application for permission to construct a station in the annexed parking lot at the Plaintiff’s bar bar bar is legitimate on the grounds that there is a need for significant public interest to protect the livelihood of the existing gas stations and to create a collective civil petition for the installation of a gas station, which is a dangerous facility.

The first instance court determined that Article 15(2) of the Ordinance of this case has no effect against the principle of statutory reservation on the ground that Article 15(2) of the Ordinance of this case limits the exercise of property rights on the change of the use of an attached parking lot by the owner of an attached parking lot under the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1) of the Enforcement Decree of the Parking Lot Act.

② As to the issues, the Defendant’s act of permitting the change of the purpose of use under Article 12(1)3 of the Enforcement Decree of the Parking Lot Act is a binding act in which administrative agencies are not allowed to discretion, and the Defendant determined that the disposition of refusing the change of use of the instant parking lot is unlawful on the grounds that it is reasonable to confirm the part exceeding the installation standards set forth in Article 6 and attached Table 1 of the Enforcement Decree of

③ As to the issue, the Defendant’s disposition of non-permission to construct the instant gas station does not constitute the grounds for restriction on construction permission prescribed by the relevant laws and regulations, and furthermore, the Plaintiff filed a civil petition against the Defendant by the operator of the instant gas station located in the summer-si, Gwangju, and Jeonnam-do Association of Korea Association, which belongs to the Defendant. However, it cannot be a legitimate basis in determining the building permission itself to oppose neighboring residents or existing business operators, and it is difficult to regard the business losses incurred due to the construction of the instant gas station operators as losses for public interest, and to restrict the registration of the petroleum retail business by the method of determining the separation distance between superstores and the gas station operators as additional requirements for registration of the petroleum retail business, and each government sent a public door requesting each Mayor/Do Governor to cooperate with the designation and improvement of additional requirements for registration of the gas station. In full view of the fact that the construction of the instant gas station constitutes an unlawful construction restriction on the construction of the instant water station based on the need for restriction on the use of the existing gas station and its necessity.

The first instance court’s determination is justifiable even if this Court considers the arguments and reasons supplemented by the Defendant and examines new evidence submitted by the Defendant.

Therefore, the reasoning of the judgment of this court is as follows: (a) evidence submitted by the defendant in this court, which is insufficient to recognize that each of the dispositions of this case is legitimate because the ordinances of this case were legitimate grounds for delegation; (b) the written evidence Nos. 5 and No. 11 (including each number) are not additionally rejected; and (c) it is identical to the written reasoning of the judgment of the court of first instance; and (d) it is acceptable in accordance with Article 8(2) of the Administrative Litigation

Therefore, the judgment of the court of first instance, which received the plaintiff's request, is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Donsung (Presiding Judge) Notarial decoration