(영문) 춘천지방법원 2019.5.14. 선고 2019구합50098 판결

A. B Co., Ltd. (hereinafter referred to as “B”) obtained approval for the use of land from the Gangwon-gun C Forest Land 9,150m (hereinafter referred to as “the parcel number of the pertinent land”) and from the educational foundation E-university (hereinafter referred to as “E University”) which is the owner of D land, etc. on December 19, 2003, filed an application with the Defendant for a construction permit to construct a Class I neighborhood facility (general bath) on the ground of D land.

B. On December 29, 2003, the Defendant issued a building permit with the condition of “the approval for use of a building shall be subject to the provisions of Article 2 of the Building Act and Article 3 of the Enforcement Decree of the same Act after the partition of the D land.”

C. Around November 2005, B newly constructed a building with the second floor above the ground and the first floor below the ground level on D land on the cadastral map at the time of the time (hereinafter “instant building”). The Plaintiff succeeded to the owner’s status of the instant building from B on November 25, 2005, and completed the construction report.

D. From December 1, 2005 to November 16, 2017, the Plaintiff obtained approval for temporary use of the instant building from the Defendant and operated a bath at this point.

E. On August 3, 2006, the boundary was corrected around August 3, 2006, and accordingly, the instant building was located on the ground part of approximately 3,400 meters of land C in the cadastral map.

F. On August 25, 2011, E University filed a lawsuit against the Plaintiff for the removal of the instant building and delivery of the site, the Youngcheon District Court rendered a judgment that “the Plaintiff removed the instant building to the E University and delivered land C” (201Gahap377). This judgment became final and conclusive (Seoul High Court Decision 2011Da141694 Decided January 4, 2012; Supreme Court Decision 2012Da10621 Decided August 17, 2012).

G. On March 27, 2018, the Plaintiff submitted an application for approval of the use of a building to the Defendant. However, the Defendant notified two times twice that “the time to complete the division of land in the site of the relevant building, which is the first condition for permission, is the time to complete the division of land,” and returned the Plaintiff’s application on July 2, 2018 (hereinafter “instant disposition”).

F. The Plaintiff filed an administrative appeal against the instant disposition on July 17, 2018, but the Gangwon-do Adjudication Committee dismissed the Plaintiff’s claim on October 15, 2018, and the Plaintiff’s claim.

【Fact-finding without a dispute over the basis of recognition】 Each entry in Gap evidence 1 through 7, Eul evidence 1, 2, 4, 6, 11 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

2. The plaintiff's assertion

(a) Grounds for disposition with respect to Article 22 (2) 1 and 2 of the Building Act;

1) The Defendant added the grounds for non-performance of land division to the grounds for disposition under Article 22(2)1 and 2 of the Building Act, but the addition of such grounds for disposition is not permissible.

2) The reason why land division has not been performed is deemed to be a violation of Article 22(2) of the Building Act, which goes beyond the scope to which each subparagraph of the same paragraph would govern, and is inconsistent with the Defendant’s approval for temporary use of the instant building against the Plaintiff.

B. The grounds for the disposition regarding the violation of the terms and conditions of permission are unlawful as it deviates from and abused discretion for the following reasons.

1) Since the instant building is specified as on the land after the maintenance of cadastral inconsistency, the administrative difficulties in construction were either nonexistent or decreased due to complicated construction activities. Even in the absence of landowner’s consent or delegation, the competent cadastral authority may register the instant building in the cadastral record ex officio pursuant to the relevant laws and regulations. Therefore, even if the Defendant approved the use of the instant building, the public interest infringed is not serious.

2) At the time of the construction permission for the instant building, the Defendant promised to improve the cadastral non-conformity until the Plaintiff completed the building, but the cadastral improvement was not completed until the completion of the building. In the process, the enforcement division of the E University was replaced, and the E University withdrawn the intent to use the land that it consented to the Plaintiff and did not cooperate in the submission of the documents related to the land division application. The failure of the fulfillment of the construction permission conditions is due to the Defendant’s act against the trust of the E University, a landowner, and the cause attributable to the Plaintiff is either unreasonable or minor.

3) The Plaintiff invested a lot of property and made efforts to construct the instant building. The Plaintiff’s interest infringed on the instant disposition is very serious, as well as the impact of the removal of the building on the local economy and the social cost wasted.

3. The indication of the relevant regulations shall be as shown in the attached Form;

4. Determination

A. According to Article 2 subparag. 1 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) and Article 3(2) subparag. 5 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18951 of Jul. 18, 2005), a construction administrative agency may grant a building permit on the condition that part of one or more lots should be designated as one site and complete land division procedures until approval of use is applied for after completion of construction work (hereinafter “land division conditional building permit”).

As such, the purport of granting conditional permission for land division, instead of having to complete procedures for land division prior to filing an application for a building permit, is to allow the completion of procedures for land division until an application for approval for use is filed after completing construction works first in accordance with the building permit for the convenience of an applicant for building permit (see Supreme Court Decision 2015Du47737, Jun. 28, 2018).

Article 22 of the Building Act provides that a building owner shall file an application for approval for use to use the building when the building owner obtained a building permit. In light of the structure of the foregoing provision and the meaning of conditional building permit for land division, the building administrative agency may reject the application for approval for use for the reason that the conditions attached to the building permit have not been fulfilled.

B. In full view of the following facts and circumstances revealed by the facts acknowledged earlier, the aforementioned evidence, Eul evidence Nos. 3, 5, 7 through 10, and 12, and the purport of the entire pleadings, it cannot be deemed that the Defendant’s rejection of the Plaintiff’s application for approval of use on the ground that the land division condition stipulated in the building permit was not fulfilled. The Plaintiff’s assertion on this part is without merit.

1) The lease contract between B and E University on the use of land was terminated on June 2, 2004, prior to the completion of the instant building, by the notification of termination of the E University due to the violation of B’s lease agreement. A final and conclusive judgment ordering the Plaintiff to remove the instant building and deliver the relevant site, and the E University filed several complaints seeking administrative dispositions against the Defendant against the Plaintiff.

2) The Defendant already granted a provisional use approval for the instant building for about 12 years on six occasions. The Defendant extended the period of the provisional use approval to the Plaintiff even during the litigation period between the Plaintiff and E University. The Defendant urged the Plaintiff to implement land division, which is a condition of permission, and to apply for the approval of use, over several occasions at the time the provisional use approval was granted. The provisional use approval for the instant building expired on November 16, 2017.

3) The Plaintiff did not comply with the terms and conditions of land division until the date of the instant disposition, which was about 15 years from the date of the construction permission, and more than half years after the last approval period for provisional use, and did not assert any possibility of complying with the said conditions in the near future. In light of the various circumstances revealed in the arguments, such as the final and conclusive judgment between the Plaintiff and E University, the possibility of its operation seems to be rare.

4) On December 2016, the Board of Audit and Inspection held that the approval of provisional use for the instant building was unfairly carried out by the Defendant’s public officials and that preferential treatment was given to the Plaintiff, and notified the Defendant that the approval of provisional use for the instant building was revoked or withdrawn.

5) Since the site of the instant building is located at 3,400 meters, which is part of C’s land (9,150), it is still necessary to divide the site of the instant building according to Article 2(1)1 of the Building Act and Article 3(2)5 of the Enforcement Decree of the Building Act. It cannot be said that the public interest of the above provisions purporting to harmonize the scope of one parcel on the land of the building with that of the building.

Meanwhile, in principle, the division of land shall be based on the landowner’s application (Article 79(1) of the Act on the Establishment, Management, etc. of Spatial Data). In exceptional cases, even if the competent cadastral authority may ex officio investigate and survey cadastral records and divide the land without application, the conditional permission for the division of land for which the owner of the building site requests the Plaintiff, who is the building owner, to implement the procedure of land division in accordance with the consent or delegation of the E University, the building owner, in a different situation, is sufficiently justifiable, and the public interest is not smaller.

6) As seen earlier, the lease contract between B and E University was terminated on June 2, 2004. A cadastral record around the instant building was arranged around August 2006, and more than ten years thereafter elapsed, and the Plaintiff lost in the lawsuit with the E University. The failure to comply with the terms and conditions of land division is attributable to the cause attributable to the Defendant or E University, and the Plaintiff’s assertion that there is no or minor cause attributable to the Plaintiff cannot be accepted.

7) The Plaintiff did not have a legitimate title to the site of the instant building from November 25, 2005 to the disposal date of the instant building from November 25, 2005, upon acquiring the status of the owner of the instant building. (1) The Plaintiff obtained a provisional approval for use for a period of not less than 12 years without fulfilling the conditions for the approval for use.

C. Since the Defendant, from the administrative appeal to the instant case, failed to perform land division, which is the condition of the building permit, the Defendant may return an application for approval of use pursuant to Article 22(2)1 and 2 of the Building Act. This is the same as the “non-performance of the condition of land division, which is the reason for the instant disposition,” and thus, the addition of the reason for such disposition is allowed.

According to Article 22 (2) 1 and 2 of the Building Act, upon receipt of an application for approval for use by a permitting authority, an inspection shall be conducted as to whether a building for which an application for approval for use has been filed is constructed in accordance with the design documents approved or reported under this Act, supervision completion report, construction completion book, etc., and documents and books have been prepared appropriately, and a written approval for use shall be issued to a building that has passed the inspection. If the conditions for approval for use stipulated in the building permit are not fulfilled, approval for use cannot be granted, and it is reasonable to view that an application for approval for use can be rejected pursuant to Article 22 (2) of the Building Act, depending on the "whether the building for which an application for approval for use has been filed is constructed

Therefore, this part of the grounds for the disposition is legitimate. The plaintiff's assertion on this part is without merit.

3. Conclusion

The plaintiff's claim is dismissed.

Judges

Judges of the presiding judge;

Judges Does

Judges Laos

Note tin

1) The Plaintiff acquired not only the position of the owner after the Plaintiff lost the right to use the site of the instant building, but also was appointed as the director of August 27, 2003 and the representative director of January 18, 2005.