[1] The purport of Article 7 (1) 3 (g) and (3) of the Enforcement Rule of the former Urban Planning Act, and whether the reduction of the time limit is allowed even after the buildings in development-restricted areas are destroyed by flood damage (affirmative with qualification)

[2] The case holding that the reduction of time limits under Article 7 (1) 3 (g) (ii) and (3) of the Enforcement Rule of the former Urban Planning Act is not allowed on the ground that a building damaged by sea was not used as a living ground in a development-restricted zone

[1] The provisions of Article 7 (1) 3 (g) and (3) of the former Enforcement Rule of the Urban Planning Act (amended by Ordinance of the Ministry of Construction and Transportation No. 133 of May 19, 198) stipulate exceptionally a construction act that is allowed within a development-restricted zone pursuant to delegation of the provisions of each subparagraph of Article 20 (1) and (2) of the former Enforcement Decree of the Urban Planning Act, in consideration of the fact that the relocation of a building is inevitable due to frequent waters and a building constructed on the land owned by another person prior to the designation of a development-restricted zone and that it is impossible to extend or rebuild the building without the landowner’s consent, the act going against the purpose of the designation is prohibited, but it is not possible to restrict the existing living base of the owner of the building within the development-restricted zone or neglect the loss of the building. The legislative purport of the above provision is to ensure the stable use of the existing building and to ensure the owner’s consent within the development-restricted zone, and thus, it is not reasonable to ensure the owner’s consent.

[2] The case holding that the reduction of time limits under Article 7 (1) 3 (g) (ii) and (3) of the Enforcement Rule of the former Urban Planning Act is not allowed on the ground that a building damaged by sea was not used as a living ground in a development-restricted zone

[1] Article 21 of the Urban Planning Act, Article 20 (1) and (2) of the Enforcement Decree of the former Urban Planning Act (amended by Presidential Decree No. 15799 of May 19, 198), Article 7 (1) 3 (g) and (3) of the Enforcement Rule of the former Urban Planning Act (amended by Ordinance No. 133 of May 19, 198), Article 21 of the Urban Planning Act / [2] Article 21 of the Urban Planning Act, Article 20 (1) and (2) of the former Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 15799 of May 19, 198), Article 7 (1) 3 (g) of the former Enforcement Rule of the Urban Planning Act (amended by Ordinance No. 133 of May 19, 198)

[1] Supreme Court Decision 91Nu8128 delivered on May 12, 1992 (Gong1992, 1885), Supreme Court Decision 95Nu10471 delivered on June 14, 1996 (Gong199Ha, 2217)

Plaintiff (Law Firm Sung-nam General Law Office, Attorneys Yellow-si et al., Counsel for the plaintiff-appellant)

Hanam Market

Seoul High Court Decision 96Gu24349 delivered on June 5, 1997

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the plaintiff's disposal of the house of this case, which was located within a development-restricted zone under the Urban Planning Act (hereinafter referred to as the "Act"), was made on December 29, 195 by considering the evidence adopted in its judgment, and the defendant rejected the application as of January 8, 1996 for the removal and reconstruction of the house of this case, which was destroyed as of December 29, 195. Since the house of this case was destroyed by a concentrated rain on September 1990, and thus, the house of this case cannot be reconstructed without the owner's consent, and thus, the disposition of this case which rejected the application for the removal and reconstruction of this case is unlawful, the plaintiff's disposal of the house of this case is hereby dismissed as of December 31, 1993, which was amended by the Ordinance of the Ministry of Construction and Transportation No. 541, Dec. 17, 1996; hereinafter the same shall apply).

2. In the provisions of Article 7(1)3(g) and (3) of the Enforcement Rule of the Act, one of the buildings that can be removed or reconstructed by the head of a Si/Gun in a development restriction zone due to the permission of the head of a Si/Gun, is a building which is inevitable due to frequent flood, and a building constructed on another’s land prior to the designation of a development restriction zone and which cannot be extended or reconstructed because the landowner’s consent was not obtained. Under the provisions of Article 21 of the Act and Article 20(1) of the Enforcement Decree of the Act, the acts going against the purpose of designation are prohibited, but it is exceptionally permitted to construct within a development restriction zone in accordance with the delegation of each subparagraph of Article 20(1) and (2) of the Enforcement Decree, taking into account the fact that the act in violation of the purpose of designation is prohibited, but it is not necessary to limit the existing life of the owner of the building in the development restriction zone or the loss of the building is not neglected. The institutional purport thereof is to guarantee

Therefore, even in cases where the above building was destroyed by flood flood, but it is impossible to reconstruct due to the landowner’s failure to obtain consent, so long as the need to stably secure the living basis of the owner of the building does not cease to exist, the removal and reconstruction pursuant to the above provisions of the Enforcement Rule shall be permitted during the process of verifying the existence, use, size, etc. of the building.

Therefore, the court below did not examine the existence and use of the instant building at the time of the application for relocation permit, on the premise that the existing building becomes the requisite for relocation permit, and did not examine whether the existence and use of the instant building at the time of the application for relocation permit, and determined that the instant disposition that immediately returned the Plaintiff’s application for relocation permit was lawful solely on the ground that the building was destroyed without

However, according to the reasoning of the judgment below and the record, the plaintiff could be aware that the building of this case was not used as a basis for the living of the plaintiff since the acquisition of the building of this case on September 30, 1988, by living in the building of this case or engaging in a living mainly in it for two years from the time of suffering from the plaintiff's assertion. Considering these circumstances, the plaintiff's application for removal and reconstruction of the building of this case cannot be deemed to be for the recovery of the ground for living, and therefore, the removal and reconstruction pursuant to the above provisions of the Enforcement Rule is not allowed.

Therefore, since the disposition of this case which rejected the plaintiff's application for permission for transfer of livestock is legitimate in this respect, the above judgment of the court below is just in its conclusion, and there is no violation of the rules of evidence and misapprehension of legal principles as stated in the grounds of appeal, which affected the conclusion of the judgment. The grounds of appeal are dismissed

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)