[Judgment of the court below]

Asan Market (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

November 19, 2009

Daejeon District Court Decision 2009Guhap1046 Decided August 19, 2009

1. The plaintiff's primary claim added in the trial is dismissed.

2. Revocation of a judgment of the first instance; and

3. On July 31, 2007, the defendant revoked the acceptance of the report on the change of construction participants against the non-party 1 corporation.

4. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

On July 31, 2007, the defendant confirmed that the disposition to accept the report on the change of construction participants against the non-party 1 corporation is null and void. Preliminaryly, the judgment identical with the judgment of the court of first instance (the plaintiff sought only the judgment in the same manner as the judgment of the court of first instance, but made the preliminary claim at the trial, and added the main claim).

2. Purport of appeal

Order Nos. 2 and 3

1. Details of the disposition;

A. On July 26, 1990, Nonparty 2 obtained a construction permit for the construction of steel-frame reinforced concrete underground floors and 20 stories above ground on the ground (hereinafter “each of the instant lands”) and seven parcels (hereinafter “each of the instant lands”).

B. Nonparty 2, upon filing a report on the commencement of construction on May 25, 1990, continued the construction, but was suspended after the construction was conducted from May 25, 199 to the first underground floor.

C. With respect to each of the instant lands and the instant buildings under construction (hereinafter “instant buildings”), the procedure for the auction of real estate under the name of Daejeon District Court (Seoul District Court Decision 2004Ma19226) was commenced. In the above auction procedure, the non-party 1 corporation received the decision of permission for the sale from the highest bidder on December 27, 2005, and paid the proceeds of the sale on February 14, 2006, and completed the registration of ownership transfer on each of the instant lands on December 18, 2006.

D. On March 20, 2007, Nonparty 1 Co., Ltd. issued a certificate of completion of construction report to Nonparty 1 Co., Ltd. as of July 31, 2007 (hereinafter “instant disposition”). On December 27, 2005, together with the written decision on permission for sale (hereinafter “instant decision on permission for sale”) and a copy of the register of each of the instant land. The Defendant issued a certificate of completion of construction report to Nonparty 1 Co., Ltd. (hereinafter “instant disposition”).

E. Nonparty 2 died on March 6, 2007. On December 2, 1992, the Plaintiff and Nonparty 2, who were the wife, were married with consultation on December 2, 1992, and had Nonparty 3, 4, 5, 6, and 7, who were the inheritor, but Nonparty 7 became the sole heir upon Nonparty 7’s renunciation of inheritance around June 2007. However, Nonparty 7 died on April 6, 2008, and the Plaintiff is the sole heir (mother) of Nonparty 7.

F. On October 10, 2008, the Plaintiff filed an administrative appeal with the Chungcheong-do Administrative Appeals Commission. On November 26, 2008, the Chungcheongnam-do Administrative Appeals Commission dismissed the said administrative appeal on the ground that it is unlawful by filing an administrative appeal after the lapse of 180 days from the date of disposition on November 26, 2008. The Plaintiff filed the instant appeal within 90 days from the date of receiving the original copy of the said written adjudication.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1 through 4, Gap evidence 5-1, 2, Eul evidence 2, 8, 9, and 10, and the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Whether standing to sue exists

The defendant asserts that the lawsuit of this case is unlawful because the plaintiff is not the non-party 2's heir, and there is no legal interest to seek revocation of the disposition of this case, but the lawsuit of this case is filed by the non-party 2. However, as seen earlier, the plaintiff inherited the non-party 7, who was the only inheritor of the non-party

B. Whether the filing period has expired

The defendant asserts that the lawsuit in this case is unlawful as it was instituted after the period for filing the lawsuit in this case has expired. Since the third party, who is not the other party to the administrative disposition, is in a position in which the disposition is not immediately known, a request for a trial can be filed on the ground that there is a justifiable reason under the proviso of Article 18 (3) of the Administrative Appeals Act, unless there is a special reason, even after 180 days have passed from the date of the disposition: Provided, That if there are circumstances that the third party is able to file a request for a trial within the period for a trial under Article 18 (1) of the same Act, such as where he knows or could easily know that an administrative disposition was taken or that there is an administrative disposition, it shall be filed within 90 days from the time of the request, and in this case, it shall not be a problem that the third party has a justifiable reason for not complying with the period for request (see Supreme Court Decision 20

In the case of this case, there is no evidence to prove that the plaintiff did not file an appeal within 90 days from the time the plaintiff knew of the disposition in this case, and the plaintiff seems to have justifiable grounds for not filing an administrative appeal within 180 days from the date of the disposition as a third party who is not the other party to the disposition in this case. Thus, the plaintiff's claim for administrative appeal filed on October 10, 2008 is legitimate. Therefore, the lawsuit in this case filed by the plaintiff within 90 days from the date of receiving the original copy of the written adjudication in this case is legitimate, and

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant decision on permission for sale does not constitute “documents evidencing alteration of rights” under Article 11(1) of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Construction and Transportation No. 594, Dec. 13, 2007; hereinafter the same), but the Defendant’s disposition accepting the report on alteration of the title of construction participants of the non-party 1 corporation is unlawful on the premise that such act constitutes “documents evidencing alteration of rights.”

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Whether the written decision on permission to sell the instant case constitutes “documents evidencing alteration of the legal relationship”

Article 10(1) of the former Building Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same) and the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 21098, Oct. 29, 2008; hereinafter the same) provide that where a project owner is changed, the project owner shall be reported to the Mayor, etc. (Article 10(1) of the former Building Act; Article 12(1)3 of the former Enforcement Decree of the Building Act). Article 11(1) of the former Enforcement Rule of the Building Act provides that where a building under construction or large-scale repair is acquired from a person who has obtained permission or made a report on construction or large-scale repair, the transferee, etc. shall submit to the permitting authority a report on the change of the name or a document evidencing the change of legal relationship with the former project owner within seven days from the date of such change. Thus, whether the instant decision on permission for sale constitutes “documents evidencing the change of rights” as stipulated in the above provision.

According to the Civil Execution Act, when it is deemed that an objection to the permission for sale by an interested person is groundless, and there is no reason to refuse the sale ex officio, the decision of the court of execution that permits the highest bidder to sell the goods, and the buyer acquires the right which is the object of sale only when all the proceeds are paid within the payment period set by the court of execution after the decision of permission for sale became final and conclusive, so the decision of permission for sale alone cannot acquire not only the succession to the title of the building permit for the buildings subject to sale, but also the right creation subject to the sale. Accordingly, the decision of permission for sale in this case does not fall under the documents proving the alteration of the relation of rights as stipulated in Article 11(1)

(4) In addition to the written decision on permission for sale of the building of this case, it is interpreted that the alteration of rights due to the sale of the building of this case can be proved by combining the original copy of the register of the building of this case which was sold en bloc. However, the construction permission is an administrative disposition that the competent administrative agency only recovers construction activities without permission if it conforms to the relevant Acts and subordinate statutes, and it is not directly related to the acquisition and loss of substantive rights on the building and the title of the permission, and it is not necessary that the owner of the building in this case should coincide with the above construction permission (Article 2 (1) 12 of the former Building Act is defined as the owner of the building who ordered construction of the building of this case or appointed an on-site manager for the construction work of this case, and the transferee of the building of this case who is under construction shall be entitled to change the name of the owner of the building of this case to the new construction permission of this case without consent to the change of the ownership of the new owner under the relevant Acts and subordinate statutes (see Article 2 (1) 3).5).

(2) Whether the instant disposition constitutes grounds for invalidation as a matter of course

In order for an administrative disposition to become void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is a serious violation of the important part of the law and objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective as well as reasonable consideration on the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du14363, Jun. 30, 2006). In this case, in light of the above legal principles, it is difficult to view the above illegal cause as serious and objective as the degree of the defect is deemed to be null and void a matter of course. Thus, it is not a reason for revocation, but merely a reason for revocation.

4. Conclusion

Therefore, the plaintiff's main claim added in the trial room is dismissed as it is without merit, and the conjunctive claim is accepted as reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked and it is so decided as per Disposition.

Judges Cho Soo-soo (Presiding Judge) Maximum index