(영문) 제주지방법원 2021.6.8. 선고 2020구합545 판결

1. The disposition that the Defendant rendered against the Plaintiff on August 27, 2020 that the return of the report on the change of construction participants shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

○ On May 11, 2020, the Plaintiff obtained a decision of permission for sale as the highest bidder with respect to the building that was under construction at the Seopopo City 00 (hereinafter collectively referred to as the “instant land”) and on its ground (hereinafter referred to as the “instant building”) at the instant auction procedure on May 11, 2020, and paid the sales price, and completed the registration of ownership transfer in the Plaintiff’s name as to the instant land on June 10, 2020.

On October 31, 2016, B, and C (hereinafter “B, etc.”) had obtained a building permit to construct the instant building on the ground of the instant land from the Defendant, and paid KRW 45,302,40,00 of the farmland preservation charges imposed upon the Plaintiff as the said building permit deemed permission to divert farmland was granted.

On July 1, 2020, the Plaintiff changed the owner of the instant building from B, etc. to the Plaintiff.

On August 27, 2020, the Defendant demanded the Plaintiff to submit documents to prove the transfer and acquisition of the farmland preservation charges already paid to the Plaintiff. On the ground that the Plaintiff did not submit the documents, the Defendant issued a disposition on August 27, 2020 as to the Plaintiff’s order (hereinafter “instant disposition”).

[Based on recognition] Evidence A 1 to 10 (including each number for those with additional numbers), Eul's evidence No. 3, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Determination

A. Relevant legal principles

A building permit is deemed to have the physical nature, and the effect of a building permit is transferred along with the alteration of the right to a building subject to permission, and is not transferred by a separate approval. Thus, in an auction procedure under the Civil Execution Act, where a purchaser submits a written decision on permission for sale and a document evidencing the alteration of the right relationship under Article 11(1) of the Enforcement Rule of the Building Act (see, e.g., Supreme Court Decision 2010Du2296, May 13, 2010).

Article 11 of the Enforcement Rule of the Building Act does not merely aim at the convenience of administrative agencies, but rather, it is reasonable to deem that the transferee of a building subject to permission recognizes the right under public law to report the change of name to the transferee of the building, and that the administrative agencies have the duty to accept the report. As such, if the transferee of a building subject to permission reports the change of name to the administrative agencies, such as the head of the Si/Gun, etc. lawfully, by satisfying the formal requirements prescribed in the former Enforcement Rule of the Building Act, the administrative agencies may not refuse to accept the report on the ground of the substantive reason (see Supreme Court Decision 2014Du37658, Oct. 15, 2014).

“Documents evidencing the change of a right relationship” under Article 11(1) of the Enforcement Rule of the Building Act, which shall be attached to a report on the change of construction participants, means documents evidencing the change of a right relationship to a building subject to permission, rather than a building site to be constructed, and if such documents are attached thereto, such documents satisfy the formal requirements for the report on the change of the name of the building owner prescribed in the Enforcement Rule of the Building Act. The permitting authority shall not request the transferee to submit documents evidencing his/her right to ownership or use the site that is not included in the documents prescribed in Article 11(1) of the Enforcement Rule of the Building Act, nor shall the transferee refuse to accept the report on the substantial grounds that there is no such right (see Supreme Court Decision 2013Du147

B. Whether the instant disposition is lawful

In light of the above legal principles, when the defendant accepts the plaintiff's report on the change of construction participants, there is no legal basis to request the plaintiff to submit documents concerning the right to farmland preservation charges in addition to "documents proving the change of the legal relationship concerning the building".

Therefore, the disposition of this case is unlawful because there is no ground for the disposition.

C. As to the defendant's argument

The defendant asserts that even if the plaintiff acquired the ownership of the land and building of this case through the auction procedure under the Civil Execution Act, the public right of the land and building of this case can not be comprehensively transferred to the plaintiff or that the right of the farmland preservation charges is transferred to the plaintiff as a matter of course to the plaintiff, even if the plaintiff acquired the ownership of the land of this case through the auction procedure under the Civil Execution Act, if the successful bidder intends to continuously promote the relevant project, the new permission for farmland diversion or the acceptance of the report (the previous permission for farmland preservation charges are required after confirming the payment of the farmland preservation charges by the applicant for new permission for farmland diversion) is required.

However, it should be discussed separately as follows: "When a person who has obtained a building permit obtains a building under construction in the auction procedure under the Civil Execution Act when the permission for farmland diversion is deemed granted and the farmland preservation charges are paid, the buyer has acquired the building under construction (the effect of the building permit is transferred to the buyer, and the change of the name of the permission for farmland diversion is deemed to have been permitted under Articles 16 (3) and 11 (5) of the Building Act when the buyer has reported the change to the owner in his/her name), the farmland preservation charges already paid shall be refunded to the person who has paid the previous farmland preservation charges, and the buyer shall be deemed to have imposed new farmland preservation charges, or the farmland preservation charges already paid for the buyer shall not be considered to have been paid for the buyer."

Therefore, the defendant's above assertion is without merit.2)

4. Conclusion

The plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges

Judges Kim Jong-tae

Judges' Coordination Interest

Judges Kim So-young

Note tin

1) In detail, B, C, and D paid farmland preservation charges, and thereafter D transferred the right to the said farmland preservation charges to B, and C (written evidence No. 3). Since this process is irrelevant to the conclusion of the instant case, B, and C were paid for convenience, as above.

2) Meanwhile, as to this issue, the consistent position of the court that "if a purchaser acquires a building under construction and reports on the change of a construction participant in an auction procedure under the Civil Execution Act, the farmland preservation charges paid shall be deemed to have been paid for the purchaser" is the consistent position of the court (Seoul Administrative Court Decision 2017Guhap90292, Seoul High Court Decision 2017Guhap90292, Supreme Court Decision 2015Guhap50539, Supreme Court Decision 2016Guhap51324, Incheon District Court Decision 2016Guhap4208, Suwon District Court Decision 2014Guhap4208, Suwon District Court Decision 2013Guhap2012 [Dismissal of the appeal by the Seoul High Court)].