Whether "Road" under Article 4 (3) of the Regulations on Criteria for Permission for Change, etc. of Land Quality and Quality refers to a road under the Building Act (affirmative)

The provisions of Article 4 (1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 4 (3) of the Regulations on the Criteria, etc. for Permission for Change, etc. of Form and Quality of Land shall apply to a building for the purpose of constructing a building. However, Article 4 (3) of the above Rules provides that a "road" shall not be permitted unless there is a "road" in the applied area. In this regard, "road" means a "road under the Building Act, which is the Act for the purpose of defining the Standards for Change of Form and Quality of Land for the Construction of Building and the Use of Building, in light of Article 4 (3) of the above Rules as to permission for change of the form and quality of land for the purpose of constructing a building." Thus, if there is an application for change of form and quality for the purpose of constructing a building, "road" shall not be permitted unless there is a "road under the Building Act" in the applied area.

Article 4(1)1 and (7) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act, Article 4(1)1 and (3) of the former Regulations on the Standards, etc. for Permission for Change, etc. of Form and Quality of Land (amended by Ordinance of the Ministry of Construction and Transportation No. 143 of Jun. 5, 1998), Article 2 subparag. 11 and 5(1) of the former Building Act (amended by Act No. 5895 of Feb. 8, 199)

High Class (Law Firm Law, Attorneys Jin-young et al., Counsel for the defendant-appellant)

The head of Gyeyang-gu Incheon Metropolitan City

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision that the defendant's disposition of changing the form and quality of land against the plaintiff on November 12, 1997 is revoked.

1. Details of the instant disposition

In full view of the contents of evidence Nos. 1-1, 2, 2-2, 3-1, 2, 3-3, 4-1, 1-2, and 1-2 of evidence Nos. 1-2, the following facts may be acknowledged, and no other counter-proof exists:

A. On October 10, 1997, the Plaintiff filed an application for permission to change the form and quality of land for the construction of electric source housing with respect to the Plaintiff’s 188 square meters prior to 776, Incheon Gyeyang-dong, Incheon, which is owned by the Plaintiff, 778 square meters prior to the same 778 square meters, 621 square meters prior to the same 779, and 780-22,51 square meters prior to the same 780-2, and total 4,616 square meters (hereinafter “instant land”).

B. On October 25 of the same year, the Defendant rendered a disposition against the Plaintiff on October 25 of the same year by applying Article 5-2 of the Enforcement Decree of the Urban Planning Act and Article 4 of the Rules on the Criteria for Permission for Change, etc. of Land Form and Quality of Land (hereinafter referred to as the “Rules”) to return the application for permission for change of land form and quality, on the ground that the Plaintiff’s use as the access road to the land of this case (hereinafter referred to as the “Access road to the land of this case”) is a river site and must be maintained and managed as a river, and it is not recognized as a road for change of land form and quality.

C. On November 4 of the same year, the Plaintiff maintained and managed the road portion within the Incheon Gyeyang-dong 885-2 river, which is an access road to the land of this case, thoroughly and preserve and manage the surrounding environment, and preserve and manage the urban landscape more thoroughly than the transfer of the urban landscape by taking responsibility and purification of the neighboring environment, and supplement the changes in the form and quality of land for the purpose of constructing the building as above to the land of this case on November 4 of the same year.

D. On November 12 of the same year, the Defendant rendered a disposition to return to the Plaintiff the application for permission to change the form and quality of land again (hereinafter “instant disposition”) on the same ground as the first disposition and the provisions of the law.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition grounds and related Acts and subordinate statutes. The plaintiff asserted that the access road to the land of this case is legitimate: ① although the access road to the land of this case is a river on the land category, it is already damaged by natural landscape such as currently being used as a garbage theater and cement yard, and then open a fume with a diameter of 1 meter in diameter compared to the horse, which is actually used as a free passage of neighboring residents, and also constitutes "road" under Article 4 (3) of the Rules and Article 2 (11) of the Building Act, and even if it is not a domestic house, the criteria of the Building Act should be mitigated pursuant to Article 5 of the Building Act. ② Since the land of this case is constructed around the land of this case and managed by the neighboring National Tax Service, the land of this case has already been damaged by the natural landscape, it should be more clean than before the construction of the land of this case, and it is necessary to use the land of this case and to return the land use application plan of this case more specific and reasonable reasons.

B. Relevant statutes

Article 4 (1) of the Urban Planning Act provides that a person who intends to commit an act falling under any of the following subparagraphs shall obtain permission from the head of a Si/Gun. Article 4 (1) of the same Act provides that "the alteration of the form and quality of land" in subparagraph 1 of the same Article provides that "the procedures and standards for permission under the provisions of paragraph (1) of the same Article and other necessary matters shall be determined by the Ordinance of the Ministry of Construction and Transportation. In granting permission under the provisions of Article 4 (1) of the same Act, the head of a Si/Gun shall not grant permission if it is apprehended to interfere with the reasonable use of the land or the urban planning project and fails to meet the standards as prescribed by the Ordinance of the Ministry of Construction and Transportation. Article 4 (1) of the Enforcement Decree of the same Act provides that the head of a Si/Gun shall not grant permission under the provisions of Article 4 (1) of the Act in an area falling under any of the following subparagraphs, and Article 4 (1) of the same Act provides that the head of a Si/Gun shall not grant permission to change the form and quality of a road:

Meanwhile, Article 2 subparagraph 11 of the Building Act provides that the term "road" means a road with a width of at least four meters for pedestrian and motor vehicle traffic (in the case of a road with a structure and width prescribed by the Presidential Decree where passage through a motor vehicle is impossible on the topographical condition and a dead-end road, a road with a structure and width), which falls under any of the following items, and (a) provides a road for which a public notice of new construction or alteration has been given pursuant to the Urban Planning Act, the Road Act, the Private Road Act, or other relevant Acts and subordinate statutes, and (b) provides a road for which a head of a Si/Gun/Gu designates its location upon a construction permit or report under subparagraph (b) thereof, and Article 5 (1) of the same Act provides that the owner, designer, construction executor, or construction supervisor may request the head of a Si/Gun/Gu to relax the standards of this Act in the course of performing his/her duties with respect

(c) Markets:

Article 4 (1) of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, and Article 4 (3) of the Enforcement Decree of the same Act shall apply to an application for change of the form and quality of a building for the purpose of constructing a building. However, Article 4 (3) of the Rules provides that a "road" shall not be permitted to change the form and quality of a building unless a "road" is installed in the application area. In light of the provision on permission to change the form and quality of land for the purpose of constructing a building under Article 4 (3) of the Rules, it is reasonable to see that a "road" means a "road under the Building Act (Article 1 of the Building Act), which is the Act for the purpose of stipulating the standards for the land, structure and equipment of a building and the use of a building, etc., unless a "road under the Building Act is installed in the application area."

However, comprehensively taking account of the above evidence and the statements in Gap evidence Nos. 8, 9, 10, 11, 5, and 6 and the whole purport of the argument as a result of the on-site inspection of this court, the land of this case is currently being used as a natural green area and scenic zone in urban planning, and is currently being used as a construction material storage zone such as sand and cement. The plaintiff entered into a sales contract with the owner of the land of this case where the permission to change the form and quality of the land of this case was granted to the non-party Park Jong-gu et al. who intends to construct a electric source house on the ground and then sold the land to the plaintiff on Oct. 10, 197, and filed an application for change of form and quality for the purpose of constructing a electric source house on the land of this case with the defendant on Oct. 10, 1997. However, the access road to the land of this case is a river site of Gyeyang-dong, Incheon Metropolitan City, which leads to the passage of the land of this case.

For this reason, even though the plaintiff's application for changing the form and quality of the land of this case is for the purpose of constructing a building, the road as stipulated in Article 2 subparagraph 11 of the Building Act is not constructed, and Article 5 of the Building Act, which provides for the mitigation of the application of the standard under the Building Act, applies only to the performance of the construction work for the land or building whose land category is already a site, and it does not apply to the case where the plaintiff intends to change the form and quality of the land to the former site under the Urban Planning Act, as in this case, and therefore, it should be rejected because it does not meet the requirements under Article 4 (3) of the Rules.

Therefore, the disposition of this case, which the defendant rejected the plaintiff's application for change of form and quality of land without examining the remaining grounds for rejection in the disposition of this case, is lawful as it is in accordance with the relevant laws and regulations.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation on the premise that the disposition of this case is unlawful is dismissed as there is no ground, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

Judges Clerks (Presiding Judge) Doctrine