United States of “permanent buildings” under Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites

In full view of the contents and purport of the relevant provisions such as Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites and Articles 2 and 3 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882 of May 10, 193), it is reasonable to interpret that "permanent buildings" under Article 2 subparagraph 1 (b) of the same Act means legitimate buildings other than buildings which are required to be permitted or reported under the Building Act and other relevant Acts and subordinate statutes and which are not permitted or reported and which are subject to a completion inspection, and which have not undergone a completion inspection.

Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites, Article 2 and Article 3 of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882 of May 10, 1993)

Supreme Court Decision 93Nu20320 Delivered on May 13, 1994, 94Nu3506 Delivered on November 25, 1994

Plaintiff

The head of Seocho-gu Seoul Metropolitan Government

Seoul High Court Decision 93Gu24300 delivered on June 2, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Site (hereinafter "the Act") provides that "any building, the category of which under Article 5 of the Cadastral Act is not constructed as a permanent building" as one of the housing sites subject to the regulation under the same Act, and Article 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13882 of May 10, 1993; hereinafter "Enforcement Decree") provides that "any building or structure (excluding the building or structure for which approval was obtained for temporary use) shall not be deemed a building without permission or completion inspection under the Building Act and other related Acts and subordinate statutes." However, Article 2 subparagraph 1 (b) of the Enforcement Decree of the same Act provides that "any building, the category of which under Article 5 of the Cadastral Act is a building on which no permanent building is constructed," and Article 2 of the Enforcement Decree of the same Act provides that "any building, the construction of which is a building for which construction inspection was not conducted before its completion inspection is conducted."

However, in full view of the contents and purport of the relevant provisions such as Article 2 subparagraph 1 (b) of the Act and Articles 2 and 3 of the Enforcement Decree, it is reasonable to interpret that the permanent buildings under Article 2 subparagraph 1 (b) of the Act shall be permitted or reported under the Building Act or other relevant Acts and subordinate statutes, and shall be interpreted as legitimate only except for buildings which are not permitted or reported and buildings which have not undergone a completion inspection and which are subject to a completion inspection (see Supreme Court Decision 94Nu3506 delivered on Nov. 25, 1994).

Nevertheless, although the court below acknowledged that the factory building on the land of this case was not inspected of completion, it is clear that it constitutes a permanent building under Article 2 subparagraph 1 (b) of the Act and deemed that the part of the land of this case where the factory building was constructed does not constitute a site subject to regulation of the Act, and therefore, it is obvious that the court below committed the violation of law that affected the conclusion of the judgment by misunderstanding the legal principles of the relevant provisions, such as Article 2 subparagraph 1 (b) of the Act, Articles 2 and 3 of the Enforcement Decree, etc.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices.

Justices Kim Jong-sik (Presiding Justice)