(a) Purport of Article 5 of the Addenda to the Enforcement Decree of the Parking Lot Act;

(b) Criteria for determining whether a new annexed parking lot is obligated to establish a new annexed parking lot, where the purpose of use of the whole or part of the facilities is to be changed;

A. Article 5 of the Addenda to the Enforcement Decree of the Parking Lot Act provides that if a person wishing to change the use of an existing structure at the time of enforcement requires the installation of an annexed parking lot based on the use of the existing structure after changing the use under Article 6(1) and [Attachment 1] subparagraph 4 of the Enforcement Decree of the same Act, the installation standards for annexed parking lots shall apply only to the changed part of the existing structure in order to reduce the burden of imposing heavy liability on the owner of the existing structure, but it does not impose a separate obligation to establish annexed parking lots in cases where the installation standards for annexed parking lots are equal or lower to the changed part of the existing structure.

B. In light of the provisions of Article 5 and subparagraph 3 of the Addenda of the Enforcement Decree of the Parking Lot Act, in a case where the use of the facility is not less than 2, it shall be determined whether the new annexed parking lot is erased due to the change of use due to the change of use in each part of the facility.

Article 19 (1) and (3) of the Parking Lot Act, Article 6 (1) of the Enforcement Decree of the Parking Lot Act, Article 5 and attached Table 1 of the Addenda

Plaintiff

Head of Busan Metropolitan Government

Busan High Court Decision 93Gu4809 delivered on May 13, 1994

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

The defendant's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged that the defendant applied for change of the purpose of use of the 3rd floor building in this case where the plaintiff is located within a general commercial district and a parking lot improvement district, the housing of the 1st floor, the accommodation facilities of the 2nd floor to the public bath, and the alteration of the purpose of use of the 2nd floor among the above buildings is equal or low to the installation standards of the parking lot and the 2nd floor attached parking lot under the Enforcement Decree of the same Act, but it is not required to establish a new parking lot but to change the purpose of use of the 1st floor to the public bath. Thus, the court below rejected the above application for change of use on the ground that the establishment of a 1st unit annexed parking lot is required to establish a 5th annexed parking lot. The court below determined that the defendant's application for change of the purpose of use of the 5th annexed parking lot should not be compared to the above changed purpose of use of the 5th annexed parking lot because it is not necessary to establish the 5th annexed parking lot.

However, Article 19(1) of the Parking Lot Act provides that a person who intends to build or install buildings, golf practice ranges or other facilities creating demand for parking within an urban planning zone shall establish annexed parking lots within the relevant facilities or site. Article 19(3) of the same Act provides that the types of facilities and the standards for installing annexed parking lots under paragraph (1) of the same Article shall be determined by the Presidential Decree. Accordingly, Article 6(1) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 13672, Jun. 30, 192; hereinafter referred to as the “Enforcement Decree”) provides that the types of facilities to be installed annexed parking lots and the standards for installing annexed parking lots shall be provided for in the attached Table 1, and Article 5 of the Addenda of the Enforcement Decree provides that if the existing annexed parking lots are altered due to the alteration of use of facilities at the time of the enforcement of this Decree, the installation standards for annexed parking lots shall not apply only to the changed use of facilities, notwithstanding the provisions of Article 1 and subparagraph 4 of the annexed parking lots.

If the facts are duly determined by the court below, as in this case, in the case, where the use of the first and third floors of the building of this case is intended after the Specialized Enforcement Decree of the Parking Lot Act was amended and the duty to establish an annexed parking lot was strengthened, the part for which the standards for establishment of annexed parking lots are the same or lower-class facilities (the second and third floors of the building of this case) may change the purpose of use, notwithstanding the provisions of the proviso of Article 5 of the Addenda of the Enforcement Decree, pursuant to the provisions of the proviso of Article 5 of the Addenda of the Enforcement Decree. However, the part for which the proviso of Article 5 of the Addenda of the Enforcement Decree is not applied due to the increase in the standards for establishment of annexed parking lots (the first floor of the building of this case) is applied to the standards for establishment of annexed parking lots in accordance with the provisions of the main sentence of Article 5

Therefore, the decision of the court below is erroneous in misunderstanding the legal principles of the Parking Lot Act and the Enforcement Decree of the same Act, and it is obvious that such illegality has affected the conclusion of the decision. Thus, the decision of the court below is justified in pointing this out, since the defendant's rejection disposition of this case is justified on the ground that it requires the establishment of an annexed parking lot for one-half of the plaintiff's application for change of use of this case.

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 Shin Sung-sung (Presiding Justice)