[1] Whether a land designated as an urban design area and for which a joint development agreement with neighboring land owners was not reached constitutes a “unrealistic site” under the Act on the Ownership of Housing Sites

[2] Whether Article 20 (1) 8 of the Housing Site Ownership Act, Article 26 (1) 12 of the Enforcement Decree of the same Act, and Article 9-2 (1) 2 of the Enforcement Rule of the same Act are unconstitutional

[1] In the case of a single construction which is not a joint development zone designated as an urban design zone under the Building Act and which is not a joint development zone to induce the development pursuant to the long-term comprehensive plan for the purpose of promoting urban functions and aesthetic view, construction is not entirely prohibited, but it is not a site where construction is prohibited or it is actually impossible to construct a house in accordance with the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, solely on the ground that the land is not properly carried out because it is possible to jointly or independently by consultation, sale, exchange, etc. with the neighboring land owner if it meets the urban design standards.

[2] A building in an urban design district designated as an urban planning district under Article 18 of the Urban Planning Act shall be constructed in compliance with the urban design in order to promote the function and aesthetic view of the city. Thus, no building may be constructed in a state designated as an urban design district but no building can be constructed in compliance with the urban design standards if the urban design is publicly announced. Thus, a building can be constructed in compliance with the urban design standards. Thus, in Article 20(1)8 of the Act on Ownership of Housing Site, Article 26(1)12 of the Enforcement Decree of the same Act, Article 26(1)2 of the same Act, Article 9-2(1)2 of the Enforcement Decree of the same Act, and Article 9-2(1)2 of the same Enforcement Decree of the same Act, only "housing site in an urban design district whose urban design has not been publicly announced as an urban design district under the Enforcement Decree of the Urban Planning Act shall be excluded from the subject of the charge, on the ground that

[1] Article 20 (1) 3 of the Act on the Ownership of Housing Sites / [2] Article 20 (1) 8 of the Act on the Ownership of Housing Sites, Article 26 (1) 12 of the Enforcement Decree of the Act on the Ownership of Housing Sites, Article 9-2 (1) 2 of the Enforcement Rule of the Act on the Ownership of Housing Sites, Article 18 of the Urban Planning Act, Articles 11 and 23 of the Constitution

[1] Supreme Court Decision 93Nu19405 delivered on May 24, 1994 (Gong1994Ha, 1844) Supreme Court Decision 93Nu23442 delivered on May 27, 1994 (Gong1995Ha, 3629) / [2] Supreme Court Decision 94Nu14216 delivered on February 14, 1995 (Gong195Ha, 1355) 94Nu28 delivered on July 14, 1995 (Gong195Ha, 2820)

Plaintiff

The head of Gangnam-gu Seoul Metropolitan Government

Seoul High Court Decision 95Gu4881 delivered on September 6, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

In the case of a single building, other than a joint development, designated as an urban design zone under the Building Act and subject to regulation for the purpose of promoting the urban function and aesthetic view, it is not entirely prohibited from construction by means of non-permission, etc., and if it conforms to the urban design standards, it is possible to jointly or independently construct by consultation, sale, exchange, etc. with the neighboring land owners. Thus, such consultation, etc. cannot be deemed as a site where the construction of a house is prohibited or actually impossible under the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, etc., which are stipulated in Article 20 (1) 3 of the Act on Ownership of Housing Site and the Urban Planning Act, solely on the ground that such consultation, etc. is not properly achieved (Article 93Nu19405 delivered on May 24, 1994, Article 93Nu23442 delivered on May 27, 1994

In the same purport, the decision of the court below that the land in this case does not constitute a site where the construction of a house is prohibited or substantially impossible under the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act under Article 20 (1) (3) of the Act on the Ownership of Housing Site, is just, and there is no violation of the law such as the theory of lawsuit. There

On the second ground for appeal

In accordance with Article 18 of the Urban Planning Act, buildings within an urban design district designated as an urban design district should be constructed in compliance with the urban design in order to promote the function and aesthetic view of the city. Thus, any building can not be constructed without the urban design district designated as an urban design district but if the urban design is publicly announced, buildings meeting the urban design standards can be constructed. Thus, Article 20(1)8 of the Act on Ownership of Housing Site, Article 26(1)12 of the Enforcement Decree of the same Act, Article 9-2(1)2 of the Enforcement Decree of the same Act, Article 9-2(1)2 of the same Enforcement Rule of the Urban Planning Act, only "housing site within an urban design district whose urban design has not been publicly announced as an urban design district under the Enforcement Decree of the Urban Planning Act, shall not be deemed to violate the constitutional right to equality. This is without merit.

With respect to the third and fourth points

The Act on the Ownership of Housing Site cited by theory, the Enforcement Decree of the same Act, and the Enforcement Rule of the same Act cannot be deemed to violate the provisions of the Constitution on the limitation of infringement of property rights and the right to equality (see, e.g., Supreme Court Order 9Da28, Jul. 14, 1995). We also have no reason.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)