Lot shopping Co., Ltd. (Law Firm Rate, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Jin-si market (Attorney Song Dong-dong et al., Counsel for defendant-appellant)

April 1, 2010

1. The defendant's provisional injunction against the plaintiff on July 16, 2009 and the provisional injunction against the change of the use of an attached parking lot on July 28, 2009 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On July 1, 2009, the Plaintiff filed an application for a gas station building permit with the Defendant on July 1, 2009, in order to newly build a gas station with a lot size of 854m2 and a building area of 197.4m2 (hereinafter “instant gas station”) on the instant parking lot (hereinafter “instant parking lot”). However, on the 16th of the same month, the Defendant rendered a non-permission disposition on the following grounds: (a) the change in the parking lot for other purposes; (b) the change of the existing gas station’s livelihood threats; and (c) the occurrence of a collective civil petition against the existing gas station’s business operator.

C. Foods

Pursuant to Article 19-4 of the Parking Lot Act, an annexed parking lot is, in principle, prohibited from being used for purposes other than a parking lot, in violation of this provision;

○ Upon the application for a building permit of a gas station, the existing gas station business entity's livelihood threats and group civil petitions have already occurred, and the surrounding building and eightm road are moved to a road, and the collective civil petition is anticipated to occur due to the installation of a gas station, which is a hazardous material facility, and notification of nonpermission of the application for a building permit of a gas station is anticipated.

B. In addition, on July 21, 2009, the Plaintiff applied for the change of the use of the instant parking lot to the Defendant, but on the 28th of the same month, the Defendant rendered a provisional disposition of refusing the change of the use (hereinafter “instant provisional disposition of refusing the use of the instant parking lot,” and “each of the instant dispositions,” including the “provisional disposition of refusing the use of the instant parking lot,” as follows.

C. Foods

○ An annexed parking lot under Article 19-4 of the Parking Lot Act shall, in principle, be prohibited from being used for any purpose other than a parking lot, and Article 12(1) of the Enforcement Decree of the same Act stipulates that a parking lot exceeding the standards for installation of annexed parking lots or the standards for restrictions on installation of annexed parking lots of the relevant facilities shall

The annexed parking lot under the provisions of Article 15(2) of the Ordinance on the Parking Lots at the time of credit shall be prohibited from being used for other purposes until the facilities are extinguished, and the change of the use of the annexed parking lot is not possible.

[Ground of recognition] Facts without dispute, entry in Gap evidence 3, 4, 6, 7 (including branch numbers if there is a serial number) and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) The allegation of illegality of the instant provisional disposition of denial of construction

(A) Claim as to the reason why it was impossible to change the attached parking lot for other purposes

According to the proviso to Article 19-4(1) of the Parking Lot Act and Article 12(1)3 of the Enforcement Decree of the same Act, the construction of gas stations in this case among the instant parking lots shall be permitted to change the use of an attached parking lot. On the other hand, the instant disposition of denying the construction of this case on the premise that the change of the use of the instant parking lot is not permitted

(B) Claim on the grounds of collective petition caused by the establishment of a gas station which is a dangerous facility for the threat of livelihood of the existing gas station operator.

The possibility of collective civil petitions resulting from threats to the livelihood of the existing gas station operators and the establishment of a gas station, which is a dangerous facility, does not fall under the grounds for restrictions on construction permission prescribed by the relevant Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, and the foregoing grounds alone do not require a significant public interest interest to deny the construction of the gas station. Therefore, the provisional disposition on the building permission of this case based on the above reasons is unlawful

(2) The allegation of illegality of the rejection of the change of use of this case

According to the proviso to Article 19-4(1) of the Parking Lot Act and Article 12(1)3 of the Enforcement Decree of the same Act, among the instant parking lots, the construction part of the gas station in the instant parking lot shall be permitted to change the use of an attached parking lot. The Defendant issued a provisional disposition to deny the use of the instant parking lot pursuant to Article 15(2) of the Enforcement Decree of the Parking Lot Act (hereinafter referred to as the “Ordinance”), which provides that “the annexed parking lot shall not be used for any other purpose until this facility is extinguished,” without any delegation from the Parking Lot Act or the Enforcement Decree of the same Act. However, the instant Ordinance provisions are not effective against the principle of statutory reservation. Therefore, the instant disposition to deny the use

(b) Relevant statutes;

The entries in the attached statutes, etc. are as follows.

C. Determination

On the other hand, we first examine the illegality of the provisional disposition of denying the use of this case, which is the premise of the provisional disposition of denying the use of this case, and then examine the illegality of the provisional disposition of denying the use of this case.

(1) Whether the disposition of denying the instant change of use was unlawful

(A) Determination as to the validity of Article 15(2) of the instant Ordinance

If Article 15 (2) of the Ordinance of this case is valid, the part on the construction of gas station in the instant parking lot which is an attached parking lot cannot be used for other purposes until the point of bar bar, which is the main facility, has ceased to exist, and the following shall be examined first as to the validity of the above provision.

Although local governments may enact self-government ordinances concerning their own autonomous affairs, which are their own affairs, and the affairs delegated by organizations that are delegated to local governments under the individual Acts and subordinate statutes, matters or penal provisions concerning restrictions on the rights of residents or the imposition of obligations on residents need to be delegated by Acts, and so-called delegation ordinances concerning the delegated affairs of institutions may be established only when they are delegated by ordinances to stipulate certain matters by ordinances under individual Acts and subordinate statutes. Thus, in the event of the enactment of ordinances concerning restrictions on the rights of residents or the imposition of duties on residents or other ordinances corresponding to penal provisions, the enactment of ordinances without such delegation shall be deemed to have no effect (see Supreme Court Decision 2006Hu52, Dec. 13, 2007).

Article 15 (2) of the Ordinance of this case provides that "a annexed parking lot established pursuant to paragraph (1) shall not be used for any other purpose until this facility is extinguished," and in cases where the alteration of the use of an annexed parking lot is permitted pursuant to the proviso of Article 19-4 (1) of the Parking Lot Act and Article 12 (1) of the Enforcement Decree of the same Act, matters concerning restrictions on the exercise of property rights by the owner of an annexed parking lot subject to the provision of this Ordinance shall not be permitted until the alteration of the use of the annexed parking lot is extinguished pursuant to the provisions of the above Article. Therefore, the above provision of the Ordinance shall be effective as delegated by the law, and it shall

Article 19(1) of the Parking Lot Act provides that an annexed parking lot shall, in principle, be installed inside the relevant facility or on its site. Article 19(4) of the same Act and Article 7(1) and (2) of the Enforcement Decree of the same Act provide that an annexed parking lot may be installed, either solely or jointly, in the vicinity of the site of the facility, if the annexed parking lot is below the size of 300 parking spaces. The “scopes adjacent to the site of the facility” shall be prescribed by the ordinances of local governments within the scope of 300 meters in straight line or 600 meters in walking distance from the boundary of the site to the boundary of the annexed parking lot. Accordingly, Article 15(1) of the same Ordinance provides that “in the case of establishing an annexed parking lot solely or jointly pursuant to the provisions of Article 19(4) of the Act, the distance from the boundary of the site to the boundary of the annexed parking lot to the boundary of the adjacent parking lot shall be within the distance of 200

However, Article 15 (2) of the Ordinance of this case provides for "restriction on the use of an attached parking lot established under paragraph (1)," which is irrelevant to "the scope adjacent to the site of a facility" delegated by Article 19 (4) of the Parking Lot Act and Article 7 (2) of the Enforcement Decree of the same Act. On the other hand, the restriction on the use of an attached parking lot is clearly defined without delegation to local government ordinances under Article 19-4 (1) of the Parking Lot Act and Article 12 (1) of the Enforcement Decree of the same Act. Therefore, Article 15 (2) of the Ordinance of this case provides for matters concerning the restriction on the rights of residents without delegation by law, and it is invalid against the principle of statutory reservation.

(B) Determination as to whether the instant parking lot is an annexed parking lot where the change of use is permitted

Therefore, we examine whether the instant parking lot is an annexed parking lot where the change of use under the proviso of Article 19-4(1) of the Parking Lot Act and Article 12(1)3 of the Enforcement Decree of the same Act is permitted.

Article 12(1) of the Enforcement Decree of the Parking Lot Act provides that the use of an attached parking lot may be changed pursuant to the proviso to Article 19-4(1) of the Parking Lot Act. Article 12(3) of the Enforcement Decree of the Parking Lot Act provides that “a parking lot which exceeds the standards for installation of an attached parking lot or the standards for restriction on installation of the relevant attached parking lot under Article 6 or Article 19(10) of the Act (referring to the changed standards for installation or restriction on installation in cases where the standards for installation or restriction on installation are changed due to an amendment to statutes or municipal ordinances after the installation of a facility) and is confirmed by the head of a Si/Gun/Gu for the excessive portion.” Article 6(1) and attached Table 1 of the Enforcement Decree provides that “one unit per 150 square meters of facility area for a sales facility, one unit per 200 square meters of facility area for a Class 1 neighborhood living facility, and one unit per 3

On the other hand, as to whether permission to change the use of a parking lot under Article 12 (1) 3 of the Enforcement Decree of the Parking Lot Act is a binding act or discretionary act, Article 12 (1) 1 and 2 (where the head of a Si/Gun/Gu recognizes that the use of the parking lot in question is practically impossible) of the Enforcement Decree of the Parking Lot Act, there is no phrase of administrative agency's discretion unlike Article 12 (1) 3 of the same Act, and Article 12 (1) 2 of the Enforcement Decree of the Parking Lot Act (where the head of a Si/Gun/Gu recognizes that there is no obstacle to the use of the parking lot).

However, in full view of the evidence mentioned above and the purport of the argument in Gap evidence No. 1, the sales facility area of the sculma store shall be 23,98.37m2, the area of the first-class neighborhood living facility shall be 2,601.87m2, the area of the education and research facility shall be 2,601.68m2, and the number of parking spaces in the instant parking facility shall be 724m2. The area of the instant parking facility shall be 31m2, and it shall be recognized that the area of the instant parking facility corresponds to 180m2 and the installation standards set forth in Article 6 and attached Table 1 of the Enforcement Decree of the Parking Lot Act shall be satisfied. Accordingly, according to the above recognition, the instant parking lot shall be confirmed to be in excess of the standards for installation or installation of the relevant attached parking facility.

Therefore, the defendant should have confirmed the above excessive part and permitted the change of use of the parking lot of this case, and unlike this, the non-permission of the change of use of this case is unlawful.

(2) Whether the instant disposition of non-permission of construction was unlawful

(A) Determination as to the reason why there is no change in the annexed parking lot for other purposes

The defendant should have permitted the alteration of the use of the parking lot of this case under the proviso of Article 19-4 (1) of the Parking Lot Act and Article 12 (1) 3 of the Enforcement Decree of the same Act shall not be a legitimate ground for the provisional disposition on the suspension of construction of this case.

(B) Claim on the grounds of collective petition arising from the establishment of a gas station which is a threat of livelihood of the existing gas station operator and dangerous facility

Unless the application for a building permit is in conflict with any restriction stipulated by relevant laws, such as the Building Act and the Urban Planning Act, a building permit holder shall, as a matter of course, grant a building permit under the same Act to a person meeting the requirements, and notwithstanding the absence of a serious public interest, permission for a person meeting the requirements cannot be denied for reasons other than those stipulated by relevant laws and regulations (see, e.g., Supreme Court Decision 2002Du3201, Apr. 25, 2003). Since collective civil petitions arising from the establishment of gas stations, which are dangerous facilities, do not constitute grounds for restricting the building permit prescribed by relevant Acts and subordinate statutes, such as the Building Act and the Urban Planning Act, the above grounds are examined as to whether the building permit of the gas station of this case

According to the evidence evidence Nos. 3, although it is found that the operator of a gas station located in the Nam-gu Association of Korea, Gwangju, and Jeonnam branch, filed a civil complaint opposing the construction of the gas station in this case with the defendant, it is found that the following circumstances are acknowledged that the whole purport of arguments is taken into account as a result of the fact inquiries about Gap's evidence No. 5 and this court's Tong-si, Nam-si, and Kunsan market, i.e., ① the neighboring residents or existing business operators' opposition itself cannot be a legitimate standard in determining whether to grant a building permit (see Supreme Court Decisions 201Du1482, May 8, 2001; 200Du9762, Jul. 26, 2002). ② The existing gas station business operator's use of the gas station can not be acknowledged as a loss of business between the existing gas station and the construction permit No. 1447, Mar. 1, 2000.

3. Conclusion

Thus, since the plaintiff's claim of this case seeking the revocation of each disposition of this case is well-grounded, it is decided as per Disposition by admitting all of the claims.

[Attachment]

Judges Kim Byung-hee (Presiding Judge)

1) Total sum of the area of sales facilities 23,98.37 square meters, the area of Class 1 neighborhood living facilities 2,019.87 square meters, the area of educational and research facilities 2,601.68 square meters, and the number of statutory parking spaces with the area of 206.9 square meters in storage and treatment facilities for dangerous substances