2014 Gohap5334 Demanding revocation of an order issued to suspend construction works

1. Kim○-○

2. Kim Jong-chul

[Judgment of the court below]

Attorney Go Sung-sung, Counsel for the plaintiff-appellant

Jeju Market

Attorney Go Young-young, Counsel for the defendant-appellant

March 18, 2015

April 1, 2015

1. All of the plaintiffs' claims are dismissed.

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

The defendant's rejection disposition against the order to suspend construction works for lodging facilities on December 5, 2013, which was issued by the defendant against the plaintiffs on August 21, 2014, is revoked.

1. Basic facts

A. On April 6, 2011, the Plaintiffs sought a new deliberation on the construction plan to newly build accommodation facilities (family hotel) on the 21st ground of Jeju Special Self-Governing Province Governor (hereinafter referred to as the “ Jeju Special Self-Governing Province Governor”).

B. On April 7, 2011, the Jeju Do Governor rendered a new review, including the review on securing 6 meters of access roads, ② the height of a building by eliminating fallings, ③ the plane and re-plan for re-entry (the need to divide the length of a building), ④ the need to clarify the characteristics of pit on the floor plan of the first floor.

C. On April 13, 201, the Plaintiffs prepared architectural planning design drawings that partially modify the construction plan and applied for deliberation on the construction plan again to the Jeju Do Governor. On April 14, 2011, the Jeju Do Governor decided to grant conditional consent by attaching the condition that the design should be reviewed (at least by the second floor part) if the design is cut off on the left-hand side on the front map.

D. Thereafter, on April 8, 2013, the Plaintiffs filed an application with the Jeju Do Governor for approval of a business plan for a tourist accommodation business on the scale of three hundred and twenty guest rooms, a tourist accommodation business type of business, a mutual name Dozurel, 3,826m in the site area, building area, 288.33m in the building area, 84.27m in the total floor area, 848.27m in the ground, three floors above ground, and 20 guest rooms, and obtained approval of the business plan

E. After obtaining approval for a business plan as above, the Plaintiffs filed an application for a construction permit with the Defendant, along with design documents according to the details of approval for the allocation of tourist accommodation business. On May 21, 2013, the Plaintiffs received a construction permit from the Defendant (hereinafter “instant construction permit”).

F. On July 23, 2013, the Plaintiffs obtained a building permit from the Defendant to modify matters regarding the building permit. On November 21, 2013, the Plaintiffs reported the commencement of the construction to Jeju Viewing and continued the construction.

G. On December 5, 2013, when the defendant intends to obtain a building permit under Article 11 of the Building Act within the old station designated and publicly notified pursuant to Article 309(1) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter referred to as the "Special Act on Jeju"), he/she shall undergo a deliberation by the Building Committee under Article 4 of the Building Act, and the owner or designer of the building who intends to construct a building subject to deliberation on the construction plan of Jeju Special Self-Governing Province (hereinafter referred to as the "Ordinance") pursuant to Article 5(1) of the Building Act shall file an application for deliberation on the construction plan with the person who has the right to the basic design, permission, and winner of the building before filing an application for the construction permit. However, in the case of the building of this case, he/she shall submit the basic design reflecting the results of deliberation on the basic design pursuant to Article 5(3) of the same Ordinance, on the ground that the building of this case did not undergo the above procedures.

H. Since then, the Plaintiffs filed an application to cancel the instant suspension order, the Defendant did not plan to cancel the instant suspension order on August 21, 2014, and notified the Building Committee that it will implement the deliberation procedure (hereinafter “instant notification”).

[Reasons for Recognition] A’s 1-5, A’s 2-1 through 4, A’s 3-2, A’s 4-6, A’s 11, and the purport of the entire pleadings

2. Determination on the defense prior to the merits

The whole omission of this part

3. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

The plaintiffs already obtained approval from the Jeju Do governor for a tourist accommodation business plan and approval for a change of the business plan, and around the building site of this case, the housing already concentrated is formed, and since the building site of this case is located inside the house, it cannot be deemed that the neighboring natural environment, etc. is seriously damaged even if the construction project is conducted in accordance with the construction plan and design plan of the plaintiffs. Even if the plaintiffs are subject to a new construction plan deliberation, it cannot be said that the natural environment preservation plan is presented compared to the previous construction result or that the natural damaged door of a certain part arising from the construction project cannot be fundamentally resolved, so it cannot be deemed that the serious public interest is infringed upon due to the construction permit of this case. On the other hand, the suspension order of this case by the defendant is large due to the defendant's business negligence, and the plaintiffs are expected to suffer enormous economic loss due to the suspension order of this case, the disposition of this case is excessive or harsh to the plaintiffs, and it is unlawful because the disposition of this case is deviating from or abusing discretion and it is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 309(1) of the Jeju Special Act provides for special cases concerning the deliberation on a construction plan under the Building Act, and provides that if a building is to be constructed within an area designated and publicly announced by the Do Governor because it is deemed necessary to maintain natural scenery and urban landscape, the basic design shall be established after deliberation by the Do Building Committee under Article 4 of the Building Act on the form, color, and road, etc. of the construction plan. In this regard, Paragraph (3) of the same Article provides that the designation, public announcement, scope of deliberation, procedure, and standard shall be determined by the Do Municipal Ordinance. Meanwhile, Article 5(1) of the instant Ordinance provides that the owner of a building or the construction designer who intends to construct a building for the subject matter of the construction plan shall file an application with the Do Governor for the deliberation on the construction plan along with the construction plan plan drawings, etc. before the basic design is to be reflected in the basic design at the time of deliberation on the building plan or the construction designer who applied for the deliberation on the construction plan as above, shall submit a report on construction plan and report along with the design drawings.

2) The circumstances revealed in the above basic facts are as follows.

(1) In full view of the structure and contents of the Jeju Special Act and the provisions of this Ordinance as seen earlier, when the Governor intends to build a building in an area designated and publicly announced by the Governor, the Jeju Special Act and the Ordinance of this case ensure autonomy, responsibility, creativity and diversity of Jeju Special Self-Governing Province by reflecting the regional and historical character of the Jeju Special Self-Governing Province from the basic design stage to the form, color, road shape, etc. of the building, thereby ensuring the autonomy, creativity and diversity of Jeju Special Self-Governing Province. Therefore, when the Governor intends to construct a building in an area designated and publicly announced by the Jeju Special Act and the Ordinance of this case before the basic design is deliberated by the Building Committee prior to the basic design, reflecting the result of deliberation in the basic design, and having the design drawings submitted along with the application for building permission, report,

1. However, the Plaintiffs did not undergo such procedures even though they obtained a building permit by undergoing a deliberation by the Do Building Committee on the construction of a building, and accompanied by design documents reflecting such procedures. This is unlawful as violating the provisions of the Jeju Special Act and the ordinances of this case.

③ The Plaintiffs, upon deliberation by the Building Committee pursuant to the relevant provisions, may continue construction by obtaining a modified building permit, along with design books that reflect the result, and may minimize damage by prompt implementation of the aforementioned procedures. However, the legislative purpose of the Jeju Special Act and the instant Ordinance is likely to be mitigated, as seen earlier, since there were no deliberation by the Building Committee on the shape, color, road shape, etc. of a light building that continues construction in the present situation.

3) In full view of the above circumstances, the instant suspension order cannot be deemed to be harsh to the Plaintiffs, or to have been infringed upon by the instant suspension order, more than the public interest that would have been achieved. Therefore, the instant suspension order cannot be deemed to have deviates from or abused discretionary authority. As such, the instant disposition rejecting the instant suspension order, as long as the instant suspension order cannot be deemed to have deviates from or abused discretionary authority, cannot be deemed to have exceeded or abused discretionary authority. Ultimately, the Plaintiffs’ assertion is without merit.

4. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.

(Presiding Judge)

Notarial decoration;

Complaints

Site of separate sheet

Relevant statutes

▣ 건축법

Article 79 (Measures against Non-compliant Buildings, etc.)

(1) If a site or building violates this Act, or any order issued or disposition taken under this Act, the competent permitting authority shall do so.

A permit or approval under paragraph (1) shall be revoked, or the management of the site manager of the building;

(i) To order or possessor (hereinafter referred to as the “owner, etc.”) to suspend a construction work, or to fix a considerable period of time.

to remove, rebuild, extend, repair, change the purpose of use, prohibit the use of, and take other necessary measures.

order.

▣ 제주특별자치도 설치 및 국제자유도시 조성을 위한 특별법

§ 309. Special Exception for deliberation on construction plans

(1) Cases within an area designated and publicly announced by the Governor as deemed necessary to maintain natural scenery or urban scenery.

When a stable is to be constructed, the Building Act for the form, color, road, etc. of the building plan;

The basic design shall be prepared after deliberation by the Do Building Committee under the provisions of Article 4.

(2) The provisions of Articles 11 and 14 of the Building Act shall be applicable within the district designated and publicly announced pursuant to paragraph (1).

this Act or other Acts shall apply only to new construction permission or construction report.

If it is intended to accept a construction permit or building report (including the case where such a construction permit or building report is deemed to exist), the Do Construction Committee.

It shall undergo deliberation by the Council.

③ 제1항의 규정에 의한 대상구역 지정공고 및 심의범위, 절차 및 기준 등은 도조례로 정한다. ▣ 제주특별자치도 건축계획심의에 관한 조례

Article 5 (Application, Procedures, etc. for Deliberation on Building Plans)

(1) Construction of structures subject to deliberation on a construction plan within the zone designated and publicly announced pursuant to Article 3 (4).

A building owner or a building designer who intends to obtain approval, permission, or approval for a building before the basic design is completed;

In addition, an application for deliberation on a construction plan shall be filed in accordance with attached Form 1.

(3) An applicant under paragraph (1) shall reflect the results of deliberation on the basic design in the basic design and grant a building permit and a new design.

shall be accompanied by an application for appeal or consultation.