207Guhap47329 revocation of revocation of a disposition rejecting an application for building permit

00

Nowon-gu in Seoul Special Metropolitan City

April 1, 2008

April 29, 2008

1. On December 4, 2007, the defendant revoked the disposition rejecting an application for building permit filed against the plaintiff on December 4, 2007.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On November 15, 2007, the Plaintiff filed an application with the Defendant for a construction permit to construct five floors above the roof of the steel-mixed structure flat slock in Seoul Special Metropolitan City, Nowon-gu, on the instant land (hereinafter “instant application”). On November 15, 2007, the Plaintiff filed an application with the Defendant for a construction permit to build one residential active facility (hereinafter “instant building”).

B. On December 4, 2007, the Defendant rendered the instant disposition rejecting the application for this case on the ground that it is inappropriate in terms of the land use plan and the urban landscape to exclude the pertinent lot number from the rebuilding improvement zone. The Defendant, on December 4, 2007, rendered the instant disposition to the Plaintiff on the ground that “OBL and the surrounding areas of the A-Housing Reconstruction Project site, including the instant land, are included in the reconstruction improvement project in the reconstruction project implementation zone. However, if the instant land is designated in the future, property damage is anticipated due to the construction of the instant building, and excludes the relevant lot number in the rebuilding improvement zone of the block unit.

[Ground of recognition] Facts without dispute, Gap 1, 3 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant, a person holding a building permit, should grant a building permit unless the instant application is contrary to any restriction prescribed by the relevant laws, such as the Building Act, and it cannot be denied for reasons other than the grounds for restriction prescribed by the relevant laws and regulations, even though there is no need for a significant public interest. The instant disposition does not constitute the grounds for restriction on building permit under the relevant Acts and subordinate statutes, such as the Building Act, and does not constitute the grounds for restriction on building permit, and does not constitute the necessity for a significant public interest. Therefore, the Defendant’s disposition otherwise reported is unlawful.

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) Unless the application for a building permit is contrary to any restriction stipulated by the relevant laws, such as the Building Act, a person having the right to a building permit must grant a building permit under the same Act as a matter of course, and notwithstanding the absence of a serious public interest, a person meeting the requirements cannot refuse a building permit for reasons other than the grounds for restriction under the relevant laws and regulations (see Supreme Court Decision 2006Du1227, Nov. 9, 2006).

In addition, pursuant to Article 4 (4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008), where the designation or alteration of designation of a rearrangement zone is publicly notified, matters concerning the district unit plan falling under any of the subparagraphs of Article 52 (1) of the National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning Act") among the rearrangement zone and rearrangement zone concerned shall be determined and publicly notified as Class 1 district unit plan and Class 1 district unit planning zone under Article 5 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8852 of Feb. 29, 2008), the person who intends to construct buildings in a rearrangement zone shall obtain permission from the head of Si/Gun. Meanwhile, in cases where a building is constructed in a district unit planning zone, the person who has the authority to permit construction shall make a public notification of the designation of a rearrangement zone and review whether the building site is constructed within the district unit planning.

However, if the district unit plan is not appropriate, the building permit may be denied, but it is reasonable to view that it does not be subject to any restriction on the building permit if the designation and announcement of the rearrangement zone are not yet made.

(2) Meanwhile, in accordance with Article 8-2(1) of the Building Act and Article 58(1)3 of the National Land Planning and Utilization Act, a building permit holder shall grant a building permit only when the construction of a building for the purpose, size, or form of the building to be permitted does not interfere with the implementation of an urban planning project (see Supreme Court Decision 97Nu14378, Apr. 23, 199). Thus, in this case, whether the instant building, which intended to construct a high-priced new building, in the instant case, obstructs the implementation of an urban planning project in progress in the zone scheduled to be designated as a rearrangement zone, or there is a need for a significant public interest to return the Plaintiff’s application, except for the grounds for restriction prescribed by relevant Acts and subordinate statutes.

In full view of the purport of the arguments and arguments as a result of the fact-finding on the Eul evidence Nos. 3 through 6 and the head of this court's A-building and maintenance project association (hereinafter referred to as "the non-party A-cooperative")'s fact-finding on Nov. 28, 2007, after the application of this case, the non-party union only prepared and submitted a plan to formulate an improvement plan and a designation of an improvement zone, and it can be recognized that the non-party union had not yet been designated as an improvement zone, including this case's land. ① The plaintiff's application of this case is not intended to increase speculative purpose or the number of households, but it seems to be purely newly constructed neighborhood living facilities. ② In relation to the reconstruction project to be promoted by the non-party union, it is unclear whether the non-party union still has not been designated as an improvement zone, and it is difficult to conclude that the new construction of this case may cause property damage to the non-party A-party A-project zone, and ③ it is difficult to consider it directly inappropriate for the plaintiff's land use plan and the urban landscape.

(3) Therefore, the instant disposition that rejected the Plaintiff’s instant application on the grounds of the instant disposition is unlawful.

D. Defendant’s assertion and judgment thereon

(1) Correction of any defect

Even if the disposition of this case was defective on the basis of the time of the application of this case, if the designation of the rearrangement zone is limited, the permission to build a fish car will be limited. Thus, the disposition of this case

As a result, it is argued that the defect is not illegal and the defect is cured.

The issue of illegality of an administrative disposition in an administrative litigation shall be determined based on the law and factual state at the time of the administrative disposition, and it shall not be affected by the amendment or repeal of the law or changes in the actual state after the disposition, and the cure of defective administrative act shall not be permitted in principle from the point of view of the nature of the administrative act or the principle of rule of law. In exceptional cases where the performance of the administrative act is avoided and the permission is granted for the sake of legal stability of the parties, it shall be recognized for a combined purpose according to specific circumstances to the extent that it does not infringe upon the rights and interests of the people (see Supreme Court Decision 2001Du10684, Jul. 9, 2002).

With respect to the instant case, as asserted by the Defendant, the mere fact that there is a designation of the rearrangement zone including the instant land after the instant disposition cannot be deemed to have any special circumstance to allow the cure of defective administrative acts or to deny the cancellation of illegal administrative acts. Therefore, this part of the Defendant’s assertion is without merit.

(2) Judgment of the court below

Even if the disposition of this case is unlawful, the defendant asserts that the plaintiff's claim should be dismissed through the "assessment decision" under Article 28 of the Administrative Litigation Act, considering the various circumstances of the designation of the rearrangement zone and the progress of reconstruction improvement project.

In order to maintain an illegal administrative disposition as it goes against public welfare, the cancellation should be limited under extremely strict requirements, even though the division of the administrative office is illegal. In determining whether it is considerably inappropriate for public welfare, the requirements should be determined by comparing and comparing the necessity for cancellation or modification of illegal and unfair administrative disposition and the situation against public welfare that may arise therefrom (see Supreme Court Decision 99Du7210 delivered on February 11, 200), and the responsibility for assertion and admission of the situation in which the decision is made to the defendant administrative agency is against the defendant.

With respect to the instant case, the Defendant merely takes the main place to the effect that the assessment of circumstances should be conducted, and there is no specific evidence to prove the circumstances to render a judgment, and there is no other evidence to acknowledge this case. Even if the Defendant’s assertion is made, even if the Defendant decided that the interests of those who consent to the implementation of the re-building improvement project would be infringed upon because the designation of the rearrangement zone and the re-building improvement project would not be smoothly implemented, the revocation of the instant disposition cannot be deemed to be considerably inappropriate for public welfare (see Supreme Court Decision 9Du5566, Jun. 15, 2001). Accordingly, the Defendant’s assertion on this part is not justified.

3. Conclusion

Therefore, the plaintiff's claim is reasonable and acceptable, and it is so decided as per Disposition.

Justices Kim Jong-hwan

Judges Croat

Judge Lee Lee Sang-hoon

Related Acts and subordinate statutes

m. Urban and Residential Environment Improvement Act

Article 4 (Formulation of Rearrangement Plans and Designation of Rearrangement Zones)

(1) The head of a Si/Gun shall determine matters prescribed by Presidential Decree, such as concentration of old and inferior buildings within the extent consistent with the basic plan.

14 days after formulating a rearrangement plan including the following matters for the district meeting the requirements:

More than 10 residents are made available for public and the opinions of the local councils are heard, and the improvement zone is attached thereto.

An application for designation, and if it is necessary to modify the contents of the improvement plan, it shall be made through the same procedure.

An application for modified designation shall be filed: Provided, That where insignificant matters prescribed by the Presidential Decree are modified, the main text thereof.

Procedures for public inspection and hearing of opinions of the local council may not be followed.

1. Title of the rearrangement project;

2. Rearrangement zone and its size;

3. Urban planning facilities as prescribed in subparagraph 7 of Article 2 of the National Land Planning and Utilization Act (hereinafter referred to as the “urban community”);

Plans for the installation of catch facilities (hereinafter referred to as "fishing facilities").

4. Plan for installation of joint-use facilities;

5. A plan for the main use, building-to-land ratio, floor area ratio, height, and total floor area of a building;

6. A plan to conserve urban scenery and the environment and to prevent disasters;

6-2. A plan to protect the educational environment around a rearrangement zone;

7. Expected timing for implementing the rearrangement project;

7-2. Ags (limited to the areas liable to supply the reconstruction rental houses) on the reconstruction rental houses, such as the size, etc. of reconstruction rental houses under Article 30-2 (1);

7-3. A plan for matters under the subparagraphs of Article 52 (1) of the National Land Planning and Utilization Act (necessary matters);

only in the case of)

8. Other matters necessary for implementing the rearrangement project, which are prescribed by the Presidential Decree.

(2) The Mayor/Do Governor shall designate or alter a rearrangement zone (a minor under the proviso to paragraph (1) with the exception of its subparagraphs).

Where it is intended to designate the matters prescribed by Presidential Decree among the matters, such matters shall be prescribed by Presidential Decree.

Pursuant to the Local Urban Planning Committee and the Special Metropolitan City, Metropolitan Cities, and Dos (hereinafter referred to as the "City/Do") pursuant to Article 4 of the Building Act.

Designation or designation with modification after joint deliberation by the Building Committee established in the Si/Do (hereinafter referred to as the "City/Do").

of this section.

(3) Where a Mayor/Do Governor designates or alters an improvement zone pursuant to paragraph (2), he/she shall maintain the relevant improvement zone.

Public notice of the details of designation or alteration including the plan, in the public bulletin of the local government

After completing the meeting, the Minister of Construction and Transportation shall designate the Minister in accordance with methods and procedures.

shall report the change or change of designation.

(4) Where public announcement is made for the designation or alteration of a rearrangement zone under paragraph (3), the relevant rearrangement.

Any person falling under any of the subparagraphs of Article 52 (1) of the National Land Planning and Utilization Act among the zones and maintenance plans;

Matters concerning the Class 1 district unit planning and Class 1 district unit planning under Articles 49 and 51 of the same Act.

It shall be deemed that the area has been determined and publicly announced.

(5) A district unit planning zone under the National Land Planning and Utilization Act shall be set forth in the subparagraphs of paragraph (1).

Where a district unit plan, including both paragraphs, is determined and publicly notified (including where a change is determined and publicly notified);

The relevant district unit planning zone shall be deemed designated and publicly notified as a rearrangement zone.

Article 5 (Restrictions, etc. on Activities)

(1) Construction of buildings, installation of structures, alteration of the form and quality of land, collection of soil and stones, division of land, within a rearrangement zone;

A person who intends to do an act prescribed by Presidential Decree, such as piling up goods, shall obtain permission from the head of a Si/Gun.

The same shall apply to any modification to the permitted matters.

(5) Except as otherwise provided for in this Act, regarding permission under paragraph (1), the National Land Planning and Utilization Act shall be applied thereto.

The provisions of Articles 57 through 60 and 62 of the Act on the Management of Land, etc. shall apply mutatis mutandis.

(6) Where permission is obtained pursuant to paragraph (1), Article 56 of the National Land Planning and Utilization Act shall be applied.

shall be deemed to have been granted a license under the regulations.

Article 39 (Request for Sale)

A project implementer may, in implementing a housing reconstruction project, file a claim for sale with the provisions of Article 48 of the Act on the Ownership and Management of Aggregate Buildings apply mutatis mutandis to the land and buildings of a person (including those who own only buildings or lands) who fails to give consent to the establishment of a partnership under Article 16 (2) and (3) in carrying out the housing reconstruction project. In this case, the rebuilding resolution shall be deemed to be the consent to the establishment of the partnership, and the partitioned ownership and the right to use site shall be deemed the ownership and other rights of the land or buildings subject to the claim for sale

/Building Act

Article 8 (Building Permission)

(1) A person who intends to construct or repair a building shall obtain permission from the head of a Si/Gun/Gu: Provided, That the same shall not apply:

Buildings with not less than 21 floors which meet the purpose and size as determined by the Presidential Decree, such as buildings in the Special Metropolitan City or Metropolitan Cities.

Where construction is intended, permission from the Special Metropolitan City Mayor or the Metropolitan City Mayor shall be obtained.

Article 8-2 (Council for Complex Civil Petitions en bloc)

(1) Where the permission granter intends to grant permission under Article 8, he/she shall do so in the size or form concerned.

Act on National Land Planning and Utilization to construct a building on the site intended to do so

Articles 54, 56 through 62, and 76 through 82 of this Act and other related Acts and subordinate statutes prescribed by Presidential Decree.

Confirmation of whether it is appropriate for the subparagraph of paragraph 6 of Article 7 and paragraph 7 of Article 7, or each subparagraph of paragraph 6 of Article 8

In order to deal with the matters in subparagraphs and paragraph (7) of the same Article, a building complex resident under the conditions as prescribed by the Presidential Decree.

The Council shall hold a meeting of the Council.

National Land Planning and Utilization Act

Article 52 (Contents of District-Unit Plans)

(1) Class 1 district unit planning and Class 2 district unit planning in order to achieve the objective of designating a district unit planning zone.

The catch shall include at least four of the following matters, including those referred to in subparagraphs 2 through 4 and 7:

in subsection (1).

1. Subdivision or alteration of special-purpose areas or special-purpose districts within the scope prescribed by Presidential Decree;

2. Disposition and size of infrastructure as prescribed by the Presidential Decree;

3. A group of areas surrounded by roads, or a group of lands partitioned off for a planned development and maintenance;

Scale and creation plan

4. Maximum or minimum limit on the building-to-land ratio or the height of buildings the use of which is restricted;

5. Plans for the placement, type, color, or building line of buildings;

6. An environmental management plan or landscape plan;

7. Traffic control plan;

8. Other matters necessary for the rationalization of land use, the promotion of functions of cities or agriculture, forestry, and fishing villages, etc.

Matters prescribed by Presidential Decree.

Article 54 (Construction, etc. within District Unit Planning Zones)

Where a person intends to construct a building or alter the purpose of use of a building in a district-unit planning zone, he/she shall do so in compliance with the district-unit plan: Provided, That the same shall not apply where a district-unit plan is not formulated and where a building is to be constructed step by step with a difference located within the scope of

Article 58 (Standards for Permission for Development Activities)

(1) The Special Metropolitan City Mayor, Metropolitan City Mayors, or the head of Si/Gun shall apply for permission of development in compliance with the following standards:

Only in the case of permission for development activities shall be granted.

3. Not to hamper an implementation of urban planning project;

Administrative Litigation Act

Article 28 (Judgment of Assessment)

(1) Even if the plaintiff's request is deemed reasonable, cancellation of the disposition, etc. is substantially public welfare.

If deemed inappropriate, the court may dismiss the plaintiff's request. In such cases, the court shall dismiss the plaintiff's request.

shall clearly state in the text of the judgment that the disposition, etc. is unlawful.

(2) In rendering a judgment under paragraph (1), the court shall compensate the plaintiff in advance for the loss that the plaintiff will suffer.

The degree and method of compensation and other circumstances shall be investigated.

③ The Plaintiff’s state or public organization to which the Defendant administrative agency belongs is responsible for compensating for damages and installing hazard-preventive facilities.

Other claims for appropriate remedies may be filed jointly with the court in which the revocation action is pending.

(c) the end;