[1] Whether a building permit holder may refuse an application for permission for reasons other than the grounds for restriction under the relevant statutes (negative)

[2] Whether a construction permit may be refused where the construction within a district unit planning zone does not conform to the district unit planning (affirmative)

[3] In a case where a boundary between a cadastral boundary and a classification of uses is changed by a district unit plan, whether a land owned by another person or a disposal of one’s own land may be enforced by a district unit plan (negative)

[4] The case holding that the rejection disposition of a building permit violates the contents and purport of the district unit plan since it practically forces the landowner to acquire the ownership or use right of the land adjacent to another owner

[1] A building permit holder shall grant a building permit under the Building Act, as a matter of course, unless the application for a building permit is in conflict with any restriction stipulated by the relevant laws and regulations, such as the Building Act, and notwithstanding the fact that there is no need for a significant public interest, permission for a person meeting the requirements shall not be denied for reasons other

[2] Under Article 54 of the National Land Planning and Utilization Act and Article 8(4) of the Building Act, 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 either construct a building or alter its purpose in compliance with the district unit planning, and the person holding the building permit shall confirm whether the construction of a building in the site intended for the construction of the relevant purpose, size, or form complies with the district unit planning zone. As such, the person holding the building permit may refuse the building permit in a case where the construction

[3] Since a district unit plan cannot compel the acquisition of land owned by another or the disposal of one’s own land by the district unit plan, even if the boundary based on a cadastral boundary and a classification of land varies according to the district unit plan, the content and purport of the district unit plan does not exceed the scope that the building should be constructed or the use of the building should be changed in line with each designated purpose, and it cannot be deemed that the land owner’s cadastral boundary, which is an illegal type, corresponds to the boundary of the use of the long-term type as determined by the district unit plan

[4] The case holding that a rejection disposition of a building permit violates the contents and purport of a district unit plan, since it practically forces a landowner to acquire ownership or right to use another owner's land adjacent to the landowner

[1] Article 8 (4) of the Building Act / [2] Article 54 of the National Land Planning and Utilization Act, Article 8 (4) of the Building Act / [3] Article 54 of the National Land Planning and Utilization Act / [4] Article 54 of the National Land Planning and Utilization Act, Article 8 (4) of the Building Act

[1] Supreme Court Decision 92Nu3038 delivered on December 11, 1992, 94Nu14247 delivered on October 13, 1995 (Gong195Ha, 3802) Supreme Court Decision 94Nu14247 delivered on October 13, 1995 (Gong195Ha, 3802) Supreme Court Decision 95Nu9051 delivered on December 12, 1995 (Gong196Sang, 414) (Gong196Sang, 2001Du1291 delivered on October 25, 2003)

Korea Electric Power Corporation (Attorney Yoon-sik et al., Counsel for the defendant-appellant)

The head of Yongsan-gu Seoul Metropolitan Government (Seoulmun Law Firm, Attorney Oh Jeong-hoon, Counsel for defendant-appellant)

Suwon Apartment Development Promotion Committee (Law Firm Multi-Daun, Attorneys Cho Dong-pon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Nu7527 delivered on December 22, 2005

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

The grounds of appeal are examined.

1. The measure of the court below

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below rejected the Plaintiff’s application for a construction permit of 70 square meters on July 11, 201 as part of the building site (number 1 omitted) 8,190 square meters in Yongsan-gu, Seoul, which was owned by the Plaintiff as the building site of 5 square meters (hereinafter “land number 1 omitted”), on the ground that part of the building site of 6,739.41 square meters (number 2 omitted) and 740 square meters in the building site (hereinafter “building site of this case”) which were owned by the Plaintiff as the building site of 5 square meters in line with the above-mentioned district unit planning, on the ground that part of the number of the building site of 5 square meters and the building site of 740 square meters in line with the above-mentioned district unit planning, and rejected the Plaintiff’s application for a construction permit of 94 square meters in proportion to the size of the building site of the building site of this case (hereinafter “building site of this case”).

2. Judgment of the Supreme Court

However, we cannot agree with the above decision of the court below for the following reasons.

Unless the application for a building permit is in conflict with any restriction stipulated by the relevant laws and regulations, such as the Building Act, a building permit holder shall grant a building permit under the same Act as a matter of course, and notwithstanding the absence of a serious public interest, permission to a person meeting the requirements cannot be denied for reasons other than the grounds for restriction prescribed by the relevant laws and regulations (see Supreme Court Decisions 92Nu3038, Dec. 11, 1992; 2002Du3201, Apr. 25, 2003, etc.). Meanwhile, in cases where a person intends to construct a building or change the use of a building in a district unit planning zone pursuant to Article 54 of the National Land Planning and Utilization Act and Article 8(4) of the Building Act, he/she shall verify whether the building permit conforms to the relevant district unit planning plan, and the person having the authority to permit construction corresponds to the district unit planning zone to construct the building on the site for which the building is to be built.

According to the facts established by the court below, part of the land (number 1 omitted) and the land above (number 3 omitted) which are adjoining to the land and the land (number 1 omitted) which were owned by the plaintiff on July 11, 2001 under the Yongsan-gu District Unit Planning, which was determined and announced by the Mayor of Seoul Special Metropolitan City, are designated as the site for public facilities. Since each part is adjusted into a quasi-residential area, the boundary between the land and the land of the plaintiff is in an irregular form. However, the boundary between the land of public facilities and the quasi-residential area becomes one-section according to the classification of the use, and the land form of the public facilities and the land belonging to the quasi-residential area became all forms of land belonging to the public facilities and the quasi-residential area, and it is not possible to enforce the acquisition of the land owned by the plaintiff on the land and the disposal of the land owned by the plaintiff on the land of the public facilities and the quasi-residential area. Thus, even if the boundary between the boundary and the use of the building may not be determined by the boundary or use of the land.

In this case, the defendant rejected the above application on the ground that the plaintiff filed an application for a building permit to construct a substation which is a public facility on the above (number 2 omitted) land, which is the part corresponding to the site of the public facilities among the land (number 1 omitted), which was part of the land that became a site of the public facilities and quasi-residential area under the Yongsan District Unit Planning, on the ground that "the problem that part of the land use plan was established only on the land owned by the plaintiff remains as a site of the public facilities because it is anticipated that the land use plan will continue to remain as a site of the public facilities, and it is not consistent with the purpose of the determination of the district unit plan." In conclusion, the above application for building permit cannot be rejected on the ground that it is in violation of the contents or purport of the Yongsan District Unit Planning, since all the land of this case and the land A Dong site of this case were not applied for a building permit.

Ultimately, the Defendant’s rejection of the Plaintiff’s request for construction permission on the ground that it does not conform to the purpose of the determination of the district unit plan is not an unlawful disposition that deviates from discretion or abused by erroneous interpretation of the content and purport of the Yongsan District Unit Plan, and therefore, the lower court’s rejection of the Plaintiff’s claim seeking revocation of the disposition by maintaining the first instance judgment that the instant disposition was lawful, which erred by misapprehending the legal principles on the construction permission or district unit plan, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)