A. Scope of matters that can be prescribed by the Municipal Ordinance of a local government under Article 33 of the former Building Act (amended by Act No. 3558 of Apr. 3, 1982)

B. Whether Article 48 of the former Building Act (amended by Act No. 3558 of Apr. 3, 1982) is applied to a case where the use of a simple restaurant or a building for public restaurant is changed to a local food store

A. Matters that can be prescribed by the Municipal Ordinance of a local government under Article 33 of the former Building Act (amended by Act No. 3558 of Apr. 3, 1982) are not limited to those specifically stipulated under Article 145(2) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 10480 of Oct. 8, 1981), but to those cases where it is deemed that the maintenance of aesthetic view would not interfere with the maintenance of aesthetic view, matters concerning the restriction on the use of a building may be prescribed by the Municipal Ordinance under Article 145(1) of the Enforcement Decree of the same Act

B. In a case where the whole or part of a building constructed with a building permit for the use of a simple restaurant or a public restaurant is used for the purpose of use as a Saturday store, it cannot be deemed that it falls under any of the neighborhood living facilities stipulated in each subparagraph of paragraph (4) of the attached Table of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 10480 of Oct. 8, 1981). Thus, it should be deemed that the use of a cafeteria which is the original restaurant changed its use as a Saturday store and changed its use into a cafeteria, and the construction of a 'building' as stipulated in Article 48 of the same Enforcement Decree under Article 174-2 (1) 1 of the same Enforcement Decree.

A. Article 33 of the former Building Act (amended by Act No. 3558 of Apr. 3, 1982); Article 145 (b) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 10480 of Oct. 8, 1981); Article 48 of the former Building Act (amended by Act No. 3558 of Apr. 3, 1982); Article 174-2 (1) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 10480 of Oct. 8, 1981)

B. Supreme Court Decision 82Nu225 delivered on February 28, 1984

Plaintiff 1 and 3 others, Counsel for the defendant-appellant

[Defendant-Appellant] Defendant 1

Daegu High Court Decision 84Gu92 delivered on July 24, 1984

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

(1) According to Article 18 (1) 2 of the Urban Planning Act (amended by Act No. 3410 of March 31, 1981), the Minister of Construction and Transportation may, if necessary for maintaining the aesthetic view of cities, designate an aesthetic district through urban planning. According to Article 19 (1) of the same Act, the restriction on and prohibition against the construction and other acts in the designated district shall be governed by the Building Act and other Acts, except as otherwise provided in this Act. Accordingly, the provisions of Article 33 of the Building Act (amended by Act No. 358 of April 3, 1982) provides that the construction of buildings within the district designated by the provisions of the Urban Planning Act shall be within the scope of the standards prescribed by the Presidential Decree, and the height of the buildings and its fixtures shall not be prescribed by the Municipal Ordinance of the local government concerned within the minimum height of the building site and its installation, and the installation of the buildings and its fixtures shall not be within the area designated by the Municipal Ordinance of the local government concerned.

(2) According to Article 48 of the Building Act, an act of changing the use of a building shall be deemed to be a construction of a building under the conditions as prescribed by the Presidential Decree in the application of this Act. Article 174-2 (1) of the Enforcement Decree of the same Act provides that an act of changing the use falling under any of the following subparagraphs shall be deemed to be a construction of a building in the application of the Act and this Decree, and Article 174-2 (1) of the Enforcement Decree of the same Act provides that an act of changing the use of a building shall be deemed to be a construction of a building in the application of the Act and this Decree, and the use of each subparagraph of attached Table (excluding the cases under each subparagraph of paragraphs (4) and (5) shall be specified in subparagraph 1. According to the provisions of the classification of the use of attached Table of the Enforcement Decree of the same Act, where the whole or part of a building constructed after obtaining a construction permit for the use of a simple restaurant or a public restaurant shall not be deemed to fall under any of the neighborhood living facilities as provided in each subparagraph (4) of the same attached Table.

(3) As above, as long as changing the use of a building originally permitted and using it for any purpose other than that of the permitted use constitutes construction of a building under Article 48 of the Building Act, it constitutes a case where a building is constructed in violation of this Act under Article 42 (1) 1 of the same Act or an order or disposition issued under this Act. Meanwhile, according to Article 42 (3) of the same Act, a building falling under Article 42 (1) 1 of the same Act shall not be installed or supplied, as long as the above conditions are met, the disposition of this case by the defendant is lawful, and if the alteration area of use is merely a part of the building and it does not deal with soil products, it cannot be said that the defendant's disposition has abused discretionary power.

(4) Ultimately, the judgment of the court below that made such a opinion is just, and there is no error in the misapprehension of legal principles as to the theory of lawsuit, and the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition with the assent of all participating judges.

Justices Jeon Soo-soo (Presiding Justice)