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(영문) 대법원 2019. 4. 25. 선고 2018두49642 판결
[기타이행강제금부과처분취소][공2019상,1189]
Main Issues

Whether permission for installation of bulletin facilities under the former Advertisement, etc. Control Act should be separately obtained for advertising towers established with permission for construction of structures under the former Building Act, which was enforced at the time of September 190 (negative)

Summary of Judgment

With the delegation of the former Advertisement Control Act (wholly amended by Act No. 4242 of Aug. 1, 1990), there is no legislation regulating the construction of an advertising tower in terms of safety and aesthetic view except for the former Building Act (wholly amended by Act No. 4364 of Mar. 8, 191), and the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 13249 of Jan. 14, 1991), the provisions of Article 2 of the former Enforcement Rule of the Advertisement Control Act (wholly amended by Act No. 1885 of Jan. 10, 1981; hereinafter referred to as the "Enforcement Rule of the former Seoul Metropolitan Government Advertising Act") shall not be applied to the advertisements or bulletin facilities that fall under “the installation or spread by other Acts and subordinate statutes,” and therefore, Article 8(1)4 of the former Enforcement Rule of the Act on the Construction and Report of Advertisements shall not be applied to the height exceeding the height of the regulatory tower.

[Reference Provisions]

Articles 2 (see current Article 2 of the Act on the Management of Outdoor Advertisements, etc. and Promotion of Outdoor Advertisement Industry), 3 (see current Article 4 of the Act on the Management of Outdoor Advertisements, etc. and Promotion of Outdoor Advertisement Industry), 4 (see current Article 4 of the Act on the Promotion of Outdoor Advertisement Industry), 5 (1) (see current Article 11 (1)), 49 (see current Article 83 of the Act), 100 (1) 3 (see current Article 118 (1) 3) of the former Building Act (see current Article 118 (1) 3) of the former Building Act (Amended by Act No. 4364, Mar. 8, 191);

Plaintiff-Appellee

Plaintiff (Law Firm Jung-il, Attorney Seo-Gyeong et al., Counsel for the plaintiff-appellant)

Defendant-Appellant

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Han-ro, Attorneys Ha Tae-ro, Counsel for defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 2017Nu82170 decided June 15, 2018

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal are examined.

1. Case overview and key issue

A. According to the facts acknowledged by the lower court, the following facts are revealed.

The advertising tower at a height of six meters was installed with a building permit under the former Building Act (amended by Act No. 4364, Mar. 8, 1991; hereinafter “former Building Act”). However, the former Advertisements, etc. Control Act (wholly amended by Act No. 4242, Aug. 1, 1990; hereinafter “former Outdoor Advertisements, etc.”) which was in force at the time and thereafter amended by the former Outdoor Advertisements, etc. Control Act (amended by Act No. 4242, Aug. 1, 1990; hereinafter “former Outdoor Advertisements, etc.”) or the former Outdoor Advertisements, etc. Control Act (amended by the Outdoor Advertisements, etc. Control Act No. 4242, Aug. 1, 1990; hereinafter “ Outdoor Advertisement Act”) which was in force at the time of September 6, 2016, it did not obtain the building permit for the advertisement tower in this case for a certain period of time.

B. The key issue of the instant case is whether there was a need to separately obtain permission for installation of bulletin facilities under the former Advertising Act or the Outdoor Advertisements Act in addition to permission for construction of structures under the former Building Act regarding the instant advertising tower at the time of the first installation of the instant advertising tower and thereafter.

2. Whether permission for installation of a bulletin facility under the former Advertising Act should be obtained in addition to permission for construction of structures under the former Building Act (Ground of appeal No. 1)

A. (1) At the time of the establishment of the advertising tower in this case, the former Advertising Act clearly defines the “advertising” and the “facilities to be posted,” which are structures installed to display the advertisements to the public outside (Article 2). If it is necessary to maintain scenic landscapes, public morals, or to prevent harm to the public, the area, place, and objects where the advertisements may be displayed, distributed, or installed on the bulletin facilities (Article 3(1)), or the shape, area, color, content of the bulletin facilities, or the display and dissemination of advertisements, or the installation of bulletin facilities (Article 4(1)), and such prohibition and restriction are to be set in the form of the Seoul Special Metropolitan City Regulations, the Busan Metropolitan City Rules, the Busan Metropolitan City Rules, and the Do Rules (Article 3(2) and Article 4(2)).

In accordance with the delegation, the former Enforcement Rule of the Advertisement, etc. Management Act (amended by the Seoul Metropolitan Government Rule No. 1841, Feb. 8, 1980; hereinafter referred to as the "Enforcement Rule of the former Seoul Metropolitan Government Advertising Act") provides that the provisions of Article 2 shall not apply to cases where an advertisement or a bulletin facility falls under “a display or a spread in accordance with other Acts and subordinate statutes” when it is intended to display or spread an advertisement on a certain area, place, or object, or to install a bulletin facility (Article 2(1)).

The system of permission for and reporting on the installation of bulletin facilities prescribed in Article 2 of the Enforcement Rule of the former Seoul Metropolitan Government Advertising Act is to regulate the safety and aesthetic view of the bulletin facilities as “to maintain aesthetic morals and public morals or to prevent harm to the general public” as stated in Articles 3(1) and 4(1) of the former Advertising Act, which are the grounds for delegation. However, Article 2 of the former Enforcement Rule of the Advertising Act only provides that the procedures for permission and reporting shall be required in advance when it is intended to install bulletin facilities in certain areas, places, and objects in order to ensure the safety and aesthetic view of the bulletin facilities, and does not provide detailed standards for installation

(2) Articles 5(1) and 49 of the former Building Act, and Article 100(1)3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 13249, Jan. 14, 191) upon delegation of the said provisions apply mutatis mutandis to the construction of an advertising tower, advertising board, and other similar structure with a height exceeding four meters to regulate the safety and aesthetic view of the building. Therefore, with respect to the construction of an advertising tower exceeding four meters in height, there were more detailed regulations than that of the former Act to ensure the safety and aesthetic view of the structure.

(3) At the time of February 8, 1980, when the former Enforcement Rule of the Advertising Act was enacted, there was no legislation regulating the construction of an advertising tower in terms of safety and aesthetic view except the former Building Act. Article 8 Subparag. 1 of the former Enforcement Rule of the Advertising Act ought to be deemed to apply the former Building Act that has a higher regulatory level in terms of the safety and aesthetic view of the structure with respect to an advertising tower exceeding four meters. Therefore, the former Building Act governing permission for the construction of an advertising tower exceeding four meters in height may be deemed to fall under “other Acts and subordinate statutes” as stipulated in Article 8 Subparag. 1 of the former Enforcement Rule of the Advertising Act, and it is reasonable to view that if a building permit was granted pursuant to the former Building Act and subordinate statutes, it is unnecessary to separate the procedures for permission for and reporting on a bulletin facility under Article 2 of the former Enforcement Rule of the Advertising Act with lower regulatory intensity

The proviso of Article 4(2) of the former Enforcement Decree of the Outdoor Advertisements, etc. Control Act (amended by Presidential Decree No. 13242, Jan. 8, 191; Presidential Decree No. 13200, Jan. 8, 1991) provides that among bulletin facilities subject to permission under the Outdoor Advertisements Act, those facilities subject to permission under the Building Act shall be substituted by permission under the Building Act. This provision clearly states that permission for installation of bulletin facilities under the Outdoor Advertisements Act need not be obtained in cases where bulletin facilities

(4) Unlike the case of a temporary building whose retention period is limited, the former Building Act does not have a provision that limits its retention period for the structure. Therefore, a structure legally installed with a building permit may continue to maintain without the need to obtain a permit for renewal of its retention period, except in the case of a structure subject to a removal order due to its deterioration, etc., or due to its violation of a new building or urban planning regulation.

After the construction of the advertising tower of this case, the Outdoor Advertisement Act amended several times from the time of 2016 to the time by the Defendant imposed the enforcement fine of this case has not provided that in the case of the bulletin facilities lawfully installed after obtaining permission for construction of structures pursuant to the Building Act, the regulations such as permission for installation of bulletin facilities and restriction on retention period under the Outdoor Advertisement Act and subordinate statutes shall not be

(5) In short, since the instant advertising tower obtained a building permit under the former Building Act at the time of installation on September 1990, there was no need to separately obtain permission for installation of bulletin facilities pursuant to Article 2(1) of the former Enforcement Rule of the Advertising Act and Article 2(1) of the former Enforcement Rule of the Advertising Act pursuant to the former Advertisement Act and its delegation. Thereafter, permission for installation of bulletin facilities or for extension of its retention period pursuant to the Outdoor Advertisement Act and its amended regulations

B. The lower court determined that the instant disposition imposing the instant charge for compelling compliance, based on the premise that the instant advertising tower constitutes “unauthorized bulletin facilities” under the Outdoor Advertisement Act, was unlawful, inasmuch as the instant advertising tower was legally installed upon obtaining permission for construction of structures under the former Building Act, it does not need to obtain separate permission for installation of bulletin facilities under the former Act or the former Act amended thereafter. In so doing, the lower court did not err by misapprehending the legal doctrine on the permission for installation of bulletin facilities under the former Act or the Outdoor Advertisement Act, contrary to what is alleged in the grounds of appeal.

3. Whether the instant advertising tower constitutes “unauthorized bulletin facilities” under the Outdoor Advertisements Act (Ground of appeal No. 2)

The lower court determined that the instant advertising tower’s rejection disposition of permission for display of the instant advertisements, etc., premised on the fact that the instant advertising tower constitutes “unauthorized bulletin facilities” under the Outdoor Advertisements Act was unlawful. As seen in the foregoing 2. As seen, the instant advertising tower does not constitute “unauthorized bulletin facilities” under the Outdoor Advertisements Act, and thus, this judgment below is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the authority to deliberate on the “Advertisements Control and Design Deliberation Committee” or

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)

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