Plaintiff 1 and one other (Law Firm Cheongnam, Attorneys Kim Jong-young, Counsel for the plaintiff-appellant)

Jincheon-gun (Law Firm Busan High-gun, Attorneys Ahn Jin-jin, Counsel for defendant-appellant)

September 27, 2017

Cheongju District Court Decision 2016Guhap1266 Decided January 19, 2017

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant's disposition of non-repair of each temporary building on March 11, 2016 against the plaintiffs shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion and the related laws

The court's explanation on this part is the same as the entry of each corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is cited by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination

1) As to the plaintiffs' assertion that Article 58 of the National Land Planning and Utilization Act was unlawful by the defendant as the basis for each of the dispositions of this case

In full view of the following circumstances, such as the entire system of the Building Act (amended by Act No. 14792, Apr. 18, 2017; hereinafter the same) and the overall system, it is reasonable to deem that the receipt of a report on the construction of a temporary building is deemed the execution of the relevant authorization and permission, such as permission for development activities. Therefore, in determining whether to accept the report on the construction of a temporary building, an administrative agency should examine whether it meets the criteria for permission for development prescribed in Article 58 of the National Land Planning and Utilization Act. Therefore, the rejection of the report on the construction of a temporary building by the plaintiffs on the ground that it fails to meet the criteria for permission for development activities in this case is

(1) Construction of a building shall be subject to permission for development activities pursuant to Article 51 (1) 1 of the Enforcement Decree of the National Land Planning and Utilization Act. Construction of a temporary building is included in construction of a building in the concept of concept, permission for development activities may be required.

② Article 11(5) of the Building Act that is deemed to have obtained permission for development activities, etc., and Article 11(5) of the same Act that provides that a building report shall also apply mutatis mutandis to a building report pursuant to Article 14(2) of the Building Act. As such, a person who receives a building report does not need to obtain permission for development activities separately. The purport of the Building Act, which establishes the legal fiction of authorization and permission under the Building Act, is to protect the rights and interests of the people by simplificationing and simplification of the counter and saving the cost and time of the construction permission or the building report to the competent administrative agency in relation to the legal fiction of authorization and permission (see, e.g., Supreme Court en banc Decision 2010Du14954, Jan. 20, 201). Meanwhile, given that the relevant authorization and permission, such as permission for development activities, is necessary in relation to the reporting of construction of a temporary building, the same applies to a building report that needs to protect the rights and interests of the people by simplification the procedures related to the matters of authorization and permission.

③ According to Article 15(5) and (7) of the Enforcement Decree of the Building Act, a temporary building subject to reporting on the construction of a temporary building is a disaster relief, entertainment, exhibition, or construction temporary building, a prefabricated and light-weight structure security building, a building and garage for container temporary office or lodging, and a plastic house for agricultural and livestock industry, etc. In the meantime, Article 20(5) of the Building Act and Article 15(6) of the Enforcement Decree of the Building Act excludes the application of the Building Act on the construction supervision of the building, building register, building site register, building structure, earthquake-proof, finishing materials, building-to-land ratio, height restriction, etc., according to the type of the temporary building. Comprehensively considering these provisions, separately from the provisions on the construction report of a temporary building under Article 20(3) of the Building Act, the construction report of a temporary building may be deemed to have been provided to the effect that the construction of a temporary building is more relaxed than that of the general building by reflecting the characteristics of the building in need for regulation as above.

④ However, in the case of a building permit or a building report, the permission for development activities, etc. is deemed to be deemed granted pursuant to Article 11(5) of the Building Act, and if it is deemed that the report on the construction of a temporary building does not constitute the legal fiction of the permission for development activities, the person who intends to refuse the construction of the temporary building shall obtain separate permission for development activities, etc. under the National Land Planning Act after the building report is filed, and the administrative agency may refuse the construction of the temporary building by not granting the permission for development activities even after accepting the report on the construction of the temporary building. This forces a temporary building to obtain separate authorization and permission for each type of temporary building by applying a complex administrative procedure more complicated than that of the general building, and it is inconsistent with the structure of the building law that intends to apply more relaxed regulations. In addition, it does not coincide with the purport of the authorization and permission system that intends to protect the rights and interests of the people by cutting off costs and time.

2) Whether the discretion is deviates or abused or not

A) When examining whether an administrative agency’s permission to engage in development activities likely to damage or pollute the environment, it should be carefully determined by comprehensively taking into account the legislative purport of various regulations on the utilization status and balance of rights and interests, and the protection of environmental rights among interested parties who have conflicting interests with those of the relevant region, such as living environment, etc. Therefore, the determination and determination should be made by specifying environmental rights under the Constitution, “All citizens shall have the right to live in a healthy and pleasant environment, and the State and citizens shall endeavor to preserve the environment” (Article 35(1)), and at the same time, imposing an obligation on the State and citizens to endeavor to preserve the environment. Based on the constitutional ideology of the Framework Act on Environmental Policy, the rights and duties of the citizens to endeavor to preserve the environment and the duties of the State and local governments, the business entities, and all of them should be determined by specifying the duties of the State and local governments to make efforts to protect the environment (Articles 1, 4, 5, and 6), the State, local governments, business entities, and citizens should consider environmental preservation preferentially all acts using the environment (see Article 20).

B) In the instant case, comprehensively taking account of all the following circumstances, the Defendant’s refusal to accept each of the instant reports by taking into account the descriptions and images of the evidence Nos. 4, 5, 7, 8, 9, 10, 17, and 18 as a whole, and the purport of the entire pleadings, the Defendant cannot be deemed to have violated the principle of equity by discriminating against the permission to construct other fish farms and fish farms, and the public interest to be achieved by the Defendant’s each of the instant dispositions is deemed to be more than the private interest to be achieved by the Plaintiff by constructing each of the instant temporary buildings. Accordingly, each of the instant dispositions cannot be said to have violated the principle of proportionality. Accordingly, there is no violation of law of deviation or abuse of discretionary power.

① The farmland adjacent to each of the instant lands and most of the surrounding farmland are farmland certified by the Jincheon-gun Agricultural Technology Center as cultivating unregistered and eco-friendly rice. In other words, each of the instant land is located in the sprink of the agricultural chemical rice complex developed with Gyeongcheon-gun Agricultural Technology Center. In other words, each of the instant land will be located in the sprinking of the agricultural chemical rice complex developed with Gyeongcheon-gun Agricultural Technology Center. In the instant land, the damage will be increased due to the characteristics of the nearby farmland cultivating rice without agricultural chemicals, and the damage will be expected to be greater, and the certification of agricultural chemicals will be revoked if agricultural chemicals are used to prevent such damage.

② When a stable is constructed on each land of this case in the duct of a rice cultivation complex, it seems that the natural landscape and aesthetic view in the surrounding area is likely to be impeded. It seems that malodor, water pollution, and soil pollution are likely to be infringed on the environmental interest of neighboring residents.

③ Even if the Plaintiffs are unable to establish livestock pens on each of the instant land, they are able to recover the expenses invested by selling each of the instant land, while the environment and economic disadvantages that may be incurred by neighboring residents are unlikely to be prevented or restored if it is permitted to set livestock pens on each of the instant land.

④ The Plaintiffs asserts that, under the principle of equity, the construction of stables on each of the instant land should also be permitted to the Plaintiffs, as the Defendant recently allowed the construction of fish farms, fish farms, and fish pens in the vicinity of each of the instant land. However, due to “the access road to the Seocho Cancer Industrial Complex,” which was to be constructed at a height of 4.5 meters around 2018, only one farmland is divided into a fish farm and fish farm, etc. where the Plaintiff asserts, and an agricultural agricultural chemicals-free rice cultivation zone where each of the instant land is located, and upon completion of the construction of the said road, the two districts cannot be treated equally. However, the above two districts cannot be treated equally because the previous building, such as fish farms, fish farms, and fish pens, is located in the above access road construction zone (an agricultural chemicals-free zone without rice cultivation), while each of the instant land is located in the zone where each of the instant land was recently issued, no land is in violation of the principle of equity.

As to this, the Plaintiffs asserted to the effect that the circumstance that the above access road was established is not included in the grounds for dispositions of this case by the original defendant, and thus, the Defendant cannot assert in the lawsuit of this case. As such, the circumstance that the one farmland is divided into two zones due to the opening of the access road does not fall under the grounds for disposition of this case itself, but is an indirect fact supporting that each disposition of this case does not go against the principle of equity, and has already existed at the time of each disposition of this case. Accordingly, the Defendant can assert it in the lawsuit, and this cannot be said to constitute an illegal addition or alteration of the grounds for disposition.

[On the other hand, unlike the above-mentioned Paragraph 1, in the case of the report on the construction of a temporary building, the provision on authorization and permission under the Building Act does not apply to the report on the construction of a temporary building, and even in the case where an administrative agency deems it impossible to return the report on the construction of a temporary building by using the lack of requirements for permission for development activities under the National Land Planning Act as a direct disposal ground, the defendant is still entitled to refuse to accept the report on the construction of each temporary building of this case, on the grounds of significant public interest. As seen earlier, the defendant presented to the plaintiff the reason that the disposition in this case does not fit the land use status and the land use plan in the surrounding area and does not harmonize with the surrounding environment, and it does not conform to the criteria for permission for development activities, and it can be widely seen to the purport that the acceptance of the above report is refused on the grounds of the above-mentioned reason for the important public interest like the above-mentioned reason. Therefore, the legitimacy of each disposition in this case is ultimately determined to be a deviation or abuse of discretionary power, which leads to the conclusion earlier).

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit. The judgment of the court of first instance, which has different conclusions, is unfair, so the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed.

Judges Shin Jae-sop (Presiding Judge)