[1] Whether a disposition to approve a housing construction project plan under the Housing Construction Promotion Act is an act of discretion (affirmative)

[2] Whether an additional officer may be attached to a discretionary act without any legal basis (affirmative), and the content limitations of the additional officer

[3] The case holding that it does not constitute an illegal subsidiary because it was attached on the condition that the 65th generation's housing construction project plan is "the 65th generation's housing construction project plan's 'the 65th generation' construction of an entry road and the 'the 65th generation' construction

[1] The approval of a housing construction project plan under Article 33 of the Housing Construction Promotion Act is a so-called beneficial administrative disposition that entails the effect of giving rights and interests to the other party, and it is subject to the discretion of an administrative agency, unless otherwise stipulated in the Act and subordinate statutes.

[2] In discretionary action, additional clauses may be attached even if there are no legal grounds. The contents of such additional clauses shall be lawful and implementable, and they shall be in compliance with the principle of proportionality and the principle of equality, and shall not harm the essential effect of administrative disposition.

[3] The case holding that in case where a project proprietor (regional housing association) who intends to build 65 households' apartment houses obtains ownership of a site for access roads and installs arterial facilities, such as access roads, and donates ownership, etc., and establishes a passage replacing the existing passage of neighboring residents, which is closed following the implementation of the housing construction project, and imposes a condition that part of the site be donated, according to the relevant Acts and subordinate statutes, such as the Housing Construction Promotion Act and the Enforcement Decree of the same Act and the Regulations on Standards, etc. for Housing Construction Standards, etc., even if such conditions are attached, they impose an excessive burden beyond the necessary scope, and thus are not illegal as violating the principle of equity, etc.

[1] Article 33 of the Housing Construction Promotion Act, Article 1 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [3] Articles 33 and 1 of the Housing Construction Promotion Act, Article 1 of the Administrative Litigation Act / [general] Articles 27 of the Administrative Litigation Act

[1] Supreme Court Decision 95Nu9020 delivered on October 11, 1996 (Gong1996Ha, 3341) / [2] Supreme Court Decision 80Da731, 732 delivered on December 28, 1982 (Gong1983, 339), Supreme Court Decision 90Nu868 delivered on October 11, 1991 (Gong1991, 2737), Supreme Court Decision 91Nu4300 delivered on April 28, 1992 (Gong192, 1739), Supreme Court Decision 95Nu1762 delivered on April 26, 196 (Gong196, 1746)

Airport District Housing Association (Law Firm North Eastern Law Office, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government

Seoul High Court Decision 95Gu36864 delivered on October 10, 1996

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

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court: (a) held that on March 30, 193, the Plaintiff was not obliged to use the above part of the building site for less than 40 square meters and was not in compliance with the above construction plan for less than 90-2, 7, and 16 pieces of land (hereinafter referred to as “land subject to construction”; (b) the Plaintiff was not in compliance with the above construction project plan for less than 9-4 square meters and applied for the approval of the alteration of the size of the above land on the ground that it was not in compliance with the above construction plan for less than 10-6 square meters and less than 9-4 square meters for an apartment lot for less than 10-6 square meters and less than 9-4 square meters, and that the Plaintiff was not obliged to use the above construction site for less than 10-6 square meters and was not obliged to use the above construction site for less than 9-1,000 adjacent to each apartment lot for less than 40-16 square meters.

2. Article 33 (1) of the Housing Construction Promotion Act provides that "any person who intends to construct housing of more than the number prescribed by Presidential Decree, or to create a site in excess of the size prescribed by Presidential Decree shall prepare a business plan and obtain the approval of the Minister of Construction and Transportation." Paragraph (2) of the same Article provides that "the business plan referred to in paragraph (1) shall be prepared to be suitable for carrying on a healthy and cultural residential life, and such business plan shall include a plan for the installation of incidental facilities and welfare facilities." Article 33-2 (1) of the same Act provides that "the project owner shall, where he has completed the housing construction project or the housing site preparation project to be implemented with the approval of the business plan referred to in Article 33 (1), undergo a usage inspection for the housing, incidental facilities, welfare facilities, and housing site as prescribed by Presidential Decree." Article 34 (1) of the Enforcement Decree of the same Act provides that "a person who conducts a usage inspection pursuant to Article 33-2 of the same Act shall also meet the standards for the housing construction construction plan approved by the project operator, and shall not comply with the approved construction plan."

However, approval of the housing construction project plan under Article 33 of the Housing Construction Promotion Act is merely an administrative disposition that grants rights or interests to the other party, and it belongs to the administrative agency’s discretion as to the requirements of administrative disposition (see Supreme Court Decision 95Nu9020, Oct. 11, 196). Since the Act and subordinate statutes provides that the term “intersection 6 or more of the existing housing construction project plan shall be more than 6 months old for the construction of the housing complex” and the term “intersection 6 or more of the existing housing complex construction project plan” shall be set up for the term of 10 or more units of the housing complex construction project, and the term “intersection 6 or more of the existing housing complex construction project plan shall be more than 6 meters old for the construction of the housing complex” (see, e.g., Supreme Court Decisions 90Nu868, Oct. 11, 191; 96Nu167, Apr. 27, 1996).

Therefore, in the event that the plaintiff, who obtained the approval of the housing construction project plan that was properly attached, failed to perform his duty to build access roads, etc. and contribute them pursuant to the relevant subsidiary prior to the date of inspection for use, it cannot undergo a pre-use inspection under Article 33-2 (1) of the Housing Construction Promotion Act because it is inappropriate to the content of the approved project plan, and as long as the width of the stairs and the stairs gate, among the apartment buildings, is not corrected without correction, it is also impossible to undergo a pre-use inspection on the ground that it is inappropriate to the content of the approved project plan. Thus, the defendant's disposition rejecting the pre-use inspection on the above apartment on the ground

The above judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as the theory of lawsuit. There is no ground for appeal.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)