Whether Article 13(1) [Attached Table 1] [Attachment Table 1] 5(c)(A) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones constitutes a substitute land (negative) and the meaning of “land with existing houses located at the time of the designation of a development restriction zone at the time of the designation of the development restriction zone” (negative)

Article 13(1) [Attachment 1] 5(c)(a) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (Amended by Presidential Decree No. 24178, Nov. 12, 2012); “Land the category of which is a building site from the time of designation of the development restriction zone is a building site,” provides that a house can be newly built on the land with existing housing located at the time of designation of the development restriction zone shall be limited to the land whose land category is a building site and the current status of which is a building site.

In addition, “land with existing housing which had existed since the designation of a development restriction zone” under the above provision is defined as “land with existing housing,” and it can be seen as allowing new construction of existing housing in that it does not harm the living environment, etc. at the time of the designation of a development restriction zone in the case of newly constructing a house on the land with existing housing at the time of the designation of a development restriction zone, even if the land category registered as at the time of the designation of a development restriction zone is not a site, and ③ if the entire existing housing is located on the land designated as a development restriction zone, only a part of the existing housing can be newly constructed, the part of the land designated as a development restriction zone cannot be again constructed, and the land owner is at a disadvantage beyond the purpose of achieving the designation of a development restriction zone, and the part of the existing housing is referred to as “land with existing housing” from the time of the designation of a development restriction zone, and it cannot be deemed as “the whole land including the part of the

Article 12(1) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (Amended by Act No. 11690, Mar. 23, 2013); Article 13(1) [Attachment Table 1] subparag. 5(c) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (Amended by Presidential Decree No. 24178, Nov. 12, 2012)

Plaintiff

Head of Dong-gu Daejeon Metropolitan City

Daejeon High Court Decision 2013Nu1032 decided November 7, 2013

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

The grounds of appeal are examined.

1. Article 12(1) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 11690, Mar. 23, 2013; hereinafter “the Act”) provides that a person who intends to construct a building or build a structure, which falls under a facility for residential, living convenience and livelihood of residents in a development restriction zone and is prescribed by Presidential Decree, may do such act with permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu. According to the proviso of Article 12(1) of the Act, Article 13(1) [Attachment Table 1] of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 24178, Nov. 12, 2012; hereinafter “Enforcement Decree of the Act”) provides that a person who intends to construct a new building or build a new building on the land, the category of which was designated from the time of designation as a development restriction zone.

In the above provision, "land, the category of which has been large since the designation of a development-restricted zone," has been stipulated in the above provision so that houses can be newly constructed even on the land having existing houses since the designation of the development-restricted zone, only the land whose land category is large and whose present status is large shall not be included.

In addition, “land with existing housing from the time of designation of a development restriction zone” under the above provision is defined as “land with existing housing”, and (2) it can be seen as allowing new construction of existing housing in that it does not harm the living environment, etc. at the time of designation of a development restriction zone if a house is newly constructed on the land with existing housing at the time of designation of the development restriction zone, even if the land category entered in the public register at the time of designation of the development restriction zone is not a site, and (3) if a house can be newly constructed only when all existing housing is located on the land designated as a development restriction zone, only a part of the existing housing can not be newly constructed on the land designated as a development restriction zone, and it would be disadvantageous to its owner, taking into account the fact that a house cannot be again constructed on the land designated as a development restriction zone, and it means a part of the land with existing housing from the time of designation of the development restriction zone, and it cannot be said that it means only the whole

As indicated in its holding, the lower court rejected the Plaintiff’s assertion that the instant application site constitutes a land that can be permitted to construct a building pursuant to Article 13(1) [Attachment 1] [Attachment 1] [Attachment 5.c] of the Enforcement Decree of the Act on the ground that the land category on which the instant application site, which is part of the instant land, is “forest” and the land category on which the instant application site is registered, cannot be deemed as a large-scale land and cannot be deemed as a “existing housing site.”

In light of the records, the decision of the court below is justified in its conclusion that only if the entire building is located in the land designated as a development restriction zone, it is inappropriate to determine that it constitutes a “existing house” as at the time of the designation of the development restriction zone, but it cannot be deemed that there was an existing house on the land of this case, as recorded in the building ledger. Furthermore, even if one square meter of the existing house site is located in the land of this case, since the part of the above one square meter and the part planned as a site of the house to be additionally constructed separately from the existing house upon the application of this case does not overlap with each other, it cannot be deemed that the instant application does not constitute a “existing house” in which the land of this case was located at the time of the designation of the development restriction zone, and contrary to what is alleged in the grounds of appeal, it cannot be said that there was any error by misapprehending the legal principles on the requirements

2. Based on its stated reasoning, the lower court rejected all the Plaintiff’s assertion that the instant application form constitutes land eligible for permission to build a building pursuant to Article 13(2)1 of the Enforcement Decree of the Act and the Plaintiff’s assertion that the instant disposition violates the principle of trust protection.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the requirements under Article 13(2)1 of the Enforcement Decree of the Act, or by misapprehending the legal principles on

3. Therefore, the appeal is dismissed, 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 on the bench.

Justices Yang Chang-soo (Presiding Justice)