[1] In a case where construction permission, reporting, or completion inspection is conducted on a site, the sole passage of which is a dead-endlley road, whether the designation of the location as a road on the above alley road can be presumed to have been made solely on the ground that the main text of Article 44(1) of the Building Act provides the requirements for a contact with the site of the building (negative)

[2] The purport of Article 44(1) of the Building Act stipulating the requirements for contact with the building site, and the method of determining whether “the building site is deemed not to interfere with access to the building” under Article 44(1)1 proviso of the same Act

[1] Articles 2(1)1 and 44(1) of the Building Act / [2] Article 44(1)1 of the Building Act

[1] Supreme Court Decision 98Du12802 delivered on February 9, 1999 (Gong1999Sang, 491) / [2] Supreme Court Decision 98Du18299 delivered on June 25, 199 (Gong199Ha, 1527)

Plaintiff (Law Firm Na, Attorneys Go Hun-young et al., Counsel for the plaintiff-appellant)

Sacheon Market

Busan High Court (Chowon) Decision 2016Nu12014 decided June 14, 2017

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

The grounds of appeal are examined.

1. As to the second ground for appeal

A. According to the relevant provisions of the Building Act, the site of a building shall, in principle, adjoin the road at least two meters (main sentence of Article 44(1)). Here, the term “road” means a road where pedestrian traffic and motor vehicle traffic is possible, and its width is at least a certain size, and ① a road publicly notified for new construction or alteration pursuant to the National Land Planning and Utilization Act, the Road Act, the Private Road Act, and other relevant Acts and subordinate statutes, or ② a road designated and publicly notified by the competent administrative agency at the time of construction permission or reporting (amended by Act No. 5895, Feb. 8, 199; hereinafter referred to as “designated road by the competent administrative agency”) or a proposed road for two cases (Article 2(1)11): Provided, That if it falls under any exceptional ground, such as “where access to the building is deemed not impeded,” a building may be constructed without meeting such contact requirements (Article 44(1)11, etc. proviso of the same Act).

If a road is designated as an administrative agency through the designation of the location of the road pursuant to the above provisions of the Act and subordinate statutes, the owner of the site of the road is subject to restrictions on the use of land under the Building Act, and the location of the road ought to be clearly specified. Therefore, even if a construction permit, report, or completion inspection was made on the site of the road, which is the sole road traffic route, the main sentence of Article 44(1) of the Building Act stipulates that the site of the building should adjoin to the road at least 2 meters, it cannot be presumed that the designation of the site of the road was made on the ground that the main sentence of Article 44(1) of the Building Act stipulates that the site of the building should adjoin to the road (see Supreme Court Decision 98Du12802, Feb. 9,

B. The lower court acknowledged the following facts.

① On May 27, 2015, the Plaintiff filed an application with the Defendant for a building permit to newly construct one multi-family house (four stories, a total floor area of 625.28 square meters on the instant land owned by the Plaintiff) on the instant land. However, on October 19, 2015, the Defendant rejected the instant land (hereinafter “instant disposition”) on the ground that it did not adjoin the road under the Building Act.

② At the vicinity of the instant land, a closed-end access road (hereinafter “instant access road”) connecting the instant land to the rear door of the ○○ High School is located. The instant access road is located across several parcels of land owned by Nonparty 1, which is installed for the purpose of using the construction of school facilities and the passage of students, when Nonparty 1’s access to ○ High School was established around 1984, around 1984.

③ Around July 191, Nonparty 1 filed an application for a building permit with the Defendant to newly construct a 1st floor and a 421.81 square meters of a total floor area near the end of the instant access road, and obtained a building permit from the Defendant around August 1991. At the time of the said building permit, Nonparty 1 stated that the road abutting on the site at the time of the said building permit is 6 meters, and 8 meters of the width. However, a road with a width of 6 meters refers to the access road of this case, and a road with a width of 8 meters refers to an unclaimed urban planning scheduled road (which is abolished at the present urban planning facility).

On January 1, 1992, Nonparty 1 filed an application for change of a building permit with the content that a young child resource is changed to 2nd floor above the ground and 668 square meters above the total floor area, and at the time, the road width abutting on the site was eight meters above the site, and the Defendant permitted the change around February 192.

④ At present, ○○ High School and young children’s related parties use the access road of this case for the purpose of passage.

C. Based on such factual basis, the lower court determined that the Defendant could have designated the instant access road as a road because it could not be deemed that the road that was scheduled for urban planning of 8 meters wide was not yet established, and that it could have been possible for the Defendant to grant a building permit for young children even without designating the access road as to the instant access road because there was no obstacle to access through the instant access road. Accordingly, the lower court rejected the Plaintiff’s assertion that the instant access road constitutes a road under the Building Act, on the grounds that the factual basis alone does not mean that the Defendant clearly designated the road by specifying the section, extension, width, location, etc. of the instant access road, and that there was no other circumstance to deem the access road constitutes a road under the Building Act.

D. Such determination by the court below is acceptable as it is based on the relevant statutes and legal principles as seen earlier. Contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the designation of roads under the Building Act, or exceeding the bounds of the principle of free evaluation

2. Regarding ground of appeal No. 1

In the reasoning of a written judgment, it would be sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all allegations by the parties or methods of offence and defense (Article 8 of the Administrative Litigation Act and Article 208 of the Civil Procedure Act). Therefore, even if the specific and direct judgment on the matters alleged by the parties is not indicated in the judgment of the court, if it is possible to find out that the allegations have been cited or rejected in light of the overall purport of the reasoning of the judgment, it cannot be deemed an omission of judgment, and even if the decision was not actually made, if it is obvious that the assertion would be rejected, it does not affect the conclusion of the judgment, and thus, there is no illegality of omission of judgment (see, e.g., Supreme Court

The lower court did not explicitly determine the Plaintiff’s assertion that “the access road of this case was designated as a road under the Building Act at the time the building permit was granted to ○ High School Building.” However, the lower court comprehensively rejected the Plaintiff’s assertion on the ground that “the access road of this case was not a road under the Building Act” as seen earlier. Furthermore, even based on the record, there is no evidence to acknowledge the Plaintiff’s assertion. Therefore, this part of the allegation is obvious that it would be dismissed, and therefore, the allegation in the grounds of appeal on this part is without merit.

3. As to the third ground for appeal

A. The purport of Article 44(1) of the Building Act stipulating the requirements for the connection between the site of a building is to refrain from the act of constructing a building on land that is not abutting on the road by specifically regulating the relation between the site of the building and the road in order to maintain and preserve safe state of traffic, evacuation, fire, and sanitation. Therefore, in light of such purport, whether a building constitutes “cases where access to the building is deemed not impeded” under Article 44(1)1 of the same Act should be determined individually by taking into account specific circumstances, such as the type and scale of the building subject to the building permit, and the type of the facilities where the building site adjoins (see Supreme Court Decision 98Du18299, Jun. 25, 199, etc.).

Meanwhile, Article 211 of the Civil Act provides, “The owner shall have the right to use, profit from, and dispose of the property owned by him/her within the scope of the Act.” Thus, barring any special circumstance contrary to the legal principle of real right, deeming that the owner does not have the capacity of exclusive use and profit-making belonging to the core functions of ownership in addition to the waiver of the right to use and profit, or setting restrictions on the exercise of the right to use and profit-making, on the claim of the other party, does not exist (see, e.g., Supreme Court Decisions 2010Da81049, Jun. 28, 2012; 2017Da211528, Jun. 19, 2017).

B. (1) The lower court determined that it could not be deemed that Nonparty 1 renounced exclusive rights to use and benefit from the instant access road site, or renounced the Plaintiff’s right to use and benefit from, or set restrictions on the exercise thereof, on the following grounds.

① The access road site of this case is Nonparty 1’s private land.

② The access road of this case is set up by Nonparty 1’s ○ High School as a passage while establishing ○ High School. At the end, the access road of this case is a dead-end passage.

③ There is no facility used by the residence or many people in addition to ○ High School and Infantwons.

④ Since ○○ High School was established in a different place, there is no big obstacle to the passage of the instant access road even if the access road ceases to exist, and if Nonparty 1 ceases to operate an infant center, it is difficult to find a third party having a direct interest in the maintenance and continuation of the access road of this case.

⑤ In relation to the application for the instant building permit by Nonparty 1, Nonparty 1 clearly opposed to the use of the access road as a road.

(2) Furthermore, the lower court determined that, on the grounds that there is a possibility that the Plaintiff could sell a multi-household house as divided ownership, and that the purchaser believed that there was no impediment to the entrance and exit of the building, the possibility of legal disputes, such as Nonparty 1’s discontinuation of the operation of a multi-household house or the Plaintiff’s request for return of unjust enrichment, may not be ruled out, and that there is a concern for unexpected damages to the buyer, and thus, it does not constitute a case where there is no obstacle to the entry of the building.

C. In light of the aforementioned legal principles, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the waiver of exclusive use and right to benefit.

4. As to the fourth ground for appeal

In order to apply the principle of trust protection to an act of an administrative agency, ① an administrative agency must name the public opinion that is the subject of trust to an individual; ② an administrative agency’s statement of opinion is justifiable and trusted; ③ the individual should have trusted the opinion statement and committed any act corresponding thereto; ④ an administrative agency’s disposition contrary to its statement of opinion should result in an infringement of the interest of an individual who trusted the opinion statement of opinion; ⑤ When taking an administrative disposition in accordance with its statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interest of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006, etc.).

The court below determined that the disposition of this case is unlawful on the ground that the defendant's access road of this case is deemed a road at the surface of the building, and even if there is a building permit for warehouse facilities to the non-party 2, it is unlawful.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

5. 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 Jo Hee-de (Presiding Justice)