In the Army Chief of Staff, whether a disposition not to grant a building permit is appropriate for the security zone of the Army;

The Army Chief of Staff does not fall under the military facility protection area under the Protection of Military Installations Act, and there is no legal basis therefor, and therefore, it is illegal to permit the construction of neighboring site owners without permission, or to permit the construction of the building under the conditions other than the building laws and regulations, and even if illegal administrative dispositions were taken repeatedly over several times, such dispositions shall not be binding upon the administrative agency as administrative practices or administrative rules.

Article 5 of the Building Act, Article 3 of the Protection of Military Installations Act

Extent of harm

The head of Yongsan-gu Seoul Metropolitan Government

Multilateral garment

1. The plaintiff's claim is dismissed.

2. The costs of litigation arising between the Plaintiff and the Defendant and the costs incurred as a part of the Intervenor joining the Defendant are all borne by the Plaintiff.

The permission granted by the defendant against the defendant on April 4, 1988 shall be revoked.

Litigation costs shall be borne by the defendant.

1. First, we examine the main defense of the Defendant and the Intervenor joining the Defendant.

In full view of the whole purport of pleadings as follows: evidence Nos. 7 (No. 1, No. 1-6; hereinafter the same shall apply), evidence No. 1-1, No. 2 (Building Permit Notice), 3 (Site Investigation Report), 5, 7 (Building Permit Notification), and 8 (Building Permit Notification), for which no dispute over establishment arises, the Intervenor joining the Defendant filed an application with the Defendant for construction permission to construct a new building with the housing with the main purpose of No. 1, No. 2, No. 45 meters in total floor area of No. 1, No. 470. 98 square meters in total area, No. 2, No. 964 meters in total area, No. 1, and No. 964 meters in total area of the building on the same ground as the previous Defendant on April 1, 1988; No. 1, No. 564 meters in total area of the building on the same ground and No. 974 meters in total area of the building on the same site, No. 2, No. 1, No. 2694 meters in the same roof No. 782, No. 2, No. 9686, 74 meters in the same site.

The defendant and the defendant's intervenor asserted that the lawsuit in this case is unlawful since the plaintiff is not the other party to the construction permission disposition in this case and a third party, who is not the other party to the construction permission disposition in this case, is not a legal interest to seek revocation of the construction permission disposition in this case. Thus, in case where the third party, who is not the other party to the administrative disposition, has infringed legally protected interests due to the disposition, the plaintiff's ground for the lawsuit is legally entitled to receive the decision of the propriety of the disposition in this case by filing an administrative litigation seeking revocation of the disposition in this case. As seen later, the plaintiff's ground for the lawsuit is not only infringed upon the right of sunshine, such as blocking and expanding the prospect of the plaintiff's house directly adjacent to the building newly constructed by the defendant's illegal construction permission disposition in this case, but also caused enormous damages such as a threat of privacy by getting out the plaintiff's living room from the newly constructed building in this case and the above legal interest protected by the person living adjacent to the building in this case is not merely anti-private interest or de facto interest, but also protected

2. On the following grounds, the Defendant asserted that the instant building permit disposition is lawful, and against this, the Plaintiff’s building permit disposition is adjacent to the building site of 937 square meters of the above 726-284 site, the Plaintiff owned, and the Defendant’s Intervenor. The Defendant issued an illegal building permit to the Defendant, thereby infringing upon the right to sunshine, such as blocking and expanding the prospects of the Plaintiff’s housing owned by the Defendant, and thus causing enormous damages to the Plaintiff’s living room from the newly constructed building to the point of privacy peace. The Defendant did not put the Plaintiff’s land and its surrounding land on the ground that the Plaintiff’s new building and its neighboring land were a diplomatic control zone for the Army Chief of Staff, which were located within the scope of 1980 square meters away from the building permit, and thus, the Defendant did not put the above restriction on the construction permit to all and to the extent that it violated the law of the Plaintiff’s new building permit to the extent that it would not have any disadvantage to the Plaintiff’s construction permit construction permit imposed on the 11st floor or the above ground level.

그러므로 먼저 원고가 주장하는 첫번째 위법사유에 관하여 보건대, 성립에 다툼이 없는 갑 제5호증(건축허가신청반려), 갑 제6호증(건축허가통보), 갑 제9호증(진정서회시), 을 제2호증의 1(협의업무처리기준), 2(도면), 을 제3호증의 2(진정서), 3, 6(각 진정서처리) 을 제5호증의 1(민원서류이첩통보),2(건축허가통보), 을 제9호증(도시계획확인원), 원본의 존재 및 성립에 다툼이 없는 갑 제2호증(협조공문사본), 갑 제3호증(통제요청사본), 갑 제4호증(협조공문사본)의 각 기재에 변론의 전취지를 종합하면 피고는 육군본부의 협조요청에 따라 육군참모총장공관의 부지에 인접한 위 한남동 726의 284, 285 등 대지의 소유자들에 대하여 이들 대지가 주거지역으로 풍치지구에 속하고 군사시설보호법상의 제한을 받지 않는 토지임에도 불구하고 육군참모총장 공관보안구역이라는 이유로 1980년까지는 누구에게도 건축허가처분을 하여 주지 아니하였고 1982년에 이르러서는 건물구조는 지상 1층, 지하 1층 범위내, 지붕은 뾰족 솟은 지붕으로 하며 베란다설치 불가, 공관방향으로 출창문설치 불가, 공관쪽 담장은 견고하게 2.5미터이상, 공관쪽 담장주변에 상록수(6미터 이상)를 2미터 이상으로 식수, 월 1회 이상 육군본부관계관 점검필 등의 엄격한 제한하에 건축허가처분을 하여 주어 원고도 1982.10.경 피고로부터 이러한 조건하에 건축허가를 받아 주택을 신축하였음에 반하여 피고보조참가인은 건축법상의 규제만을 받았을 뿐 위 공관보안구역 통제에 따른 제한없이 이 사건 건축허가를 받은 사실은 이를 인정할 수 있으나 위 공관보안구역이라는 것은 군사시설보호법이 정하는 군사시설보호구역에 해당하지 아니하여 아무런 법률상의 근거가 없는 것이므로 피고가 위 공관보안구역이라는 이유로 위 공관의 인접대지 소유자들에 대하여 건축허가를 하지 아니하거나 건축법규가 정하는 규제 이외에 다른 조건을 부쳐 건축을 허가한 것은 위법하다고 할 것이고 따라서 위법한 행정처분이 수차례에 걸쳐 반복적으로 행하여 졌다 하더라도 그것이 위법인 이상 행정관례 내지 행정준칙으로서 피고에 대하여 구속력을 갖는 것이라고 할 수는 없으므로 피고가 종전과 달리 공관보안구역통제에 따른 조건을 붙이지 아니하고 다음에서 보는 바와 같이 건축법규에 적합하다 하여 이 사건 건축허가처분을 한 것은 적법하다고 할 것이어서 원고의 위 주장은 그 이유없다.

Next, in light of the purport of the Building Act, such as the fact that the plaintiff's basic nature of permission is not only the cancellation of prohibition, but also the purpose of the Building Act is to promote public welfare by prescribing the standards for site, structure, and equipment of the building (see Article 1 of the Building Act), it is reasonable to see that the application for building permit is a continuous discretionary act if it satisfies the requirements prescribed by the Building Act before comparing the profits that the other party to the building permit obtains and the disadvantages that the third party would suffer, and that it is reasonable to see that the building permit is to be granted if it exceeds 7,8, and 4-3 (Agreement) of evidence No. 4, without dispute over the establishment of the building site, and the whole purport of the argument as to the building site inspection of the building site by the plaintiff. According to Article 39 (1) and (2) of the Building Act, Article 84 of the Enforcement Decree of the Building Act, Article 14 of the Building Act, Article 4 of the Building Act (the same shall apply to the building permit No. 94 of the building site).

3. Accordingly, the plaintiff's claim of this case seeking revocation on the ground that the defendant's disposition of building permission of this case is unlawful is dismissed as without merit, and all costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

Judges Kim Young-jin (Presiding Judge)