건축물의 대지와 도로[Housing Herald = Reporter Kim Byeong-jo] If more than 2m of the building site is adjacent to the road according to Article 2, Subparagraph 11 of the Building Act, but there is a section with a width of less than 2m among the sections used as passages from the building to the road, an authoritative interpretation of the Ministry of Government Legislation came out that it does not violate Article 44, Paragraph 1 of the Building Act, which stipulates that more than 2m of the building site should be in contact with the road.
The civil petitioner asked the Ministry of Government Legislation for interpretation of the law because there was a part of the building site that is 2m or more in contact with the road, so it meets the requirements of Article 44, Paragraph 1 of the Building Act, but there is a part of the width from the adjoining part to the part of the building scheduled to be built, which is less than 2m wide.
In response, the Ministry of Government Legislation responded, “In this case, if the section used as a passageway from the building to the road does not interfere with access from the building to the road, considering all circumstances, it does not violate Article 44, Paragraph 1 of the Building Act.”
▲Reason
In Article 44, Paragraph 1 of the Building Act, the purpose of stipulating that the site of a building must be in contact with the road at least 2m (hereinafter referred to as “adhesion duty”) is to enable users of the building to maintain and preserve a safe state for traffic, evacuation, fire prevention, and hygiene. In other words, the relationship between the building site and the road is specifically regulated so that the construction of a building is not allowed on the land that is not adjacent to the road (see Supreme Court Decision 2003du6382, Dec. 26, 2003).
These regulatory provisions should be interpreted as strictly as possible, and should not be overextended or inferred in a way that is unfavorable to the regulated person (refer to the Supreme Court decision 2011du3388, sentenced on December 12, 2013).
However, the text of Article 44, Paragraph 1 of the Building Act only requires that “the building site must be at least 2m in contact with the road” and does not require that “the entire section from the building to the road must be at least 2m”. Therefore, as long as the building site is at least 2m in contact with the road, even if there is a section with a width less than 2m in the section from the building to the road, in principle, it cannot be regarded as a violation of Article 44, Paragraph 1 of the Building Act.
In addition, in the proviso of Article 44, Paragraph 1 of the Building Act, exceptions to the duty of access pursuant to the text of the same paragraph are recognized when it is recognized that there is no obstacle to access to the building or when there is a public space prescribed by Presidential Decree around the building.
Considering the purpose of Article 44, Paragraph 1 of the Building Act to promote safety by securing passages necessary for evacuation and fire prevention in the section from the building to the road, the site of the building does not come into contact with the road (refer to the Supreme Court decision 2003du 6382 sentenced on June 26, 2003 and the Supreme Court decision 98du 18299 sentenced on June 25, 1999) when it is recognized that there is no obstacle to access to the building. It is intended to allow construction activities even if the contact area is less than 2m.
However, whether or not a building falls under such exceptions must be determined in consideration of all circumstances, including the type and size of the building, whether there are obstacles obstructing traffic in the section from the building to the road, and whether or not the adjacent site is passable (refer to the Supreme Court decision 2003du 6382 sentenced on December 26, 2003 and the Supreme Court decision 98du 18299 sentenced on June 25, 1999).
If it is an exception, the part where the building site and the road meet does not necessarily have to be 2m or more, so as in the case of this case, even if there is a part with a width of less than 2m in the section from the building to the road, if there is no obstacle to entering the building through the section, it is not a violation of Article 44 Paragraph 1 of the Building Act.
