When a statute is wholly amended, does its old transitional rule still apply? Supreme Court Decision 2017Du74320 on 'special circumstances' and a serious public interest need

Question

A statute may define a term such as 'road' and then add a transitional rule in its supplementary provisions deeming things already in existence to fall within the definition. When the statute is later wholly amended and the amending Act carries no equivalent transitional rule, the question is whether the old rule is spent with the rest of the old Act or survives. A second question is whether an authority may refuse a building report that breaches no express limit, where a serious public interest need would be defeated by the building.

Decision 2017Du74320 raises both. The Plaintiff bought land that had served as a de facto road for neighbouring residents and on 4 August 2016 reported his plan to build a two-storey house on it. The Head of Dongdaemun-gu Office refused on 19 August 2016 because the land was a road under the Building Act. The first-instance court upheld the claim, holding the land was not such a road; on appeal the defendant added that blocking the residents' passage would run against the community and the residents' interests. The appellate court treated that addition as a preliminary defence of abuse of rights and did not decide it.

Material to check

The current articles are Article 11 of the Building Act, under which a person who builds or substantially alters a building must obtain permission from the Special Self-Governing Mayor, Special Self-Governing Do Governor, or the mayor, county head or ward head, with listed deemed permits and listed grounds on which permission may be withheld after review by the building committee; and Article 27 of the Administrative Litigation Act, under which a court may cancel a disposition within an administrative agency's discretion where the discretion is exceeded or abused. The decision also cites the former Article 2(15) of the Building Act, in the version before its amendment by Act No. 2188 of 1 January 1970, the former Article 2(15) of the Building Act, in the version before its amendment by Act No. 3073 of 31 December 1977, the Additional Provision of 31 December 1975, paragraph 2 (now deleted), and the former Article 2(11) of the Building Act, in the version before its amendment by Act No. 4381 of 5 August 1993.

The decisions are Decision 2017Du74320 and four precedents. Decision 2006Du19419 (27 November 2008) held, in a tax case, that a transitional rule in the supplementary provisions of a wholly amended Act lapses in principle but may survive on 'special circumstances', and found such circumstances. Decision 2011Du815 (27 January 2012) held that a passage already made a road under the old Additional Provision, paragraph 2, did not revert to a bare de facto path when the Building Act was wholly amended. Decision 2011Du27322 (15 March 2012) held the same on that transitional rule and upheld the withdrawal of acceptance of a building report where the public interest in not blocking passage outweighed the owner's protected interests. Decision 2014Du15504 is cited alongside it.

Possible readings

A full amendment amounts to repeal and fresh enactment, so the old Act's body provisions and its supplementary provisions all cease to have effect, and a transitional rule in the old supplementary provisions is spent with them. The decision states that as the principle, and Decision 2006Du19419 states the same for a wholly revised Act.

The exception is 'special circumstances'. These cover not only a provision in the amending Act expressly keeping the old transitional rule in force, but also, absent such a provision, exceptional circumstances showing the old rule should continue to apply. Whether they exist is judged individually and concretely, weighing the legislative background and purpose of the old rule, the purpose and overall structure of the wholly amended statute, whether treating the rule as spent would leave a gap in the law, and all other circumstances. Decision 2006Du19419 applied that approach to the supplementary provisions of the Tax Reduction and Exemption Regulation Act and found 'special circumstances' against the full amendment of 31 December 1993 by Act No. 4666.

On the refusal question the decision states, citing Decision 2011Du27322 and Decision 2014Du15504, that the permission authority may refuse to accept a building report even where it conflicts with no express limit in the Building Act, the Framework Act on National Land Planning and Use or other related statutes, if a serious public interest need requires that building be not allowed. In an action for cancellation the authority may add or change reasons so far as the new reason shares a basic factual identity with the original, judged by whether the underlying social facts are identical in essentials before any legal characterisation; the decision states that standard, citing Decision 2000Du8684 (28 September 2001).

What the decisions held

Decision 2017Du74320 set aside the Seoul High Court's judgment of 15 November 2017 (2017Nu54618) and remanded the case. On the road question it upheld the appellate court. Applying the rule on old transitional provisions, it held that the old Additional Provision of 31 December 1975, paragraph 2, did not lapse with the Building Act wholly amended by Act No. 4381 of 31 May 1991: omitting an equivalent rule only reflected that most roads had by then been designated by the mayor or county head, so keeping the old rule was less necessary, and did not show a purpose of stripping de facto roads already made statutory roads of that status; and treating the rule as spent would leave a legal gap over those roads and unsettle the trust and legal stability of interested parties, especially nearby owners using them as access. Even so, the finding that this land was not a road under the Building Act, since there was no evidence it was at least 4 m wide before 1 February 1976 or that the mayor or county head had designated its location, was in line with that law and showed no error.

The reasons record the facts. Land of 566㎡ in Seoul Dongdaemun-gu was divided on 21 March 1975 into four parcels of 132㎡, 136㎡, 126㎡ (this land) and 172㎡; the other three were transferred and each had a detached house built with permission, and from then this land was used as a de facto road by neighbouring residents, with a sewer line beneath it. The Plaintiff knew this use when buying the land. Building as planned would leave parcel ② landlocked, cut off vehicle access to the car park on parcel ①, and block the auxiliary entrance to the building on parcel ④. After the first-instance judgment for the Plaintiff, the defendant added on appeal that blocking the residents' passage would run against the community and the residents' interests, that the building should not be allowed, that the refusal was lawful and in the public interest, and that the report and the action were an abuse of rights.

On that record the Court held that the original reason for the refusal and the added reason differed only in the legal characterisation of the de facto road, both resting on the land's actual use as a road that made house-building impermissible, so a basic factual identity was present and the addition was admissible. It further held that a serious public interest need existed to keep the building from blocking the residents' passage, that this need far outweighed the Plaintiff's exercise of property rights, and that the added reason was justified, so there was room to regard the refusal as lawful in the result. The appellate court had dismissed the addition as a preliminary defence of abuse of rights and had not decided the added reason; the Court held that this misunderstood the standards for adding reasons and for a serious public interest need and failed to conduct the necessary examination, affecting the outcome.

Points left open

The decision does not finally hold the refusal lawful. It holds the added reason justified and says there is room to regard the disposition as lawful in the result, yet it set the judgment aside and remanded the case for further fact-finding and judgment, leaving the final assessment of the disposition's lawfulness to the court below. It also left undecided the defendant's contention that the report and the action were an abuse of rights.

The boundaries of the rules are unsettled too. The decision gives the factors for 'special circumstances' but no threshold, so their application to a transitional rule of some other statute is left to case-by-case judgment. It states that an authority may refuse a building report on a serious public interest need but does not fix how strong that need must be, and it found a basic factual identity on these facts without saying where the line lies for a reason resting on different social facts.

When to reconsider

We revisit this brief if the judgment on remand fixes whether the added reason justifies the refusal or decides the abuse of rights point, if a later Supreme Court decision states a threshold for a serious public interest need or the outer limit of adding reasons for a disposition, or if Article 11 of the Building Act, Article 27 of the Administrative Litigation Act or the Building Act's definition of 'road' is amended.

Statutes referred to

• 구 건축법 제2조
• 건축법 제11조
• 행정소송법 제27조

Decisions referred to

• 대법원 2019. 10. 31. 선고 2017두74320 판결 · Decision ledger
• 대법원 2012. 3. 15. 선고 2011두27322 판결
• 대법원 2012. 1. 27. 선고 2011두815 판결
• 대법원 2008. 11. 27. 선고 2006두19419 판결

Verification status

Decision 2017Du74320 was read at the National Law Information Center on 24 October 2026 in its published holdings, summary and reasons, and the cited articles in their current text as marked and the cited precedents in their published holdings and summaries. Decision 2014Du15504 is left aside because its text could not be opened.